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possible to conceive a case in which he may be liable under the contract itself, knowing that he is named in it, accepting certain duties under it, and to receive a certain benefit from it, which I conclude to be the case in every case where an architect is employed to perform duties such as these arising out of a contract between parties. It is perfectly possible that such a state of things might arise, and might easily be conceived, in which he might become, by acting under the contract, so far a party to the contract as, by virtue of that contract, either to be liable under it, or to be liable for the neglect of certain duties by reason of the office which he has assumed, which would give a right of action to either party.

But, supposing the duty does arise, it appears to me that then the question in this case is at once raised-What is the amount of that duty? Now, it appears to me that he certainly does not undertake, by undertaking the office of architect, any duty amounting to more than this: that he will honestly perform his duty. Supposing that this case alleged that the defendant, having undertaken to act between the parties under that contract, had fraudulently and corruptly, or in collusion or conspiracy with either of the parties, dishonestly taken a course which he ought not to have taken, and so done damage to either of the parties, I must say that as at present advised I entertain no doubt whatever that an action would have lain against him. There are plenty of dicta to that effect, all of which carry that before them, and I do not at present feel that one ought to have any hesitation about the proposition that in such a case an action would lie. But the case is, what is the duty that he here undertakes? and that depends upon what is the employment of an architect who acts under a contract of this kind.

Now, I do not intend or presume to hold any more than my lord has done, that he is to all intents and purposes an arbitrator, but I do think that his duties are very analogous indeed to those of an arbitrator, and that they are quite as much so in this case as was the case of the defendant either in the case of Pappa v. Rose, or in the case of The Tharsis Sulphur Mining Company v. Loftus, to which I will allude again presently. Now, the argument of Mr. Cave is that upon this particular contract he is not in the nature of an arbitrator at all. He is not a person who is appointed by the parties to decide questions which will require the exercise of discretion, of skill, and of judgment, in the high sense of the words at all, but that he is rather in the nature of a mere appraiser or valuer-a person who has to look at certain work, to measure it, and to cast up figures, and so to come to certain results, which is more in the nature of mere clerks' work than judicial work, or work which can be at all looked upon as resembling that of an arbitrator or of a person who has to work with judgment, requiring skill and discretion in the high sense of the words. It appears to me that so to hold would really be to ignore altogether and to leave out of sight the experience of almost every gentleman at the bar and every member of the bench who has ever had any

thing to do with arbitration upon building contracts; and inasmuch as a very great number of us have had very considerable experience in that particular kind of business one ought, in deciding a case of this kind, to take into consideration the experience which we have of the subject, and one knows in point of fact, and in point of practice,that it happens over and over again that there will be very skilled architects called by the dozen, I may almost say, one on one side and one on the other, very often honestly differing to the amount of hundreds of pounds in the result, as to what is the proper mode of measuring up certain work, according to certain contracts, and consistent or inconsistent with bills of quantities and all such other documents as are alluded to in the present case. It appears to me that that is enough, without going into each detail of this case, to show that an architect is not a person who can be dealt with as a mere caster up of figures, who, if he makes a mistake in the result upon a matter of measurement, is to be looked upon as a person who has been guilty of negligence, by wrongfully casting up figures or anything of that sort. It is a matter of judgment; it is a matter of practice; it is a matter of very considerable nicety and discretion; and it appears to me that it would be quite ignoring the facts to hold him to be anything short of a person who exercises very important functions of a quasi-judicial character between the parties when a dispute arises upon matters of this kind. If that be so, it appears to me that the case of Pappa v. Rose, and the case of The Tharsis Sulphur Mining Company v. Loftus, apply to this case. The only distinction that has been spoken to by Mr. Cave is that in the latter of these cases, at all events, an actual dispute had arisen in the particular case between the parties, and that therefore he was an arbitrator, whereas he may not be in the nature of an arbitrator in a case where no dispute had, in fact, arisen. But it appears to me in such eases as this, that the architect is, from the beginning to the end of the contract, a person who is in the position of an arbitrator to this extent-he is always to have his eye on the progress of the works; he is to give certificates from time to time, all of which play a part in enabling him to decide, in the end, rightly or wrongly, with reference to his final certificate, and he can not at any time, I think, withdraw from the position which he holds from the first, unless he gives the matter up altogether, as a person who from the first exercises his judgment in the matter wherein the parties themselves can exercise no judgment at all. That being so, it appears to me that from the first the parties have trusted to him, and the only contract and the only duties which can be charged against him, are, that he is to exercise all his honesty in the matter, and that he is to deal fairly and impartially between the parties. If he violates that, and injures either of the parties, I should certainly, as at present advised, hold that he would be liable to an action; if he honestly does his duty, then it appears to me he has performed his part of the bargain, or his duty, if it be a duty arising from his accept

