Action by Frank Bryant against John Grady and the Higgins Classical Institute Building and Land. Case reported, and judgment for plaintiff.

Action to enforce a lien claim. The case was reported to the law court upon the following facts, found by the presiding justice:

In August, 1901, the defendant John Grady made a contract with the Higgins Classical Institute to build a school building and a dormitory building. The plaintiff, Bryant, contracted with the defendant Grady to supply him with certain woodwork for those buildings. Under this contract the plaintiff did furnish labor and material to the amount of $1,692.42, which was used in the construction of the school building with the consent of the institute. They were charged on his books to Grady. The plaintiff seasonably filed his lien claim in proper form, and seasonably began this action, and attached the school building for his lien claim. The regularity of these proceedings is admitted.

In his writ the plaintiff gave a credit of $451.93, and at the hearing gave a further credit of $465.12 received afterward, making a total credit of $917.05, which, deducted from the $1,692.42, leaves a balance of $775.37, for which the plaintiff now claims a lien on the school building; the defendant Grady having been defaulted.

The plaintiff's account in this action began November 1, 1901, but is only a part of his general account for both buildings. On January 24, 1902, he applied to the defendant for a payment on general account, and after some correspondence he received the defendant's negotiable promissory note for $1,000, on 30 days, which he credited on the account on his ledger at that date as follows: "1902, Jan. 24, Cr. by note, 30 ds. $1,000." This note Bryant discounted at the bank. On March 14, 1902, Mr. Mansur, the architect, certified that Grady, the defendant, was entitled under his contract with the institute to a payment of $1,000. Grady indorsed this certificate to Bryant, and also gave him an order on the treasurer of the institute for $1,000, which sum was paid by the treasurer direct to Bryant, and charged by the treasurer to Grady. Bryant applied this $1,000 to the payment of Grady's $1,000 note of January 24th preceding, and did not enter it on his books or account.

Again, on April 22, 1902, in response to requests for payment, Grady sent to Bryant a negotiable promissory note for $500, which Bryant credited on his books and account on that date as cash, and discounted at the bank. May 22, 1902, the architect gave Grady another certificate for a payment of $1,000, which Grady turned over to Bryant with an order for payment to him as before. The $1,000 was paid on this order by the treasurer direct to Bryant, who applied $500 of it to pay Grady's note of April 22d preceding, and credited the remaining $500 to the ac

count. Both of these applications were assented to by Grady. In the same way $2,500 more was paid by the institute direct to Bryant on account of Grady, making $4,500 in all so paid on general account.

In taking these two notes Mr. Bryant did not intend to release or reduce his lien claim on the building, nor did he suppose he had done so. Mr. Grady did not claim that any lien had been affected thereby. None of the officers of the Higgins Classical Institute, however, knew anything about these notes till some time in September following, nor did either of them know that the first payment of $1,000 and the half of the second payment of $1,000 were applied to any notes.

In September Bryant submitted his account with Grady for both buildings to Mr. Mansur, the architect, in order to get a certificate for a further payment; but it appearing to Mr. Mansur that by crediting on the whole account the entire $4,500 paid by the institute direct to Bryant, the account appeared upon its face to be fully paid, he declined to give any further certificate for Bryant's benefit. Whereupon Bryant proceeded to enforce his lien claim on the school building.

To recapitulate: Of the $4,500 paid by the institute direct to Bryant on Grady's orders only $3,000 was credited by Bryant directly to his account with Grady. The remaining $1,500 was applied to the negotiable promissory notes previously given by Grady to Bryant. This disposition of those payments, if allowable against the institute, left a balance due Bryant of $775.37, for which he had a lien on the school building. If, however, the application of the $1,500 to the notes of Grady was not allowable against the institute, and the institute is entitled to have the $1,500 credited on the account as reduced by the notes, then, as to the institute, Bryant's account is paid. If only the $500 is to be thus credited, then there is a balance due, as against the institute, of the $775.37, less the $500, or $275.37.

The original certificate of the architect on which the various payments were made by the institute direct to Bryant were to be presented for inspection by the law court, if desired by either party.

Argued before WISWELL, C. J., and WHITEHOUSE, STROUT, SAVAGE, POWERS, and SPEAR, JJ.

