Moore v. Rosser, 76 Ga. 329; Hiett v. Cherokee R. R., 77 Id. 574; People v. Hotz, 73 Cal. 241; and see Lawrence v. Burnham, 4 Nev. 361; 97 Am. Dec. 540.

PURCHASER AT EXECUTION SALE CANNOT, IN EQUITY, BE EXCUSED FROM CONSUMMATING HIS PURCHASE, because, never having attended such a sale before, and not hearing the terms of the sale, he supposed himself to be baying the entire estate in question, and not the "right, title, and interest " of the judgment debtor in it: Upham v. Hamill, 11 R. I. 565; 23 Am. Rep. 525, and note 527.

JOHNSON V. OSWALD.

188 MINNESOTA, 550.]

PLEADING-ACTION FOR CONVERSION. GENERAL RULE IS, THAT ANYTHING WHICH TENDS TO CONTROVERT directly the allegations in the complaint may be shown under the general denial. And where the complaint in an action for the conversion of personal property simply alleges title in the plaintiff, without stating how he acquired it, the defendant may show, under a general denial, that the sale under which the plaintiff claims title was void, so as to pass no title, by reason of fraud, and his rescission of the sale and retaking of the property.

Thomas Canty, for the appellants.

Henry J. Gjertsen, for the respondent.

GILFILLAN, C. J. This action was for conversion of personal property. The complaint alleges, generally, without referring in any way to the means by which he acquired title, that the chattel was the personal property of the plaintiff, and that he was in possession of it, and that the defendants caused it to be wrongfully taken from him. The answer is a general denial. The defendants offered to prove, in substance, that they, owning the chattel, were induced to sell it to one Larson, from whom plaintiff claims to derive his title, by his (Larson's) false and fraudulent representations, and that, upon discovering the fraud, they rescinded the sale and retook the chattel. There was already in the case evidence sufficient to go to the jury that plaintiff was not a bona fide purchaser of Larson's title. The court below excluded the evidence so offered.

The question raised is, Can a defendant in an action for conversion, where the complaint contains only the simple allegation of title in plaintiff, prove, under a general denial, that the sale under which plaintiff claims title was void, so as to pass no title, by reason of fraud?

The general rule is, that "anything that tends to controvert directly the allegations in the complaint may be shown under

the general denial": Bond v. Corbett, 2 Minn. 209 (248). Upon this rule it is held that, in an action in replevin or for conversion, a denial of the simple allegation of plaintiff's title will admit proof of title in defendant or a third person: Caldwell v. Bruggerman, 4 Id. 190 (270); Jones v. Rahilly, 16 Id. 283 (320); McClelland v. Nichols, 24 Id. 176; Robinson v. Frost, 14 Barb. 536; Davis v. Hoppock, 6 Duer, 254; Emerson v. Thompson, 59 Wis. 619; for such proof directly controverts the allegation of plaintiff's title in the complaint. In the case of a sheriff, defendant, who seeks to justify his taking under process, on the claim that the sale to plaintiff was in fraud of the creditors of the person against whom the process runs, it has been held that a general denial of plaintiff's title is not sufficient: Frisbee v. Langworthy, 11 Id. 375. The rule in this state, in the case of an officer justifying under process, is stated in Kenney v. Goergen, 36 Id. 190, to be, that, under the denial of plaintiff's title, and the allegation of title in the person against whom the process runs, he may, without specially pleading it, show fraud as to creditors in the sale by such person to plaintiff. There is some reason for requiring from the officer, in such a case, somewhat fuller pleading than from the defendant in a case like this. A sale in fraud of creditors is valid and effectual, and passes the title as between the parties. Only creditors who are defrauded by it can avoid it, and there is some reason for requiring one who seeks to avoid it to put himself in the place of a defrauded creditor. But in a case like this, if the facts be as defendants sought to prove them, the sale was void, and Larson got no title. As between the parties to the sale and to the action, it remained in defendants, unless plaintiff is a bona fide purchaser. A general denial puts in issue only the facts alleged in the complaint. Thus, if this complaint, instead of alleging plaintiff's title, had alleged the facts through which it was derived,-as, had it alleged the sale by defendants to Larson, and title derived by plaintiff from him, -a general denial would enable defendants only to disprove those facts, but not to prove other facts to vary their legal effect. In such case, the fraud could not have been proved without pleading it. The case would then have been analogous to Finley v. Quirk, 9 Minn. 179 (194), 86 Am. Dec. 93, in which a denial of the sale of a horse was held to raise an issue only on the sale in point of fact, and did not justify evidence that it was made on Sunday, so as to be illegal. Under

the denial in that case, the defendant might have followed any line of evidence that would have disproved the sale in point of fact. So, under a denial of the pleadable fact of title, the defendant may introduce any evidence that will disprove such alleged fact. In many cases it might put a defendant to great disadvantage if, when the complaint alleges only the fact of title, without disclosing by what means plaintiff claims to have acquired it, defendant must anticipate plaintiff's evidence as to the source of title, and plead expressly facts to do away with the effect of it.