ance of that duty, and the parties must abide by logs, as directed by an ordinance. Held, that the comit.

Now, this 17th paragraph, however, of the statement of claim does contain a word which has been alleged to mean more than a mere assertion that he has neglected his duty by negligence in the matter of admeasurement, because it contains the words "knowingly or negligently." Now, I think it would be a very bad precedent indeed to hold that, by cramming into a statement of claim such a word as that, the parties would have a right to say, we mean something which the law generally designates by very different words, namely, such a thing as is done fraudulently, and maliciously, and corruptly, and without due impartiality between the parties. It appears to me that the word is perfectly consistent with a mere knowing the figures that he is putting down, and that it ought not at all to be stretched into meaning that which it would have been so easy to say if that were the allegation, that he had acted fraudulently, maliciously or corruptly.

There only remains to mention the 18th paragraph. There it is said that a different question arises, because after the certificate was made a question arose as to whether that certificate was correct, and then, at all events, he became a person whose duty it was to decide questions between the parties, and that he departed from impartiality in deciding that question without a hearing by deciding it in favor of the building owner without allowing the objection of the plaintiff to be heard, or without reconsidering his certificate; and I must say, in answer to that contention, it appears to me that he would have done wrong indeed, if he had, upon the mere request of the plaintiff, without any dispute having been raised between the parties which was referred to him by both of them, and which he would have had to decide according to the terms of the contract, if he had then and there, upon a mere complaint of the plaintiff, re-opened the matter and determined to reconsider his certificate. No question had arisen, no dispute had arisen, which fell within the words of the contract, that his decision should be final where matters of dispute arose in the settlement of the contract. The only dispute that arose was between him and the builder and all that appears is that the builder was dissatisfied with his certificate, and I apprehend that he had no right, because the builder was dissatisfied with his certificate, to re-open the matter at all, and therefore that complaint is even less well founded than the other.

Upon the whole I am of opinion there must be judgment for the defendant upon the demurrer. Judgment for the defendant.

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pany was not bound to do more than make the place reasonably safe, and in determining whether the company complied with this obligation, evidence should have been admitted to prove the nature and character of the company's business; the company was not bound to put cap logs on the wharves if they were an obstruction to its business. 2. The plaintiff had a right to show by persons acquainted with the place that in their opinion it was dangerous. 3. The council of the city, by an ordinance, provided for putting cap logs upon wharves, and prescribed a penalty for its infraction: Held, that no civil liability at the suit of a person injured could arise from non-observance of this ordinance.

PATENT LAW-DENTAL VULCANITE CELLULOID. -Goodyear Dental Vulcanite Co. v. Brightwell. Supreme Court of the District of Columbia, 7 Wash. L. R. 21 Opinion by HAGNER, J.-1. The decision of the Supreme Court in Smith v. Goodyear Dental Vulcanite Co.. 3 Otto, 486, holding that the letters patent issued to John A. Cummings, June 7, 1864, and reissued in March, 1865, for an improvement in artificial gums and palates, are valid. must be regarded by this court as a final determination, and making the said letters res adjudicata. 2. The use of celluloid in the fitting of artificial teeth is not an infringement on that patent.

