This action was brought to compel liance upon the promise of defendant the specific performance of a contract to give him the title to the land, there for the purchase of lands, entered into was an implied consent on the part of by the agent of the parties. It was the defendant that he might take posagreed, in January, 1864, by parol, session as owner. In all cases where that plaintiff should pay $150 for the the contract for the sale of land is land, and receive a warranty deed. In silent as to the possession, and the venApril following defendant and his wife dee has paid the entire consideration, executed a deed, which was delivered and fully performed on his part, and all to plaintiff's agent, who then paid the that remains for the vendor is to give the whole consideration, $150. This deed deed, there must be an implied agreewas subsequently delivered to plaintiff, ment or license that the vendee may at who found that it did not truly express once take possession and have the use of the consideration-it being therein the land. In the absence of proof to the stated at $100-and it contained cer- contrary, it could not be inferred that tain reservations not authorized by the the vendor intended to retain the use of agreement; he thereupon declined to both the land and the consideration receive it, and returned it to defendant's paid therefor. Suffern v. Townsend, agent, who agreed to have it corrected 9 J. R., 35; Erwin v. Olmstead, 7 Cow., and returned to him. This was never 229; Kellogg v. Kellogg, 6 Barb., 116; done. Defendent did not repudiate the Spencer v. Tobey, 22 Barb., 260, disparol agreement, but agreed to "make tinguished. it all right." He did not decline to perform it until April, 1867-a short

time before this action was commenced.
The land was wild and uncultivated,
several miles from any highway. In
the Fall of 1864 plaintiff, with the con-
sent of the adjoining owners, cut out
and made a road for two and a half
miles from the highway to the lot, and,
prior to the commencement of this
action, made roads upon the lot, under-
brushed and cut up fallen trees thereon,
preparatory to clearing about a quarter
of an acre, built a bough shanty, annually
cut and drew from the lot wood and tim-
ber, and paid the taxes thereon. The
referee found that there had been a
sufficient part performance of the agree-
ment to take it out of the operation of
the statute of frauds.

L. W. Russell for respt.
Samuel Hand for applt.

Held, no error: That after plaintiff had paid the full consideration, in re

Judgment of General Term, affirming judgment for plaintiff, affirmed. Opinion by Earl, J.

PRACTICE.

EXECUTION. PRO-
CEEDINGS TO REVIVE.
N. Y. COURT OF APPEALS.

Wallace, applt., v. Swinton, respt.
Decided February 15, 1876.

An execution against the estate of a
deceased debtor is irregular and void
unless the proper proceedings as an-
thorized by section 376 of the code
have been had, and a sale thereunder
passes no title.
Chapter 295 of the laws of 1850, and
section 376 of the code not being en-
tirely repugnant, may both stand.

This was an action of ejectment. Plaintiff claimed title by virtue of a sale under two executions issued upon judgments recovered against F. in his lifetime. F. died in 1864. In June, 1868, plaintiff' applied to the surrogate

of Orange county for permission to is- of the code regulating the procedure in sue executions on the judgments. It the court in which a judgment is recovdid not appear that any of the interest-ered for enforcing the same after the ed parties were notified of the applica- death of the debtor.

Held, That as the two statutes are tion to the surrogate. After the surrogate had granted leave to issue exe. not entirely repugnant both may stand. cutions, application was made to the 11 How., 200; 13 Abb. Pr., 80; 45 supreme court and the order to show N. Y., 368; 12 Wend., 542; Flanigan cause why executions should not issue V. Iman, 53 Barb., 587; Wilgus v. was served on one of the children of F. Bloodgood, 33 How., 289, questioned. Order of general term granting a new in New Jersey, where all the children and heirs at-law of F. then resided, trial affirmed. thy all being minors, no guardian ad litem was appointed for them. The

Opinion by Allen, J.

executions were issued in pursuance of STATE CONTRACTS. CONSTITU

leave thus obtained, and the land, with
other lands, was sold thereunder. Plain-
tifi was never in possession of the land.
Prior to the giving of the sheriff's deed
to the plaintiff, defendant took posses-
sion under one whom he supposed had
title or the means of obtaining title.

S. W. Fullerton for applt.
C. II Winfield for respt.

TIONAL LAW. DAMAGES.