J. W. Manson, for plaintiff. A. L. Blanchard, for defendant Higgins Classical Institute.

WISWELL, C. J. This action to enforce a lien upon a building was reported for the determination of this court upon the facts found by the justice presiding at nisi prius. From that report the following facts material to the issues involved appear:

The Higgins Classical Institute, the owner of the school building attached, and upon

which the plaintiff seeks to enforce his lien, made a contract with the defendant for the construction of this building, and also another building, to be used as a dormitory. Subsequently the plaintiff made a contract with the defendant to furnish him certain labor and material to be used in the construction of these buildings, and, in pursuance thereof, and with the consent of the owner, did furnish labor and material to the amount of $1,692.42, which were used in the construction of the building attached. This amount is to be reduced by credits of $917.05. The plaintiff seasonably filed his lien claim in proper form, and seasonably began this action, and caused an attachment to be made of the building upon which the lien was claimed. No question is made as to the regularity of these proceedings.

But the owner of the building claims that further credits should be given upon the plaintiff's account, at least so far as his lien claim is concerned; and this question, which arises under the following facts, is the only one involved. The plaintiff's general account for labor and materials furnished for both buildings commenced November 1, 1901. On January 24, 1902, in response to an application for a payment upon account, the defendant gave him his negotiable promissory note for $1,000, on 30 days' time, which the plaintiff took, had discounted at a bank, and gave the defendant credit on his ledger for that amount. The entry on the plaintiff's ledger being: "1902, Jan. 24, Cr. by note, 30 ds. $1,000." On March 14, 1902, the architect in charge of the construction gave to the defendant a certificate that he was entitled, under his contract with the owner, to a payment of $1,000. The defendant indorsed the certificate to the plaintiff, and also gave him an order on the treasurer of the owner for $1,000, which sum was paid by the treasurer direct to the plaintiff, and charged by the treasurer to the defendant, the contractor. The plaintiff applied this sum to the payment of the defendant's note of like amount, which had become due on the 24th of the preceding month.

and credited the remaining $500 on his account.

The owner of the building claims that the plaintiff, by taking these notes, received pro tanto payments upon his account, which he now seeks to enforce against the building, and, further, that when these two payments, of $1,000 each, were made, as above stated, by the owner to the plaintiff upon the order of the defendant, the plaintiff should have applied them to his general account, and had no right to apply the whole of the first payment and half of the second to the payment of the notes above referred to.

We are unable to agree with the owner in either of these contentions. While it is well settled in this state that the acceptance of a negotiable promissory note, in the absence of any testimony or circumstances to the contrary, is presumed to be a payment of the indebtedness for which it was given, it is equally well settled that this presumption may be rebutted and controlled by evidence that such was not the intention of the parties; and, as a general rule, this presumption will be overcome by the fact that the acceptance of a note in payment would deprive the creditor taking the note of the substantial benefit of some security. Bunker v. Barron, 79 Me. 62, 8 Atl. 253, 1 Am. St. Rep. 282. In this case the court below found that the plaintiff, in taking these two notes, did not intend to release or reduce his lien claim on the building, nor did he suppose that he had done so, and that the defendant did not claim that any lien had been affected thereby. The fact that the plaintiff gave credit to the defendant upon his book for the amounts of these two notes is only a circumstance bearing upon the question of whether or not the notes were in fact taken as payment. In view of the finding of facts upon this question by the court below, and the strong improbability that the plaintiff intended to accept these notes in payment, pro tanto, of his account, thereby releasing the valuable security of his lien upon the buildings, we are satisfied that they cannot be regarded as such payments in this case.

The notes not having been taken in payment when given, their subsequent negotiation would not have been affected by the plaintiff's right, if they had not been paid, to take them up at maturity, cancel or redeliver them to the defendant, and enforce his lien claim precisely as if they had not been given. Davis v. Parsons, 157 Mass. 584, 32 N. E. 1117; McLean v. Wiley, 176 Mass. 233, 57 N. E. 347.

of the previous existing statutes relating to the subject.

Section 37 of this chapter, in which the language of section 25 of chapter 40 of, the Revised Statutes of 1883, is retained, contains no prohibition against a person taking clams within the limits of a town of which he is not a resident, nor does it authorize the inhabitants of a town to adopt any by-law or regulation prohibiting a nonresident taking clams within the limits of their town, or requiring him to first obtain a license from the municipal officers of such town.

