the District of Columbia, plff. in that general rule, it seems clear that error, v. William H. Ward (October, the proposition of the defendant 1879). In the absence of fraud and collusion, an attor ney employed to search the title to real estate is only liable to the person who employs him. Proof of usage will not make a contract where must be sustained. Sh. & Red. on Neg., § 215; 17 C. B., N. S., 194; see also 4 Macq., H. of L. Cas., 167, 209; 37 N. J. Law, 5; 10 M. & W., 109; 81 Pa. St., 256. Where the wrongful act is not -the parties have made none, and it can only immediately dangerous to the lives be admitted to interpret the meaning of the of others, the negligent party, unless language employed. he be a public agent in the performError to the Supreme Court of ance of some duty, is in general the District of Columbia. Action to recover damages for alleged negligence of defendant in examining and reporting upon the title to certain real estate. liable only to the party with whom he contracted, and on the ground that negligence is a breach of the contract. L. R., 3 C. P., 496. Satisfactory proof is exhibited that The complaint alleged that plain- the defendant was duly employed tiff's employed defendant to examine by the pretended owner of the lot to the title to certain real estate upon examine his title to the same, and it which they were about to make a is conceded that he did so, or that loan; that he reported that the his son made the search for him, title of the borrower was good and unencumbered, whereas the borrower was insolvent and had no title, as appeared by a prior recorded conveyance. and that he made and signed the certificates in question, and that he was paid for his services by his employer, nor is it questioned that the title was defective as alleged. ConIt appeared by the evidence that cede that, and it follows, as an imdefendant was employed by the plication of law, that the defendant borrower; that he made the report assumed to possess the requisite to his employer; that he never knowledge and experience to percame in contact with plaintiffs, or the form the stipulated service, and that brokers employed to negotiate the he contracted with his employer loan, and had no knowledge of what that he would use reasonable care use was to be made of his report. and skill in the performance of the duties. For a failure in either of these respects, if it resulted in No fraud or collusion was alleged or proved. There was a verdict and judgment damage to his employer, he, the emfor defendant. ployer, is entitled to recover compensation. 70 Ill., 268. Held, no error. Beyond all doubt the general rule is that the obliga- Decisions of the courts of the tion of the attorney is to his client highest authority support that propand not to a third party, and unless osition, but the difficulty in the way there is something in the circum- of plaintiffs is that they never emstances of this case to take it out of ployed the defendant to search the records, examine the title, or make over or nullify the express prothe report, and it clearly appears visions of the contract. So, where that he never performed any such there is no contract, proof of usage service at their request or in their will not make one, and it can only behalf, and that they never paid be admitted either to interpret the him anything for the service he did meaning of the language employed perform in respect to that trans- by the parties, or where the meanaction, nor is there any evidence ing is equivocal or obscure. 5 Wall., tending to show any privity of con- 663, 679. tract between them and the defend- Suffice it to say these parties ant, within the meaning of the law, never met, and there was no comas expounded by the decisions of munication of any kind between the the court. defendant and the brokers, or the Every imputation of fraud is dis- lenders of the money. Nothing of claimed, and it is clear that the the kind is pretended, the only sugtransaction is not one immediately gestion in that direction being that dangerous to the lives of others. it may be held that the applicant for Where there is fraud or collusion, the loan, when he employed the the party will be held liable, even defendant, may be regarded as the though there is no privity of con- agent of the plaintiffs. Such sugtract, but where there is neither gestion being entirely without evifraud or collusion nor privity of dence to support it, is entitled to no contract, the party will not be held weight, especially as it appears that liable unless the act is one im- the principal certificate was prominently dangerous to the lives of cured several days before any interothers, or is an an act performed in view upon the subject of the loan pursuance of some legal duty. 2 M. took place between the brokers and & W., 519, 530. the plaintiffs. Testimony was introduced at the trial tending to show that there is a local usage in the district that the attorney examining the title of such an applicant for a loan shall be considered as also acting for the lender of the money, and complaint is made that the court below did not submit that evidence to the jury, with proper instructions. Held, no error. Evidence of usage is not admissible to contradict or vary what is clear and unambiguous, or to restrict and enlarge what requires no explanation. Omissions may be supplied in some cases by such proof, but it cannot prevail J., Judgment affirmed. Opinion by Clifford, J.; Waite C. sent. This action was brought by plain- did not have the money on hand, or tiff, a creditor of B., against defend- that they paid it over to the wife of ants, who hold an estate as trustees, the cestui que trust, in pursuance of for the benefit of B., under the will a decree, in an action for divorce, of his father, to collect his debt out made before the judgment in this of the trust estate. A judgment case was rendered. We must assume was rendered in favor of plaintiff, that that fact was considered, and fixing the surplus income of the an- duly weighed, and the surplus denual fund accruing during the three creed is unaffected by it. While years after the suit was commenced the trustees were not, in the first at $2,572.48 and directing that the instance, personally liable for the debt and plaintiff's costs be paid by debt, they have become so by disthe trustees out of that sum. No obeying the command of the judgappeal was taken from this judgment. Opinion by Finch, J. All concur, except Rapallo and Danforth, JJ., dissenting. REFERENCE. APPEAL. N. Y. COURT OF APPEALS. Catlin et al., applts., v. The Adirondack Co., respt. ment. It