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much of the work be taken, in form and substance, that the value of the original work is sensibly diminished, or the labors of the author are substantially, to an injurious extent, appropriated by another, it constitutes, in law, pro tanto, a piracy. But a fair and real abridgment, or a fair quotation, made in good faith, is no violation; and of this intent the jury are to judge.? (a) If the main design be not copied, the circumstance that part of the composition of one author is found in another is not of itself piracy sufficient to support an action. Nor will it suffice, if the effect of the new publication is prejudicial in some degree to that of the plaintiff, unless it is substantially so. If it is substantially a copy, it is actionable, however innocent the intention of the defendant in publishing it; on the other hand, if it is not substantially a copy, or a colorable selection, or an abridgment, the publication is lawful, however corrupt the motive. It is the middling class of cases which involve the greatest difficulty, namely, where there is not only a considerable portion of the plaintiff's work taken, but also much that is not; and here the question, upon the whole, is, whether it is a legitimate use of the plaintiff's publication, in the fair exercise of a mental operation, entitling it to the character of an original work.3

$ 515. Defences. In the defence of this action, on other grounds than that of defect in the plaintiff's case, it may be shown that the plaintiff's publication was itself pirated, or that it was obscene, or immoral, or libellous, either on government or on individuals ; or that it was in other respects of a nature mischievously to affect the public morals or interests. But in equity, it seems, that an injunction may be granted, notwithstanding the bad character of the subject, if the author, repenting of his work, seeks by this mode to suppress it. If the defence is made under the plaintiff's

1 2 Kent, Comm. 383, n. (b), 4th ed. ; Roworth v. Wilkes, 1 Campb. 94.

2 Ibid. ; Godson on Patents, pp. 447, 478; Maugham on Literary Property, pp. 98, 99, 129–132.

3. Wilkins v. Aikin, 17 Ves. 422, 426. It is sometimes said, that in these cases the question is whether it was done animo furandi or not. But the accuracy of this test is not very readily perceived. The subject of infringement is copiously discussed in Curtis on Copyright, c. 9, pp. 236-305. And see Webb v. Powers, 2 W. & M. 497.

4 In order to prove a prior publication in a foreign country, it is not enough to prove, by a witness, that he has seen it there in print, without accounting for the nonproduction of the printed copy. Boosy v. Davidson, 13 Jur. 678.

6 Godson on Patents, pp. 478, 479 ; Maugham on Literary Property, pp. 88–99. 6 Southy v. Sherwood, 2 Meriv. 438.

(a) Story's Executors v. Holcombe, 4 McLean, C. C. 306.

license for the publication, the defendant, in an action at law, must prove it by a writing, signed by the plaintiff, in the presence of two or more credible witnesses.1

i Stat. U. S. 1831, c. 16, 88 6, 7, 9.

PAYMENT.

$ 516. Payment, how pleaded. The defence of payment may be made under the general issue, in assumpsit; but, in an action of debt on a specialty or a record, it must be specially pleaded. In either case, the burden of proof is on the defendant, who must prove the payment of money, or something accepted in its stead, made to the plaintiff, or to some person authorized in his behalf to receive it. The word “payment” is not a technical term; it has been imported into law proceedings from the exchange, and not from law treatises. When used in pleading, in respect to cash, it means immediate satisfaction; but when applied to the delivery of a bill or note, or other collateral thing, it does not necessarily mean payment in immediate satisfaction and discharge of the debt, but may be taken in its popular sense, as delivery only, to be a discharge when converted into money.

§ 517. Receipt only prima facie proof. If a receipt was given for the money, it is proper and expedient to produce it; but it is not necessary; parol evidence of the payment being admissible, notwithstanding the written receipt, and without accounting for its absence. And if produced, it is not conclusive against the plaintiff, but may be disproved and contradicted by parol evidence.3

§ 518. To whom made. Respecting the person to whom the payment was made, if it was made to an agent of the plaintiff, his authority may be shown in any of the modes already stated under that title.' (a) If it was made to an attorney-at-law, his employ

1 Manning v. Duke of Argyle, 6 M. & G. 40. If payment of the whole sum due is pleaded, but the proof is of the payment of part only, the defendant is entitled to the benefit of this evidence by way of reduction of damages. Lord v. Ferrand, 1 Dowl. & L. 630. And proof of the payment and acceptance of the whole debt will support a plea of payment of debt and damages where the latter are merely nominal. Beaumont v. Greathead, 3 Dowl. & L. 631.