It is true that some portions of the section as it now exists are meaningless, and that there may be a very strong inference from the language of the section that the Legislature intended to adopt further provisions to take the place of the repealed sections as to the authority of the inhabitants of towns to regulate the taking of shell fish within their town by nonresidents thereof, but a statutory offense cannot be created by inference or implication, nor can the effect of a penal statute be extended beyond the plain meaning of the language used.

It is equally clear that without legislative authority the inhabitants of a town have no power to adopt by-laws or regulations controlling the subject of seashore fisheries.

It is unnecessary to consider the constitutionality of legislation which discriminates between residents and nonresidents of a town in this respect, since there is no such legislation.

It follows that the allegations in the indictment against the respondents do not constitute any offense under our laws.

In accordance with the stipulation of the report upon which the case comes to the law court, the entry will be:

Judgment for respondent.

(72 N. H. 356)

BROWN v. EASTMAN et al. (Supreme Court of New Hampshire. Carroll. Dec. 31, 1903.)

WILLS-CONSTRUCTION-ESTATES CREATEDESTATES IN FEE.

1. A devise of the residue of testator's property to his widow, to have the use and control of the same, with the right to use as much as she pleased for her comfort and pleasure, and, if there were anything left at her decease, "it is my request that she give the said Congregational church a parsonage, and one half of the residue to my heirs," gave the widow an estate in fee in the whole property, with the right to dispose of the same by will, subject only to the request above recited, which left her free to dispose of the remaining half of the property to her own heirs or otherwise, as she should see fit.

Transferred from Superior Court; Stone, Judge.

Bill for the construction of a will by Dana J. Brown, administrator de bonis non with the will annexed of Ithiel E. Clay, deceased, against Kimball Eastman, executor of the

will of Carolin E. Clay, deceased, and others. Transferred from the superior court. Case discharged.

By the twelfth clause of his will, which is printed at length in the opinion, Ithiel E. Clay gave the residue of his estate to his wife. He died April 6, 1901. After his decease the widow conveyed portions of the real estate received from him, and made gifts to sundry persons from the estate. She died June 23, 1902. At the date of her decease she had on hand a considerable portion of the proceeds of the sale of real estate and of collections from her husband's debtors, and possessed a large part of the estate of which he died seised, in addition to property which she held in her own right prior to his death. By the first and second items of her will, Carolin gave her household furniture and personal chattels to a brother, and provided that the residue of such of her estate as was not acquired under the will of her husband should be divided among her heirs at law in specified shares. By the third item, she devised certain real estate to the Congregational Church at Chatham Center, and be

queathed $1,500 for the erection of a parson

age thereon, provided for pecuniary legacies aggregating $600, directed that one half of the remainder of the estate should be divided equally among the heirs at law of her husband, and gave the other half of the residue to the persons named in the second item. The heirs of Ithiel claim that under his will Carolin took (1) a life estate, with a restricted right to use and dispose of the realty by sale, only, and a limited power to use and dispose of the personalty for her comfort, happiness, and pleasure, without the right to make gifts; or (2) a limited right to use and dispose of the property for such purposes, existing as a power, without general ownership-and that she was not authorized to make gifts during her lifetime of any material portion of the estate received from her husband, or to divide by will a half of the residue thereof among her heirs. The heirs of Carolin claim that, under the will of her husband, she took an absolute estate in fee, and that she had a right to dispose of the property, by deed, gift, or will, in any manner which contributed to her comfort, happiness, or pleasure.

Josiah H. Hobbs and John B. Nash, for plaintiff. Drew, Jordan, Buckley & Shurtleff, for Eastman, executor. James A. Edgerly, Josiah H. Hobbs, and John B. Nash, for certain heirs at law of Ithiel E. Clay. Seth W. Fife and Edward E. Hastings, for certain heirs at law of Carolin E. Clay.