was duly entered in the Order of General Term, affirming proper office on August 6, 1879. order directing execution to issue, On the same day a copy was served affirmed. on defendants' attorney, and, on August 28, on the trustees, and on that day a formal demand also served upon them, requiring them to pay pursuant to the terms of the judgment. On October 13 a notice of motion was served on behalf of plaintiff, asking for leave to issue an execution against the trust estate, or against the trustees individually, as a punishment for their contempt. in disobeying the mandate of the court. This motion was granted, so far as to permit a precept to be issued for the collection of plaintiff's debt out of the property of the trustees. This order was affirmed by the General Term, and an appeal taken to this court. Decided June 8, 1880. An order reversing a judgment entered on a referee's report, and granting a new trial, does not of itself vacate the order of reference; that stands, unless otherwise specificaly provided. An appeal will not lie to the Court of Appeals from such an order. See S. C., 9 W. Dig., 180. This was an appeal from an orNicholas E. Kernan, for applts. der of General Term, affirming an A. C. Coxe, for respt. order of Special Term denying a Held, That the order was within motion to set aside a judgment the power and discretion of the herein. The action was referred by court; that defendants were bound stipulation; the referee reported in by the judgment; it determined favor of plaintiff, judgment was enthat they had the money applicable tered upon the report of the refto the payment of the debt, and eree, which was upon appeal rethey cannot now claim that they versed, and a new trial granted, nothing being said in the order of Marshall P. Stafford, for applts. Held, That the reversal of the judgment on the report of the referee, and the granting a new trial, did not of itself vacate the order of reference; that stands, unless provision is made to the contrary, or the order is vacated on motion. The practice has been to construe the order granting a new trial as directing such new trial before the same referee, unless otherwise specifically provided; therefore, even if the powers of the referee were exhausted when he filed his report, they were revived by the order to try the case. That the order was not appealable, and the appeal should be dismissed, with costs. Appeal dismissed. Per curiam opinion. All concur. WILLS. N. Y. COURT OF APPEALS. Ferrer et al., respts., v. Pyne et al., exr's., applts. the children of I., the son of another deceased daughter, and his sons. Held, That the residuary legatoes took per stirpes, and not per capita. Affirming S. C.. 9 W. Dig., 50. This appeal involves only the con- William B. Putney, for applts. Held, That the legatees named in the residuary clause took per stirpes, and not per capita; that the fact that the testator does not speak of the children of his dead daughters by name, but as "the son of Isabella," or "the children of Irene," shows an intention to designate them not as in Decided June 1, 1880. Testator, by his will, bequeathed $50,000 to his daughter A., and the same amount to " the children of I.," a deceased daughter; and after other bequests, he directed the remain. der of his estate to be divided between A., [dividuals, but as a class, as repre- · sentatives of their parents, and as substitutes for them. An intention to treat the children of Irene as a class may fairly be deduced from the words "to the children of Irene $50,000," and we may conclude that he used the same words which occur in the residuary clause with the same signification and intent. Judgment of General Term,reversing decree of surrogate, affirmed. Opinion by Danforth, J. All con cur. MECHANICS' LIEN. lowed the rent up to the commencement of the action. Held, No error; that the contract, for the purposes of the action, must be treated as then performed. Affirming S. C., 8 W. Dig., 20. This action was brought to foreclose a mechanic's lien under chapter 379 of the Laws of 1875. Defendant P. owned the premises against which the lien is sought to be enforced. In June, 1876, he contracted with one G. to make certain alterations and repairs in and additions to such premises, for which he agreed to pay him $5,000. G. leased certain premises of P., and it was agreed that the rent accruing Heckman, respt., v. Pinckney, before the completion of the conimpl'd, applt. Decided June 1, 1880. The Act of 1875, in relation to mechanics' liens in the City of New York, supersedes, and by necesary implication repeals the Act of 1863. By g 1 of the Act of 1875, sub-contractors, as well as contractors, are given a lien for labor and materials. The words "liable to pay at the time" in the restrictive clause of § 1, mean liability to pay, by virtue of the contract, either presently or in futuro, and cannot be confined to the amount actually payable by the terms of the contract at the time the lien is filed. tract should be credited to P. on the contract, this was to be performed within two months according to certain plans and specifications, and it was agreed that in case G. failed to perform within the time specified, P. should be released from the contract. G. employed plaintiff to do the carpenter's work. P. bases his defense on the ground that G. failed to perform his contract. The referee found that G. did not make cornices and put centre pieces in certain of the rooms as agreed, and that the material used for deadening the floors did not contain hair agreed defendant was to be released from the as required by the contract, and contract. In an action to foreclose a lien, that one of the lintels was cracked the answer did not allege damage from G.'s and had not been replaced by a whole failure to perform within the time specified, one. The referee also found that the but defendant testified that he sustained contract was substantially performed damage to a certain amount in loss of rents. and that in the matters complained of performance had been waived. He also found that a performance of the contract within the time specified was waived. P. did not allege in his answer that he had sustained Defendant made a contract with G. by which the latter was to repair and alter certain premises for a specified sum, and if he failed to perform within a certain time, it was The referee found a substantial performance of the contract, a waiver of defects, and also of failure to perform in time, and refused to find that the damage for delay was any spefied amount. Held, No error. to G.'s rent for premises occupied by him was |