N. Y. COURT OF APPEALS.
Lord, et al., applts., v. Thomas, respt.
Decided Feb. 1, 1876.

The State cannot be compeiled to pro-
ceed with the erection of a public
building by a contractor with whom
it has a contract for its erection. A
law of the state suspending such a
work is not unconstitutional, as im-
pairing the obligations of the contract.
The contractor's remedy for any
damages he might sustain is an ap-
plication to the legislature.

Held, That the executions were void so far as the real estate sought to be reached was concerned, and the plaintiff acquired no title under the sale as against those not made parties, to the This was an action brought by plainproceedings authorized by law for the tiffs, as assignees of one A., of a conrevival of the judgment against their tract between him and certain persons property, and making them parties to styled commissioners, for doing certain the judgment. 1 Cow., 711; 10 Wend.," brick and stone work for the Elmira 206; 18 N. Y., 412.

It is not optional with the judgment creditor whether he proceeds under 284 or 376 of the code. If the debtor is alive he must proceed under the former, if dead under the latter.

Reformatory," to restrain defendants from letting any portion of the work contracted for to other persons. The said commissioners were appointed under chapter 427, Laws of 1870, and were charged with the general superintendIt was claimed that chap. 295 of the ence of the ground for the reformalaws of 1850, which relates to the is- tory, which they were authorized to suing of executions, and the enforce- purchase, and the design and construcment of judgments against deceased tion of the building, subject to the judgment debtors, enacts, among other proval, by the governor, comptroller things, that the leave of the surrogate and State engineer, of the plan adopted is necessary, superseded the provisions by them. A site was purchased and a

ap

plan of the building adopted and ap- public work, or providing for its perproved, and a contract entered into formance by different agencies than with A. to furnish the materials and do those theretofore employed, is not subthe stone and brick work required in ject to any constitutional objection, beits erection. The contract was assigned cause the change would involve a breach. to plaintiffs, with the assent of the com- of contract with a contractor who had missioners. In 1874, after a part of contracted to do the work. The conthe work had been done under the con- tractor would have a claim against the tract, an act was passed by the legisla-state for any damage sustained by him ture (chapter 323) which suspended from the breach of the contract, which the commisions and provided for could be enforced by appeal to the the appointment, by the governor, of a legislature. 43 N. Y., 408. superintending builder in their place, and vested in him, so far as the construction of the building was concerned, all the powers and duties theretofore possessed by the commissioners, and provided for the purchasing of the material, and that all things connected with the erection of said building should be done by contract, to be awarded to the lowest responsible bidder, after being advertised as is now required for the letting and advertising

Judgment of General Term, affirming judgment for defendant, affirmed. Opinion by Andrews, J.

BROKER.

ENGLISH

PERSONAL LIABIL-
ITY.

DECISIONS-COMMON PLEAS
DIVISION.

Southwell and another v. Bowditch.
Decided January 15, 1876.
A broker having signed and sent to the
plaintiff's a note of a contract in the
following terms:-"I have this day
sold by your order and for your ac-
count to my principals about five tons
of pressed anthracene. W. A. Bow-
ditch," is personally liable, in an ac-
tion for goods sold and delivered,
upon the contract.

of state work on the canals. Defendant
was appointed superintending builder.
Ile advertised for proposals to do cer-
tain work which was included in the
contract with A., and plaintiffs claimed
that they were entitled to perform it.
Wm. H. Bowman for applts.
Geo. F. Danforth for respt.
Held, That defendant was author-ered; plea, never indebted.
ized by the Act of 1874 to enter into a
new contract for the completion of the
building, and could not be enjoined at
the instance of plaintiff from proceeding
to execute this power.

Declaration for goods sold and deliv

Issue.

At the trial before Lord Coleridge, C. J., at the sittings in London after Michaelmas Term, 1874, the facts, so far as material, appeared to be as folAlso held, That the state cannot be lows:-The contract of sale relied on compelled to proceed with the erection by the plaintiffs was a sold note signed of a public building or the prosecution by the defendant, who was a colonial of a public work, by a contractor with broker, in the following terms:whom it has contracted for the erection"Messrs. W. A. Southwell & Co. I of the building or the performance of have this day sold by your order and the work. 1 Den., 317. A law of the for your account to my principals about State, suspending or discontinuing a five tons of pressed anthracene, at five

SUPERIOR COURT OF CINCINNATI GEN-
ERAL TERM.