REMICK, J. "I hereby give, bequeath, and devise all the rest and residue of my estate, both real and personal, wherever found and however situated, to my beloved wife, Carolin E. Clay, she to have the use and control of the same and the right to use as much

of the same as she may please for her comfort, happiness, or pleasure, either at home or abroad; and if there is anything left at her decease, it is my request that she give the said Congregational church a parsonage, and one half of the residue to my heirs." We are asked to determine whether, by the foregoing provision in the will of Ithiel E. Clay, Carolin E. Clay took such an estate in the property described that she could, by will, after giving the Congregational Church at Chatham Center a parsonage, and one-half of the residue to the heirs of Ithiel, bequeath and devise the remainder to her own heirs. Looking at the provision in a natural way, regardless of legal terms and technical rules, the conclusion is irresistible that it was the testator's intention to give to his wife, Carolin, not only the unqualified use and enjoyment of the property during her life, but the right to dispose of the same by will at her decease, subject only to the testator's request that she should give a parsonage to the Congregational Church at Chatham Center, and one-half of the residue to the testator's heirs. The legal effect of the words, "I hereby give, bequeath, and devise all the rest and residue of my estate, both real and personal, wherever found and however situated, to my beloved wife, Carolin E. Clay," without other words, would unquestionably be to give Carolin an estate in fee. Nowhere in the entire provision are there any words expressly limiting the estate bequeathed and devised to Carolin to an estate for life, or providing for remainder over. True, the words above quoted are followed by the words, "she to have the use and control of the same and the right to use as much of the same as she may please for her comfort, happiness, or pleasure, either at home or abroad." It is urged that from these words it should be inferred that the testator intended an estate for life. But the final words of the provision, "and if there is anything left at her decease, it is my request that she give the said Congregational church a parsonage, and one half of the residue to my heirs," leave no room for this inference. On the contrary, they show very clearly that the testator understood that he had given the whole estate to Carolin. If he had understood that he had given Carolin a life estate only, it is not probable that he would have been found requesting her to dispose of the remainder in a particular way. If such had been his understanding, it is probable that he would have disposed of the remainder himself, directly and in his own right, and not through Carolin, by way of request. The fact that he adopted the latter course shows clearly enough that he understood that he had given Carolin the entire estate.

The contention that by the words immediately under consideration the testator intended to add to a life estate power to the life tenant to will to the Congregational Church at Chatham Center, and one-half of the resi

57 A.-7

due to his heirs, and to die intestate as to the balance, is contrary to legal presumption (Pub. St. 1891, c. 186, § 6; 29 Am. & Eng. Enc. Law, 354, and cases there cited; Jenkins v. Fowler, 63 N. H. 244, 246), and to all the probabilities. In the first place, the words are inconsistent with the idea of a power. To "request" is not to empower, but to recognize that power to do the thing requested already resides of right in the one of whom the request is made. In the next place, there is no reasonableness in the idea that the testator, understanding that he had given Carolin only a life estate, and that the remainder was undisposed of, requested her to will onehalf of the remainder to his heirs, and died intestate as to the balance. If the testator had so understood, and it had been his intention that his heirs should have the entire remainder, to the exclusion of the heirs of Carolin, it is probable that he would have given the whole remainder to them directly, in express terms, or requested his wife to will them the whole, or died intestate as to the whole. If, on the contrary, with such understanding, it was his intention that his heirs should have only half of the remainder, it is improbable that he would have requested his wife to will them one-half, and died intestate as to the balance, knowing that the effect of such intestacy would be to give them the remaining half.

The only reasonable conclusion is that the testator understood that he had given his wife the fee, and, so understanding, requested her to will one half of what remained at her decease to his heirs; intending and expecting that she would, by right of her absolute estate, dispose of the other half to her own heirs or otherwise, as she saw fit. In reaching this conclusion, we have relied upon the particular provision under consideration. It may be said, however, that a careful study of the will as a whole, in the light of the circumstances under which it was executed, confirms the conclusion reached. Case discharged. All concur.

(72 N. H. 402) BANCROFT & RICH v. UNION EMBOSSING CO.

(Supreme Court of New Hampshire. Hillsborough. Dec. 31, 1903.)

CONTRACTS-INTENT OF PARTIES-CONSTRUC

TION EXTRANEOUS EVIDENCE SALE OF PATENT RIGHTS RESTRAINT OF TRADE REASONABLENESS-SHERMAN ACT.

1. Where an action is brought on a written contract, and there is no prayer for the reformation thereof, the understanding of the parties is to be ascertained from the written contract, viewed in the light of the circumstances under which it was executed; and a finding as to the belief of the parties in reference thereto, based on evidence gathered from extraneous sources, is immaterial.

2. A contract whereby plaintiffs stated that they were willing to give defendants the exclusive right to manufacture and sell certain machines, and full and exclusive license under