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PARTNERSHIP LIEN OF REPRESENTATIVES OF DECEASED PARTNER.-Hooley v. Gieve. New York Common Pleas. 20 Alb. L. J. 12. Opinion by VAN BRUNT, J.-1. When a surviving partner continues the business of the firm and uses the assets of the old firm in such continuance, disposing of the stock and assets and investing the proceeds in new stock, so that the identity of the old stock is gone, and mingles such new stock with the property of his own, so that it can not be separated, the representatives of the deceased partner have a lien upon the whole of the new stock to the exclusion of the individual creditors of the surviving partner. 2. A and B were partners. A dying, left a will wherein B was appointed trustee of his estate, with directions to withdraw A's interest in the partnership and invest it and pay over the proceeds as directed. B, instead of withdrawing A's interest, continued the firm business for years with A's money, and became insolvent. Held, that the cestui que trust under A's will had a lien on all of B's assets to the exclusion of his creditors.


CRIMINAL LAW-POWER OF JURY TION OF "DAY."-Kane v. Cone. Supreme Court of Pennsylvania, 9 Pitts. L. J. 189. Opinion by SHARSWOOD, C. J.-1. In criminal cases, the jury are judges of the law as well as of the facts; this power is guaranteed by the bill of rights, and is not superseded by the provisions of art. 5, sec. 24, of the Constitution of 1873, in reference to appeals to the Supreme Ccourt in criminal cases. 2. The word "day," as used in the eleventh section of the act of April 12. 1875, viz.: "That it shall not be lawful for any person with or without license, to sell to any person any intoxicating drink on any day on which elections are now, or hereafter may be required to be held," etc., includes the whole twenty-four hours of the day upon which an election is held.

VENDEE'S LIABILITY FOR INJURY TO VENDOR BY VENDEE'S USE OF LAND SOLD-INJURY TO VEGTATION BY SMOKE AND HEAT FROM COKE OVENS. -Brown v. Torrence. Supreme Court of Pennsylva nia, 9 Pitts. L. J. 189. Opinion PER CURIAM.-1. Without contract or some relation of privity regarding the use to be made of land sold, the vendee stands to his vendor just as he does to others, and the maxim applies sic utere tuo ut alienum non lædas. 2. A sold to B coal underlying certain lands, and B having begun

the manufacture of coke therefrom, A sold a portion of the surface to C. C sold a part of his surface to D, and a firm in which D and B were partners afterwards built coke ovens thereupon and began to make coke. In an action by C against B to recover damages for injuries caused by mining the coal and manufacturing coke: Held (affirming the judgment of the court below), that C, standing in no relation of contract or privity to justify these injuries, was entitled to recover. A person whose land has been injured by the negligent mining of coal beneath it, or whose crops have been injured by heat and smoke from the coke ovens, is entitled to recover such damages as the jury finds from the evidence he has sustained.

NEGLIGENCE-DUTY OF MUNICIPALITY IN CASE OF HIGHWAYS GOVERNED BY SURROUNDINGS FRIGHTENED HORSE-PROXIMATE CAUSE.-Borough of Pittston v. Hart. Supreme Court of Pennsylvania, 9 Pitts. L. J. 182. Opinion by GORDON, J.-1. It is the duty of a municipality, through her proper officers, to keep the approaches to dangerous places in a public highway so guarded as to protect travelers. A highway must be kept in such order that even "skittish" animals may be employed without danger. 2. It is a question of fact for the jury whether dangerous places in a public highway are properly guarded, and in determining this the character of the highway and its surroundings must be taken into consideration. Greater care is demanded in towns than in sparsely settled districts. 3. It is no defense in an action for damages that the accident occurred through the fright of a horse in a dangerous place in a highway. It is the duty of those having charge of the public highways to construct them with reference to the natural timidity of the animal. 4. Whether the negligence of the officers of the municipality was the proximate cause of the accident complained of, is a question properly submitted to the jury.

