When the possession of property is obtained by artifice, with felonious design, the title remaining unchanged in the owner, it is larceny; but if the owner is deceived by fraudulent representations into surrendering possession and tille, it is not larceny, but false pretenses (11 N. Y. Sup. Ct. Repts., 511; 9 Car. and P. 741; 38 Eng. C. L. 420; 53 N. Y.111).

According to these rules and authorities the prisoner could not be convicted of larceny. He should have been charged with obtaining money under false pretenses, unless it could be shown that com

the time when he received them.

attorney for the firm in the suit in which the judgment was recovered. After the dissolution of a co-partnership, one of the partners in a suit brought against the firm has no authority to enter an appearance for the other partners who do not reside in the State where the suit is brought and have not been served with pro

cess.

In an action on a foreign judgment, the record of which discloses an appearance, it is competent for the defendant to show the appearance was unauthorized.

Error to U. S. Circuit Court, Northern

District of Illinois.

plainant did not intend that the prisoner should become the owner of the bills at An action of debt on a judgment renHe is not entitled, however, to be dis-dered in New York against plaintiffs in charged, because he has been tried for an record and several special pleas questionerror. Lybrand, pleaded separately nul tiel offense not committed by him; the case of McCord v. People (46 N. Y., 470) se-ing the validity of the judgment for want of jurisdiction over his person. The cures him no such right. He should be kept in custody until a further trial of evidence the record of the New York plaintiffs on the trial simply gave in the present indictment can be had, or until an opportunity may be afforded of judgment, which showed that an attorney presenting the case to another grand jury, fendants, who were sued as partners. had appeared and answered for both deand he be placed on trial for obtaining The answer admitted the partnership, money under false pretences. but set up various defences. A trial was had and judgment given for plaintiffs. This was the substance of the New York

The present judgment must however be reversed and a new trial ordered.

Opinion by Daniels, J.; Davis, P. J., record. The plaintiff gave no further and Brady, J., concurring.

evidence. Lybrand then offered to prove that he, Lybrand, never was a resident, or citizen of the State of New York; and

JURISDICTION. FOREIGN JUDG-that he had not been within said State at MENT. PARTNERSHIP. AP

PEARANCE.

U. S. SUPREME COURT.

any time since, nor for a long time before the commencement of the suit in which the judgment was rendered upon which

Hall and Lybrand, plffs. in error vs. the plaintiffs in this case brought suit;

Lanning et. al. defts., in error.

Decided October Term, 1875.

and that he never had any summons, process, notice, citation, or notice of any kind, either actual or constructive, ever

A judgment recovered against co-part-given or served upon him; and that he ners in one State cannot be enforced never authorized any attorney or any in another against a partner not other person to appear for him; and that personally served with process and not residing in the State where the no one ever had any authority to appear judgment was obtained, though his for him in said suit in the State of New co-partner, after dissolution, may York or to enter his appearance therein, have authorized an appearance by nor did he ever authorize any one to em

personally liable in a suit brought in Mary Elizabeth Jackson, an infant, for another State, against him and his co-leave to sell her real estate. partners, although the latter be duly served with process, and although the law of the State where the suit is brought authorizes judgment to judgment to be rendered against him, and that his co-partners after dissolution cannot, without his authority, implicate him in suits brought against the firm by voluntarily entering an appearance for him.

I869, an application was made by Mary tween the one-half which Hewson sup

posed he was buying and the one-third which he actually bought, to-wit, the sum of $11,166.66, be refunded to him.

Elizabeth Jackson, an infant, through her next friend, for leave to sell her real estate. The petition showed that said infant, as grand-daughter and heir-at-law Upon the foregoing facts appearing, of one Lewis Jackson, was owner of an the application to have the money reundivided half of certain property located funded was denied and this appeal taken. in 53d street, New York City, that such S. V. R. Cooper, for appelt. land was unproductive and that it was John Townshend, Guardian in person. for the interest of the infant that the land Held, That the fact found by the refshould be sold for the benefit of such in- eree in the proceedings to sell, with reffant. One Townshend was appointed erence to the interest of the infant, was special guardian for such infant, and the equivalent to a representation to whoever matter was referred to a referee to take might become the purchaser in the proproof of the facts set forth in such peti-ceedings that the interest proposed to be tion and report to the court. Proofs were sold was an undivided half of the land, taken by the referee, who reported that subject to the widow's estate in dower. the facts stated in the petition were true The sale of the infant's interest is made that Mary Elizabeth Jackson, as heir-at-with the understanding that such interest law of Lewis Jackson, was the owner in has been accurately ascertained by the fee of an undivided one-half of the pro- report of the referee, and upon that basis perty described in the petition, and that the purchaser buys.

