allowed to prove later and contradictory statements made by the same person under other circumstances when he was not upon the land. The last declarations were not admitted as original, primary evidence, but to contradict the first declarations. What the former owner said for himself was admitted to impeach what he had previously said against himself. The last declarations were not admissible. It was not a legal contradiction. It was unsworn evidence.

The fallacy of the idea of allowing the testimony to be received consists in looking upon the former owner as a witness in the cause. The first declarations were made by him while standing in a condition the same as if a party to the present suit. His admissions against his own title were of the same quality of evidence as if spoken by the plaintiff himself. If a man's conversation in his favor be admitted against what he has said against his interest, then he would certainly be allowed to corroborate one statement by consistent statements made at other times, and no limit could be fixed in respect to such evidence. Opening the door so widely would lead to mischievous results.

The question involved in the ruling does not appear to have received attention in our own State. It has been several times considered in Massachusetts, and is there in each instance disposed of unfavorably to the plaintiff here. The case of Baxter v. Knowles, 12 Allen, 114, meets the point exactly, where it is said: "The declarations. of the defendant's testator, from whom he claimed title, were not made admissible in his favor by the fact that his declarations at other times were given in evidence by the plaintiff as admissions." Pickering v. Reynolds, 119 Mass. 111, is also precisely in point.

Exceptions sustained.

WALTON, VIRGIN, LIBBEY and EMERY, JJ., concurred.

LIEN-ON BUILDINGS.

FARNHAM V. DAVIS.

March 10, 1887.

Liens on buildings and lots, given by the statute of Maine, must be enforced by suit against the contracting party.

The lien is an incident to the contract.

Where a lien under one contract has been dissolved, by lapse of time, it cannot be tacked to another lien, under another contract, with another and different contracting party.

Symonds & Libbey, for plaintiff. defendant.

Woodman & Thompson, for

EMERY, J. The evidence and the admissions establish the following facts. One Chase made a contract with the defendant to furnish the labor and materials in the construction of defendant's house. Chase procured of the plaintiff certain material which he put into the construction of the house under his contract This material was sold to Chase, upon his credit, but with knowledge of whose house it was intended for; it was so furnished Chase, for said construction, December 16, 1884. The contract between Chase and the defendant was afterward canceled, and subsequently, in May and July, 1885, the

defendant, upon his own credit, purchased of the plaintiff other material for the construction of the house. The plaintiff filed the proper lien-claim August 6, 1885, and began his suit by attachment September 15, 1885, to recover of the defendant, and to enforce a lien for all the material.

There was a sufficient tender for the second lot of material, that purchased by the defendant in person, followed by the timely payment of the money into the court; hence we have only to consider the first bill of material, that purchased by Chase, the contractor, December 16, 1884.

1. The evidence does not satisfy us that the defendant was an original promisor for that bill. That material was not furnished upon his credit. If he did afterward promise to see it paid, it was a collateral verbal promise, not enforceable. We think the evidence does not warrant any personal judgment against the defendant.

2. Should there be a judgment against the house? To obtain such a judgment for material so furnished, the plaintiff should have filed his lien-claim within thirty days after he ceased to furnish material, and have attached the house within ninety days after the last material furnished by him. Rev. Stat., chap. 91, §§ 32, 34. If this bill of December 16, 1884, were the only material furnished by the plaintiff for this house, then, of course, his lien was lost long before he moved to enforce it. In May following, however, he began again to furnish material for the house, and this time, his last furnishing was within thirty days before filing the lien-claim, and within ninety days before the attach

ment.

Here were two distinct periods of furnishing material; one began and ended in December. The other began in May and ended in July. They were distinct transactions, under distinct and different contracts. The first was under a contract with Chase. The last was under a contract with the defendant. Each bill was a separate cause of action, to be enforced in a separate suit against a different person. The lien for each was a separate lien, to be separately enforced. Our statute, so far as liens on buildings are concerned, does not provide for a process in rem, regardless of any personal defendant or any contract. There must be a suit against the party promising, upon which the property benefited may be attached. The contract, whether express or implied, is the principal. The lien is the incident. The lien must be enforced along with the contract. When a lien arising from one contract has been dissolved, it cannot be restored by tacking on a new lien arising under a new contract. Phillips Mechanics' Liens, 324, and cases cited; Ames v. Swett, 33 Me. 479; Frost v. Ilsley, 54 id. 345; Oliver v. Woodman, 66 id. 59.

The plaintiff urges that, however it may have been under former statutes, there may now, under section 45, chapter 91, be a judgment against the property alone, without any against the defendant. There may be cases where judgment should not be rendered against the defendant personally, for the reason of his discharge in insolvency or for some other reason, although his promise is established. In such case the judgment may be against the property alone. This statute, however,

does not change the nature of the lien as an incident of the contract. It does not dispense with a suit against the contracting party. It does not authorize a suit directly against the owner of the property, if he was not the contracting party. If no contract, express or implied, is proved against the defendant, the suit must fall, and the annexed lien falls with it.

Judgment for defendant.

PETERS, Ch. J., WALTON, VIRGIN, LIBBEY and HASKELL, JJ., concurred.

DEED DELIVERY.

MCGRAW v. McGRAW.

March 7, 1887.

Without a delivery of the deed no title passes, though the deed was duly executed and recorded.

Here the facts, which are fully stated in the opinion, were held insufficient to prove a delivery.