CONTRACT WAGERS PURCHASE AND SALE OF STOCKS ON MARGINS--DAMAGES.-North v. Phillips. Supreme Court of Pennsylvania, 7 W. N. 151. Opinion by GORDON, J.-1. In cases of failure to deliver stock, where the parties stand in equali jure, and there is no fraud shown, the measure of damages is the same as for any other marketable commodity, i. e., the value of the stock on the day when it should have been delivered, with simple interest. The rule of damages, as stated in Bank v. Reese, 2 Casey, 143, applies only to cases of trusts, and cases where justice could not be reached by the ordinary measure of damages. Huntingdon & Broad Top Mountain R. Co. v. English, 5 W. N. 354, followed. 2. Transactions in stocks by way of margins, settlement of differences, and payment of the gain or loss, without any intention to deliver the stocks, are mere wagers. 3. In an action to recover damages for the sale of certain stock by the defendants, who were the plaintiff's brokers, the plaintiff testified on cross-examination: "I directed the defendants to purchase this stock as an investment; the purchase-money was $18,000; I only gave $500; I was not asked for more" (and so on of other transactions); "I bought to take money on the advance of the stock; I never paid the balance of the purchase-money, and never had the stock transferred to me. Held (reversing the judgment of the court below), that these were mere gambling devices, such as the courts will not help the parties to enforce. Kirkpatrick v. Bonsall, 22 Sm. 155 distinguished.

PRINCIPAL AND SURETY - DELAY IN PRESENTING CHECK.-Fegley v. McDonald. Supreme Court of Pennsylvania, 6 W. J. 133. Opinion by MERCUR, J.— 1. Where the property of the principal debtor sufficient for the payment of the debt is so within the control of the creditor that, by the exercise of reasonable diligence he may realize the sum due him, and he

voluntarily and by supine negligence relinquishes it, the surety is discharged. 2. A and B were joint obligors in a bond conditioned for the faithful performance by A of his duties as treasurer of a masonic lodge. A was directed by the lodge to pay from moneys in his hands $920 due the grand lodge for rent and dues. He gave the grand lodge his personal check, dated May 27, for this amount, having in bank on the day it should have been presented a sum sufficient to meet it; but the officers of the grand lodge did not present the check until June 4, and the bank having on that day appropri⚫ ated the money for a debt due itself, there was no funds in the bank to A's credit. A never accounted to the lodge for the $920, and the lodge paid subsequently, under threat of expulsion, from other funds, the sum due the grand lodge. Held, that B as surety was discharged from liability on his bond by the delay. in the presentation of the check. A check is generally designed for immediate payment, and not for general circulation. It is the duty of the holder to present it for payment as soon as he reasonable may, and if he does not he keeps it at his own risk.


VENDOR AND VENDEE STOPPAGE IN TRANSITU -LIABILITY OF MASTER TO SUB-VENDEE.-A shipper of goods has no right to stop them, after a sale by his vendee to a third party; and the master's refusal to deliver to such subsequent vendee, though under the vendor's orders, is at the master's peril, and if loss occur (e. g. by reason of a falling market), he is responsible to such vendee.-Schmidt v. The Pennsylvania. United States District Court, Eastern District of Pennsylvania. Opinion by CADWALADER, J. 7 W. N. 98.

ADMIRALTY-SALE OF CARGO BY MASTER.-1. To justify the sale of a cargo by the master it must appear: (1), that the sale was necessary; (2), that it was made in good faith; (3), that the master was unable to communicate with his owners before the necessity for action became imperative. Whether a case could arise upon the lakes or rivers, where such a sale could be justified, quære. If so, it must be in some rare and exceptional instance, where an immediate sale is the only alternative of a total loss by jettison, and timely communication with the owner is impossible. 2. A schooner bound from Chicago to Buffalo, and laden with a cargo of wheat, was stranded upon an island near to the entrance to the Straits of Mackinaw. To get her off it was necessary to relieve her of a portion of her cargo. Without communicating with the owners, or making any efforts to tranship it and store it on the shore, the master sold portions of it to different parties, at one-fifth its value in Mackinaw, and onetenth of what it was worth at the port of shipment.. Held, that the sale could not be sustained, and that the buyers were only entitled to quantum meruit for their services and expenses in saving it. Held, further, that the master having embezzled the money received for the wheat, the purchasers were not entitled to be reimbursed the amount.-The Bridgewater. United States District Court, Eastern District of Michigan. Opinion by BROWN, J. 4 Cin. L. B. 448.