2 Southwick v. Hayden, 7 Cowen, 334.

8 Ante, vol. i. $ 305 ; Skaife v. Jackson, 5 D. & R. 290 ; 3 B. & C. 421 ; Nicholson v. Frazier, 4 Harringt. 206.

4 Supra, tit. Agency, per tot.

(a) Strayhorn v. Webb, 2 Jones, Law Nicholls, 33 Id. 321 ; Bell v. Buckley, 34 (N. č.), 199 ; Simpson v. Eggington, 32 Id. 92. Eng. Law & Eq. 597; Underwood v.

ment by the creditor must be proved; in which case the payment is ordinarily good, upon the custom of the country, until his authority has been revoked. Payment of a judgment to the attorney of record who obtained it, though made more than a year after the judgment was recovered, has been held good ;? but if the payment was made to an agent employed by the attorney, or to the attorney's clerk, not authorized to receive it, it is otherwise. Even if land has been set off to the creditor by extent, in satisfaction of an execution pursuant to the statute in such cases, payment of the money to the creditor's attorney of record within the time allowed by law to redeem the land is a good payment. But proof of payment made to the attorney after his authority has been revoked will not discharge the liability of the party paying. (a) It is also a good payment, if made to a person sitting in the counting-room of the creditor, with account-books near him, and apparently entrusted with the conduct of the business ;6 but not if made to an apprentice, not in the usual course of business, but on a collateral transaction. Payment is also good, if made to one of several partners, trustees, or executors. (6) And if the plaintiff

1 Hudson v. Johnson, 1 Wash. 10.

9 Langdon v. Potter, 13 Mass. 219; Jackson v. Bartlett, 8 Johns, 361 ; Branch v. Burnley, 1 Call. 147 ; Lewis v. Gamage, 1 Pick. 347 ; Kellogg v. Gilbert, 10 Johns. 220; Powell v. Little, 1 W. Bl. 8.

8 Yates v. Freckleton, 2 Doug. 623; Perry v. Turner, 2 Tyrw. 128 ; 1 Dowl. P. C. 300; 8. C. 2 C. & J. 89.

4 Gray v. Wass, 1 Greenl. 257.
6 Parker v. Downing, 13 Mass. 465 ; Wurt v. Lee, 3 Yeates, 7.
6 Barrett v. Deere, i M. & Malk. 200.
7 Saunderson v. Bell, 2 C. & Mees. 304 ; 8. O. 4 Tyrw. 224.

8 Porter v. Taylor, 6 M. & S. 156; Stone v. Marsh, Ry. & M. 364; Can v. Reed, 3 Atk. 695.

(a) The death of the principal is a re- 169. When a bond has been assigned, vocation of the authority of the agent; yet without the knowledge of the obligor, a the payment of money to an agent after payment by him to the obligee is a good the death of the principal, the death being payment. Preston v. Grayson County, 30 unknown to both parties, is a good pay. Gratt. (Va.) 496. ment, and binds the estate of the princi- Payment of the principal of a mortgage pal. Cassiday v. McKenzie, 4 Watts & to one who assumes to be the mortgagee's Serg. 382. In Rodrigues v. East R. Sav. agent to receive such payment, but is not Inst., the Court of Appeals has decided such agent, is not a valid discharge of the that payment to the administrator of a debt. Cox v. Cutter, 28 N. J. Eq. 13. supposed dead, but in fact living, intes- Payment of an execution by one of several tate, is valid. But this will doubtless not defendants so far extinguishes it that it be accepted as law, without further exam. cannot be subsequently assigned to the ination. See Jochumsen v. Suffolk Sav. debtor paying it, and be levied by him on Bk., 3 Allen (Mass.), 87; A. L. Rev. the land of the other debtors. Adams v. July, 1876; Griffith v. Frazier, 8 Cranch, Drake, 11 Cush. (Mass.) 505.