It was error to exclude the evidence offered, and there must be a new trial.

Order reversed.

PLEADING EVIDENCE ADMISSIBLE UNDER GENERAL DENTAL: Indianap elis R. R. Co. v. Rutherford, 29 Ind. 82; 92 Am. Dec. 336; Pine v. Merchants Mut. Ins. Co., 19 La. Ann. 214; 92 Am. Dec. 529.

CASES

IN THE

COURT OF APPEALS

ОР

NEW YORK.

INDICTMENT

PEOPLE V. BLIVEN.

[112 NEW YORK, 79.]

-PRINCIPALS IN CRIME. -PERSON NOT PRESENT AT THE COMMISSION OF A CRIME, BUT WHO COUNSELED, INDUCED, AND PROCURED it to be committed, may, under the provisions of section 294 of the Penal Code of New York, be convicted under an indictment charging him with the commission of such crime.

ACCESSARIES BEFORE THE FACT, IN CASES OF TREASON AND OF MISDEMEANOR, ARE PRINCIPALS, by the rules of the common law. ACCESSARIES BEFORE THE FACT IN THE COMMISSION OF A FELONY MAY BE INDICTED AND CONVICTED AS PRINCIPALS, under section 29 of the Penal Code of New York. That section reads as follows: "A person concerned in the commission of a crime, whether he directly commits the act constituting the offense or aids and abets in its commission, and whether present or absent, and a person who directly or indirectly counsels, commands, induces, or procures another to commit a crime, is a principal."

INDICTMENT and conviction under section 294 of the Penal Code of New York, defining the crime of abortion.

Abraham Suydam, for the appellant.

John F. Clark, for the respondent.

PECKHAM, J. Section 294 of the Penal Code provides as follows: "Abortion defined. A person who, with intent thereby to procure the miscarriage of a woman, unless the same is necessary to preserve the life of the woman, or of the child with which she is pregnant, either: 1. Prescribes, supplies, or administers to a woman, whether pregnant or not, or advises or causes a woman to take any medicine, drug, or substance;

or 2. Uses or causes to be used any instruments or other means, -is guilty of abortion, and is punishable by imprisonment in a state prison for not more than four years, or in a county jail for not more than one year."

Under that section the defendant was indicted by the grand jury of the county of Kings for having feloniously, etc., used a certain instrument upon the prosecutrix with intent thereby feloniously and unlawfully to procure her miscarriage, the same not being then and there necessary to preserve her life, or that of the child with which she was pregnant.

The proof in the case showed that at the time of the commission of the act the defendant was absent, but that he had counseled, induced, and procured the crime to be committed. The question was properly raised on the trial, and the claim was made, on the part of the counsel for the defendant, that he could not be convicted of the crime alleged in the indictment, because the proof showed that he was absent at the time of its alleged commission, and hence there was not within the meaning of the code a sufficient allegation in the indictment of the facts constituting the crime as proved. The objections were overruled, and the defendant was convicted and sentenced. Upon appeal, the conviction was affirmed by the general term of the supreme court, and from the judgment of affirmance the defendant appealed here.

The question is now fairly presented, whether upon an indictment which alleges the doing of an act by the defendant constituting the crime, he can be convicted upon proof that, though absent at the time of the actual commission of the crime, he nevertheless aided in, advised, and procured its commission.

Before the adoption of the code, and in cases of felony, there would have been no doubt that a conviction could not be had upon an indictment such as this, where the proof was the same as in this case. It is claimed, however, that section 29 of the Penal Code works a change in the law upon this subject. That section is as follows: "A person concerned in the commission of a crime, whether he directly commits the act constituting the offense, or aids and abets in its commission, and whether present or absent, and a person who directly or indirectly counsels, commands, induces, or procures another to commit a crime, is a principal."

It is now argued that by reason of this section the rule of law has been changed, and that upon an indictment alleging