ORAL CONTRACT-CONSTRUCTION OF QUESTIONS OF LAW AND FACT.-1. If there be any conflict as to the words used in an oral contract, or if the words themselves be ambiguous, the question of intent should be left to the jury. But if the words are clear and explicit, and the only difficulty is in the proper legal inference to be drawn from them, the rule is the same in oral as in written contracts, and it belongs to the court

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to give them their proper construction, even though the contract be incomplete in an essential particular. 2. Plaintiff and defendant, being adverse parties to a proceeding before the commissioner of patents in Washington, agreed that each should furnish to the other six printed copies of their testimony. Plaintiff had ordered 100 copies for its own use. Defendant thereupon asked plaintiff to order thirty extra copies for him. Held, that plaintiff could only recover under that state of facts the extra cost of the thirty copies,and was not entitled to the proportionate cost which these bore to the whole edition of 130 copies. Held, also, that these facts did not present a question for the jury and that it belonged to the court to determine the legal inference therefrom.-Detroit Stove Works v. Perry. United States Circuit Court, Eastern District of Michigan. Opinion by BROWN, J. 20 Alb. L. J. 10.



April Term, 1879.

SALES ON THE CORN EXCHANGE-GAMBLING CONTRACTS-PRODUCE BROKERS- AGENCY.-1. The le-. gality of a commercial transaction is a question of fact depending on the intent of the parties. 2. A contract good on its face is binding if either party meant it to be lawful or supposed that the other meant it to be so, and if it can be lawfully carried out without conflicting with any intent common to both when it was entered into. 3. If one of the parties to a bargain of sale contemplates an actual sale, the transaction may be perfectly valid irrespective of any illegal purpose entertained by the other. 4. A contract can not be a gambling contract, unless both parties concur in the illegal intent. 5. Where a commercial "operation" is a purely gambling transaction, and understood to be so by both parties, neither can sue the other on it. Gregory v. Wendell, 8 Cent. L. J. 115; Lyon v. Culbertson, 5 Id. 401. 6. Where an actual purchase is contemplated and the parties act in good faith, the fact that speculation is the object is of no legal import


7. It is lawful to buy merchandise for future delivery, even if at the time of purchase the seller has none to deliver. Cossand v. Hinman. 1 Bosw. 207; Ashton v. Dakin, 4 H. & N. 867; Brua's Appeal, 55 Penn. St. 296; Pixley v. Boynton, 79 Ill. 351. 8. Sales on the corn exchange, even for immediate delivery, do not necessarily contemplate the delivery of a specific lot, but only of the amount, kind and quality bargained for. Nourse v. Prime, 4 Johns. Ch. 490; 7 Johns. Ch. 90; Horton v. Morgan, 6 Duer, 56; 19 N. Y. 190. But one who sells for immediate delivery must be ready to deliver on call, and if he disqualifies himself from so doing by selling to another, the original purchaser can claim damages for conversion, or repudiate the sale and demand the corn. Taussig v. Hart, 58 N. Y. 425. 9. The court recognizes the commercial usage of buying and selling through brokers without looking beyond them to the original parties, whereby the brokers stand in the place of principals. But a purchaser may elect to have the contract turned over to him instead of relying upon his broker. 10. A broker who makes a purchase with the understanding, and with the concurrence of the seller, that the contract is to be at once turned over to his principal, ceases his connection with it on payment of his commission. 11. One can not be forced to accept another contracting party in place of the one with whom he contract.ed. 12. Brokers, who are paid a commission to buy