And a 23; Allen v. Dundas, 3 T. R. 125. payment of a promissory note by one

(6) Bryant v. Smith, 10 Cush. (Mass.) promisor extinguishes the note. Pray v.

has drawn an order on the defendant, payable to a third person, upon which the defendant has made himself absolutely liable to the holder, this, as against the plaintiff, is a good payment of his claim to that amount, even though the plaintiff has subsequently countermanded it.' (a) The possession of the order, by the debtor on whom it was drawn, is prima facie evidence that he has paid it. (6)

§ 519. Mode of payment. As to the mode of payment, it may be by any lawful method agreed upon between the parties, and fully executed. (c) The meaning and intention of the parties, where it can be distinctly known, is to have effect, unless that intention

1 Hodgson v. Anderson, 3 B. & C. 842; Tatlock e. Harris, 3 T. R. 180.

Maine, 7 Cush. (Mass.) 253. See also if he had paid the price in money. Thus : Burr v. Smith, 21 Barb. (N. Y.) 262; Where one manufactured shingles for an. Thorne v. Smith, 2 Eng. Law & Eq. 303. other and agreed to accept payment" in

(a) But a conditional acceptance of shingles or their proceeds," and he is paid such an order does not operate as a pay. in shingles and negotiable paper, which ment, especially if it be afterwards given was the proceeds of part of the shingles, up to the debtor by such third party un- such paper is received in payment, and paid. Bassett v. Sanborn, 9 Cush. (Mass.) any loss arising from the worthlessness of 58. If a debtor, on the application of the the paper falls on him. Mason v. Warcreditor, by an order, verbal or written, ner, 43 Mich. 439. So where one agreed requests a third person to pay the debt, to take part-payment in orders on a third whether such third person is bound to do person named, and the orders proved so or not, and he does pay it, it is a pay- worthless, it was held that he could not ment of the debt, and a discharge of the require further payment from his debtor. claim of the creditor. Tuckerman v. Slee. Besley v. Dumas, 6 ml. App. 291. per, 9 Cush. (Mass.) 180.

When a written contract specifies & (6) See post, $8 527, 528. So when a particular kind of money, which is to be promissory note or bill of exchange has the medium of exchange in that contract, been negotiated, and afterwards comes into the Court will decide upon the constructhe possession of one of the parties liable tion of the terms as to payment, and in to pay it, such possession is prima facie what kind of money it should be made. evidence of payment by him. Baring v. Thus where a bond was executed in Clark, 19 Pick. (Mass.) 220 ; McGee v. North Carolina in February, 1865, payable Prouty, 9 Met. (Mass.) 547. But this in "current funds" it was held to be pay. rule of law does not apply to a possession able in Confederate money which was at by one of two joint promisors in an action that time current. Brickell v. Bell, 84 N. by him to recover of the other one-half the C. 82. So of one executed in 1863, pay. amount thereof. Heald v. Davis, 11 Cush. able in 1864 in West Virginia. Gilkeson (Mass.) 319. Two bills of sale shown to v. Smith, 15 W. Va. 44. have been intended, the one as a mortgage,

Where the payment was to be so many the other as a release of the mortgagor's “ dollars in gold,” and payments were interest to the mortgagee, were held to made in currency, it was held that the show payment of the debt secured by the value of the currency in gold should be mortgage. Seighman v. Marshall, 17 Md. credited to the debtor. Hittson v. Daven. 550.

port, 4 Col. 169. If the creditor accepts (c) When the parties to a contract agree payment in currency in such a case, as to regard some article or substance as payment in full, he waives the stipulation money in the payment of the contract as to payment, and will be held bound by price, this agreement will be binding upon his waiver. Lefferman v. Renshaw, 45 them, and a payment made in the article so Md. 119. Or if he accepts payment in desubstituted for money will discharge the preciated currency. Ritchie v. Sweet, 32 liability of the person who pays it just as Tex. 333; Clark v. Bernstein, 49 Ala. 576.

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