Samuel Burt vs. Frederick Creppel.
Decided October Term, 1876.

shillings per cwt. of pure anthracene, Opinions by Coleridge, C. J.; Grove to be delivered free to Free Trade and Denman, J. J., Wharf' in casks in good export condition. The percentage of pure anthra- ESTOPPEL. BOUNDARY LINE. cene for value to be referred to Dr. B. Paul, who is to test in the following manner: [then followed a description of the manner of testing]; payment in cash in fourteen days after delivery, less 23 per cent. discount and 1 per cent. brokerage. The above anthracene to be made all from coal tar. W. A. Bowditch." It was contended for the plaintiffs that this document amounted to a contract of sale, making the defendant personally liable for the price of the goods delivered under it. It was con

tended for the defendant that the note

did not import personal liability on the defendant's part. The defendant had acted, in buying the goods, as broker for a firm of Bloth & Co. The ver

A doubtful or disputed boundary line may be agreed upon by parol; and a party so agreeing is afterwards estopped from denying the same, if the other, relying upon it, erects improvements.

B owning a large lot of ground, sold bounds to S by deed. They agreed and conveyed a part of it by metes and upon the boundary line between them, which was probably somewhat different from that which the calls of the deed would establish. S sold and conveyed to C, by the same description as that

diet was entered for the plaintiffs for 3257., leave being reserved to the de-contained in the deed to S, pointing

fendant to move to enter a nonsuit on the ground that there was no evidence to render the defendant liable for goods

sold and delivered. A rule nisi had been obtained accordingly.

Held, That the document was a contract of purchase and the defendant's

signature thereto being unqualified, he is personally liable.

The expressions used in this contract, though they show that the defendant was acting as an agent, must be taken

as showing no intention that the defendant should be exempted from the liability that would ordinarily be thrown upon him by law when acting for an undisclosed principal.

It seems that words added by way of qualification to the signature, are entitled to more weight than the same expressions occurring in the body of the

instrument.

Rule discharged.

out the division line that B had shown to S. C commenced to erect a new and claimed that its wall was upon his house upon his lot, when B interposed, lot, being over the line he had pointed out to S, and which S had pointed out to C. C took down this wall, and built according to such pointed out line, B not objecting until after C had completed his house. He then brought ejectment for the strip between the line as called for in the deed, and the

line as pointed out. Owing to an uncertainty as to a corner of B's original tract, the division line as given by the deeds, was not certain.

Held, A disputed or doubtful boundary may be agreed upon by parol; and if the parties make improvements upon the disputed ground in accordance with such agreement, they will be estopped from denying the line so agreed upon.

Their respective deeds cover the land referee, if possible, that defendant had

This is an action on a promissory note of $450, dated April 28, 1873, which plaintiff claims was given to him by defendant.

Defendant denies that he ever gave to plaintiff any note of $450, and that if he did, it was given while he was intoxicated, and was without any consideration, and was void.

On the trial, defendant offered to prove that in 1870, plaintiff said he had not one hundred dollars; that for some two years he was employed by a firm of millers and received for his services the sum of $1.50 per day, and out of it had to furnish a house and support a wife; that in June or July, 1872, plaintiff said that he had no funds, and could

received no money on said note. Taking the evidence offered in connection with the fact that when it is claimed the note was given the defendant was intoxicated, a strong inference might be drawn that advantage had been taken of defendant's condition to obtain the note without any consideration. Judgment reversed.

Opinion by Mullin, P. J.; Smith and Gilbert, J. J., concurring.

LANDLORD AND TENANT.
SUPREME COURT OF PENNSYLVANIA.
Hey v. McGrath.

Decided February 21, 1876.
In Pennsylvania a tenancy at will is
construed to be a tenancy from year
to year.

Where the sub-tenant purchases the title of the paramount landlord, he is invested with all the latter's rights, including the power to determine the original lease.

Error to the District Court of Philadelphia County.

Ejectment by McGrath against Hey to recover the possession of an office.

On the 16th of April, 1866, one Stone leased the premises in which the office was situated to Hey, for a period not expressly limited, at a specified annual rent, and payable in monthly instal

not raise $100. There was a judgment by the referee ments. The indenture of lease confor plaintiff. tained the following stipulation:

Held, That as defendant was in the "And it is hereby expressly underattitude of claiming on the trial before stood and agreed between the said parthe referee that plaintiff had taken ad-ties of the first and second parts, that at vantage of him while intoxicated, and no time, during the continuance of the got from him the note (if the note was said party of the second part as a tensigned by him), without any considera- ant of the aforesaid premises, leased tion therefor, the evidence offered above and demised by the said party of the was competent, in order to satisfy the first part, is the aforesaid annual rental