goods, are agents for those for whom they buy. 13. A produce dealer instructed a broker to bargain for corn deliverable some months later, and agreed to pay the broker a commission and receive and pay for the corn at the time of delivery. The broker had a like agreement to receive the corn from certain other brokers and they from the sellers. The first broker settled with his correspondents. Held, that on tendering to the produce dealer elevator receipts for the corn, he had discharged his obligations, and if the dealer refused to receive the corn or the receipts, he could sell it to indemnify himself and recover for any deficiency. 14. In delivering grain to a purchaser on 'change, it is sufficient to tender elevator receipts if it appears that the bearer could obtain the grain upon them. 15. A broker commissioned to buy corn did so, but finding the price rapidly going down, sold it for his own protection, and on the refusal of his principal to ratify the sale, replaced it and tendered the elevator receipts. The principal refused to receive them, and the broker sold the corn. Both sales were made at a loss, and the broker sued his principal for damages. Held, that in estimating damages, the first sale was immaterial. 16. A produce broker sued a dealer who had commissioned him to buy corn for future deliv. ery, for refusing to receive the corn when tendered, and testified that while the expectation had been that the dealer would order a sale before the time for delivery, the broker had nevertheless expected to obtain title to the corn for delivery at the maturity of the contracts, if they were not sooner disposed of. Held, that in the absence of any evidence of previous gambling transactions between the parties, it was not proper on cross-examination to ask the broker if on any such dealings he had ever received any corn. 17. Where an understanding was entered into at Detroit for the purchase of corn at Chicago, which was shown to have been immediately carried out at Chicago, it was held not to be necessary to put in evidence the telegrams by which the orders to purchase were communicated. 18. A purchase by a broker through his correspondent is sufficiently shown in an action by the broker against his principal by showing that the broker had reported the purchase to his principal and received his approval. 19. One must be understood to warrant the genuineness of a transaction between himself and another, on which he leads a third person to rely. Opinion by COOLEY, J.-Gregory v. Wendell.


April Term, 1879.

[Filed June 2, 1879 ]

DAMAGES ON APPEAL ONLY AWARDED WHEN APPEAL IS WITHOUT MERIT.-Ten per cent. damages should be awarded only in those cases where the record is examined and the appeal found to be without merit. The judgment of the St. Louis Court of Appeals in this Case is therefore reversed and cause remanded to that court, with directions to enter a judgment of affirmance without damages. Opinion PER CURIAM.-State v. Ryan.

MORTGAGE OF PERSONALTY NOT FRAUDULENT WHEN DULY ACKNOWLEDGED AND MORTGAGOR REMAINS IN POSSESSION WITHOUT POWER OF SALE. -Action to set aside mortgage on furniture and fixtures, and also on a general stock of drugs and medicines, executed by defendant Byem to his co-defend. ant. Mortgage was duly executed, acknowledged and recorded, and was assailed by plaintiff as fraudulent and void as to creditors. On its face it showed that


mortgagor was to remain in possession and control of the store as before its execution, till maturity of debt for which mortgage was given to secure. The mortgagor continued in business in said store selling the drugs and medicines mortgaged as usual trial, court refused an instruction asked by defendant to the effect that though the jury might find that after giving a mortgage the mortgagor remained in possession of the store, and continued his usual business of selling the drugs therein, yet this fact would not render mortgage void as to furniture and fixtures. Held, under the authority of the cases in this State, the instruction should have been given. State v. Parker, 31 Mo. 445; Voorhis v. Langedorf, 31 Mo. 451. Reversed and remanded. Opinion by NORTON, J.-Donnell v. Byem.


June Term, 1879.

JURISDICTION BANKRUPTCY.-The State courts have no power to set aside a sale made by an assignee in bankruptcy for fraud or other cause, either before or after the discharge of the assignee. The acts of the assignee were those of an officer of the bankrupt court, and the fraud, if any, was in a judicial proceeding and in a matter of which the Federal courts have exclusive jurisdiction. Opinion by BECK, C. J.—Akins v. Stradley.

USURY-TAKING OF BONUS BY AGENT-HUSBAND AND WIFE.-The taking of a bonus above the legal rate of interest by an agent for the loaning of money, without the knowledge or authority of the principal, will not render the note taken, and bearing only a legal rate of interest, usurious in the hands of the principal. Condit v. Baldwin, 21 N. Y. 219; Rogers v. Buckingham, 33 Conn. 81; Tyler on Usury, 156; Gokey v. Knapp, 44 Iowa, 32; Wyllis v. Ault, 46 Id. 46. The authority or knowledge of the principal will not be presumed from the fact that the agent was her husband in the face of the positive testimony of both parties to the contrary. Opinion by ROTHROck, J.— Bing ham v. Myers. PRACTICE ACTIONS UNDER CIVIL DAMAGE LAW-TRIAL.-Under the civil damage law of Iowa, which provides for making judgments obtained for damages caused by the sale of intoxicating liquors, liens upon the premises upon which the liquor was sold, the seller and the owner of the premises, when different persons, may be joined in an action which may be tried as against the seller as a law action, and after judgment the cause may be transferred to the equity docket for trial of the question of a lien against the property. Opinion by ADAMS, J. SEEVERS and DAY, J.J., dissenting.-Loan v. Hinney.