H. M. Heath and E. E. Livermore, for plaintiff. E. B. Harvey, for defendants.

PETERS, Ch. J. James McGraw, by deed dated May 15, 1876, conveyed a homestead to his minor son, who, by deed dated May 19, 1876, conveyed the same to Catherine McGraw, the wife of James, and both deeds were recorded on the twenty-second day of the same month. If the deed to the plaintiff, Catherine McGraw, was never delivered to her she cannot recover. We think a delivery is not proved.

The further facts are these: The deeds, having been sent for record by the husband, were recorded at his expense and returned to him. He then placed them in a small hand-trunk in his bed-room in a file of other papers of his, where they remained till his death, when by the consent of the plaintiff they fell into the hands of the son William. No consideration was paid by the wife. The conveyance was not as an advancement or as security for any debt. The deeds were merely a form to shield the husband against the recovery of fines which were at the date of the transaction likely to be adjudged against him by the State. A very strong fact against the plaintiff is that, although a witness and an intelligent person, she does not disclose a word ever said by the husband to her about the transaction in all his life-time. She says on crossexamination that the deed was in her possession and is hers, and that is all she says about it. What she means by possession is that she took the trunk at one time. Had there been a delivery she would be enabled to disclose more conversation and details about the deed. It also greatly makes against her, that she applied for an assignment of dower out of her husband's real estate when he left none but this.

It is contended by the plaintiff that she has her husband's confession of a delivery, by his executing another deed afterward in which he describes land as bounded on one side by the plaintiff's real estate, meaning the property in question. That act has its force, no doubt, but we think it is explainable. She was the owner of record - the apparent and the husband's purpose was to have the world believe that

owner

It also

she was the owner. It would be natural and convenient to bound the land in this way. Frank McGraw testifies that he never delivered any deed to the plaintiff, though her title comes through him. appears that the plaintiff got more personal allowance upon a representation to the court of probate that she had no real estate. These facts are much stronger against her than any that make in her behalf. The controversy is between her and her husband's heirs, who are not her children.

Judgment for defendants.

WALTON, DANFORTH, EMERY, FOSTER and HASKELL, JJ., concurred.

An assignee of a part of a fund, the whole of which has been trusteed, may claim and hold the part assigned, in the trustee process.

R. N. Chamberlain and Twitchell & Abbott, for plaintiff. W. & H. Heywood, for claimant.

PETERS, Ch. J. This case is governed by the case of Bank v. McLoon, 73 Me. 498. The judge who heard the evidence decided, as matter of fact, that the principal defendant had assigned a part of his debt against the trustee to the claimant. Precisely that fact existed in the case referred to. Notice of the assignment was given to the trustee before his disclosure which, in our practice, was seasonable. Exceptions sustained.

WALTON, VIRGIN, LIBBEY, EMERY and HASKELL, JJ., concurred.

VOL. XI.-70

NEW JERSEY SUPREME COURT.

NELSON V. THE

HOEBERG v. NEWTON, STATE DAIRY COMMISSIONER.
SAME. NEARY V. THE SAME. KELSON ET AL. V. THE SAME.

June, 10, 1887.

STATUTE OLEOMARGARINE ACT-RECORD OF CONVICTION.

Proceedings under the oleomargarine act of March 22, 1886-P. L. 1886. p. 107 -are summary, and the record of them must comply with the legal rules established for the framing of summary convictions. It must set forth the evidence on which the conviction rests and the offense of which the defendant was found guilty.

Certiorari.

Argued February term, 1887, before Justices KNAPP and DIXON. J. W. Beekman, for prosecutors. Mr. McSherry, for State dairy commissioner.

DIXON, J. The several suits brought before us by these writs of certiorari were instituted by virtue of "An act to prevent deception in the sale of oleomargarine, butterine or any imitation of dairy products, and to preserve the public health," approved March 22, 1886. P. L. 1886, p. 107. They were prosecuted by the State dairy commissioner to recover penalties of $100 each, alleged to have been incurred by violation of the fourth section of said act. The complaint, in each case, averred that the defendant, at a time stated, sold to one McGuire a half pound of oleomargarine in imitation or semblance of natural butter, at retail, and did not, at the time of said sale, inform McGuire that the same was not natural butter, but imitation butter, nor give to McGuire a card with the name of the seller printed thereon. The evident object of the complaint was to charge a violation of the section in two particulars, one, by selling without giving the requisite information, the other, by selling without giving a proper card.

In the first particular the complaint is defective, for it sets out only a failure to inform the purchaser at the time of sale. While by the statute information before the sale is sufficient. Being a penal law it must be construed strictly and should not be extended beyond its words. Allen v. Stevens, 5 Dutch. 509. And the party seeking to recover the penalty ought to show a case clearly and distinctly within its provisions. Allaire v. Howells Works Co., 2 Gr. 21. But in the other particular the complaint seems to follow the language of the statute, and, therefore, can be sustained. But the fact that an attempt has evidently been made to formulate an offense in two respects, which has legally succeeded in only one respect, makes it more plainly just for the court to enforce another well-settled rule of law, namely: that in summary convictions the record must show the evidence on which the defendant was convicted, and of what offense he was found guilty. Keeler v. Milledge, 4 Zabr. 142; Buck v. Dauzenbacker, 8 Vr. 359; Doughty v. Conover, 13 id. 193; Lyons v. Spratford, 14 id. 376. The proceedings under this statute belong to the class styled summary. They are to be instituted before a single magistrate, for the