it was for the interest of the infant that That in this case the purchaser relying the land be sold, &c. On the coming in upon the representation in the petition. and confirmation of the report of the and report aforesaid, as well as the other referee, the special guardian was author- parties to the proceeding, were involved. ized to enter into a contract for the sale in a mutual and material mistake, by of the right of the infant in the premises, which the purchaser was led to pay at the which such guardian afterwards did, and sale one-third more than he otherwise upon his report T., the guardian, was would have paid. The general rule of directed to convey the interest of the in- equity applicable in such cases is, "That fant in the premises to Henry S. Hewson. an act done or contract made under a Such conveyance was made and the pur- mutual mistake, or ignorance of a matechase-money, $3,500, paid to the special rial fact, is voidable and relievable in guardian by the purchaser. After the sub- equity." And if one of the parties innosequent conveyance by Hewson the pur-cently misrepresents a material fact by chaser, by full covenant warranty deeds mistake it is equally conclusive, for it of this property and after the conveyance operates as a surprise and imposition upon of same premises by Hewson's grantee, the other party.-(1 Storys. Eq. Pr., 11th an action of ejectment was brought by Ed., §§ 140, 147, 193 and 994 and cases. one Georgianna L. Jones, by which it cited.) was adjudged that she, as only child of Geo. L. Jackson, son of Lewis Jackson deceased, was entitled to an undivided third of the premises aforesaid, purchased by Hewson as aforesaid. Upon such adjudication Henry S. Hewson, the petitioner herein, makes this application that the difference in the purchase price be

In Carr v. Carr 3 Simons 447, such relief as is sought by the present application was granted.

The order made should be reversed and an order entered confirming the referee's report and directing the amount found to be equitably due to the purchaser, to-wit, $1,166.66, be reimbursed to him with in

terest without costs under the circum- the builder consisted only in having built a fence around the lot and furnishing

stances.

Opinion by Daniels, J.; Davis, P. J., some lumber which lay upon the premises, and Brady, J., concurring.

MORTGAGE. LIEN

PRIORITY. CONNECTICUT SUPREME COURT OF ERRORS.

amounting in all to about $800; but he afterwards proceeded with his contract, and finally acquired a lien for many thousands of dollars.

The work was done under an oral contract with F., made prior to the acquisition of the title by him, but through

Middletown Savings Bank v. Fellowes. changes and from various other causes, Decided February, 1875.

the completed work very largely exceeded

A mortgage given upon the acquisition the amount originally contemplated by of title has precedence of a me- both parties. chanic's lien, acquired by reason of labor on, and materials furnished to the premises under a contract with the mortgagor, who at the time the labor and materials were fur nished had a contract for, but no title to, the premises. Whether bringing materials upon the premises, and building a fence around the lot would be sufficient to establish a lien, quære. The work done having far exceeded the price agreed upon at the time of the taking of the mortgage, whether, if the builder's lien had had precedence, it could have covered more than work agreed upon, quære.

Bill to foreclose a mortgage.

S., the owner of a house and lot, contracted to sell it to B., who thereafter contracted to sell it to F.

While S. still held the title and possession, F. employed a builder to make extensive repairs and improvements on the place. The builder, by permission of S., went upon the premises and commenced work.

About three weeks later, S., B. and F. met, and S. made a deed directly to F., who at the same time and as a part of the transaction, made a mortgage to the plaintiff for money actually loaned, the plaintiff having no knowledge of the builder's lien, and the mortgage being made under a previous agreement of F. to make it on acquiring title. At the time of the conveyance and mortgage, the work done by

Held, That the mortgage lien was entitled to priority. It is well settled in Connecticut that the land records should show the title to real estate; this is a wise and salutary policy to be enforced, unless there are controlling reasons to the contrary; that the plaintiff stands substantially as though the mortgage had been given it by S. The acquisition of the title, legal and equitable, to the premises, by F., and his mortgage of the same in fee to plaintiff, was all one transaction, so that if the builder had, prior thereto, furnished materials or had done work which would entitle him to a lien, there was no point of time in which that lien could slip in and take precedence of the mortgage. No work having been done upon the buildings, but only on the fence around the lot, there are serious doubts, to say the least, whether that furnished grounds for a lien.

The amount actually expended in work and materials was largely in excess of what either party anticipated at the commencement. It is by no means certain that, had the original understanding as to the amount of expenditure, been carried out, the property would not have been ample to pay both these encumbrances. Whether or not the mechanic's lien could, equitably, be thus increased to the prejudice of the mortgagees; quære?

Judgment for plaintiff.
Opinion by Foster, J.

for such other relief as might be equita- A failure to remove the personal prop

It was also objected on the part of the assignee that the other creditors should have been made parties to the action. There is nothing in the complaint to show that there were other creditors. Held, That this objection was not ten- February 25, 1867, a stay of proceedings