CHATTEL MORTGAGE-LANDLORD'S LIEN-PRIORITY.-As between the holder of a chattel mortgage, duly recorded, and a landlord upon whose premises the mortgaged property is used subsequent to the execution of the mortgage, and with the knowledge of the holder, the mortgagee is entitled to the prior lien. Opinion by ADAMS, J.-Jarchow v. Pickens.

REAL ESTATE-POSSESSION UNDER UNRECORDED DEED-WHAT IS SUFFICIENT.--The plaintiff claimed title to a certain tract of land under an unrecorded deed, and defendant through a subsequent recorded conveyance from the same party. The land was unimproved, and consisted partly of timber and the remainder the greater portion of prairie. It was shown that plaintiff had cut wood upon the land since his purchase, and had driven off trespassers and exercis

ed such other acts of possession as were consistent with the character and condition of the land. Held, that such possession was sufficient to constitute notice of his title, and that defendant's deed, although taken in good faith and for a valuable consideration, was void. Opinion by BECK, C. J.-Nolan v. Grant.



[Filed June 1879.]

MONEY HAD AND RECEIVED PAYMENT UNDER MISTAKE OF LAW.-An action by the legatees of a will for money had and received will not lie against the administrator of an intestate estate to recover money erroneously paid to the intestate by the executor of said will, and which the intestate received under the belief that it was hers by virtue of said will. Otherwise, if any such money had been paid to said intestate to be paid by her to the plaintiff as being due from the executor, (Mellan v. Whipple, 1 Gray, 317;) or, if said intestate, in consideration of the payment to her, ha i promised the plaintiffs to pay the legacies for which the executor was liable to them, and they had thereupon released the executor and accepted her promise instead of his liability. Opinion by SOULE, J.-Moore v. Moore.

CRIMINAL LAW - EMBEZZLEMENT-INDICTMENT. -1. In order to a conviction for embezzlement, it is necessary to prove that the possession of the property as distinguished from its mere custody was in the defendant. If the actual or constructive possession was in the owner, than the wrongful conversion would be larceny and not embezzlement. The two offenses are distinct and must be charged in such terms as will indicate the precise offense intended to be charged. Com. v. King, 9 Cush. 284; Com. v. O'Malley, 97 Mass. 584; Com. v. Barry, 99 Mass. 428. 2. An indictment for embezzlement which alleges that a bank book was delivered to the defendant by the owner in trust and confidence, and with the direction that the defendant should thereby receive only the custody of it and should hold it until demanded by the owner and should then deliver it up and return it to him, sufficiently states that the actual and legal possession was parted with by the owner and vested in the defendant. Opinion by COLT, J.-Com. v. Doherty.

MECHANIC'S LIEN.-The petitioner for the enforcement of a mechanic's lien, did certain work in building a cellar wall in the fall of the year 1875, under a contract with C, by which contract he warranted that the wall should stand. The wall was completed in November, 1875. C caused the wall to be built pursuant to a contract with the defendant, which contemplated the erection of a building by C on the premises before January 1, 1876, and as a condition precedent to the conveyance of the premises to C. The time of performance was afterwards extended to April 1, 1876. During the winter the walls were damaged by frost, which damage was remedied in February and April, 1876; the last work done in restoring it to the condition called for in the contract was on April 17, 1876, and the petitioner filed his claim in the townclerk's office May 15, 1876. The statute provides that the claim shall be filed within thirty days after the petitioner ceases to labor or furnish labor or materials for the structure. Held, that the implied consent of the defendant to the employment of the petitioner, growing out of the contract with C, had ceased to exist April 1, 1876, and that the work done by the petitioner in April was in the nature of repairs, for the

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