testified that, in consequence of what the plaintiff said, as above related, the company, in making its preparations to rebuild, acted upon the assumption that the plaintiff would move out. Before the bill was filed in this suit, the company had torn down a large part of the block, and had made plans for, and was preparing to erect, a new building on the leased land. The court found, so far as it is a question of fact, that the defendants could not reasonably infer from what the plaintiff said or did during his interviews with Upton that he intended to vacate without some arrangement being made with the defendants satisfactory to himself, and that he is not estopped to set up his lease against them. Upon the filing of the bill a temporary injunction was granted. Charles H. Burns, for plaintiff. Oliver E. Branch and James F. Briggs, for defendants. PER CURIAM.1 The plaintiff, in effect, admitted that his lease was forfeited, that he could not legally hold the defendants' property under it, and that he did not intend to oppose them in tearing down the old block and building a new one. He desired to be reimbursed for the expense and loss he would incur in removing, and the defendants agreed to pay him what was equitable and right. Thereupon they proceeded to tear down the block, and to inflict irreparable damage upon themselves, if he is allowed to deny the truth of his admissions. But his and their understanding was that he would not yield to their legal right, and leave the premises, without an equitable adjustment of his claim for remuneration. During the time required for an adjustment of his claim, the full and complete protection of his rights does not, in equity, make it necessary that the defendants should suffer great and irreparable damage by being deprived of the possession of a part of their block. This is not an action at law. The plaintiff's prayer for equitable relief cannot be granted, except on condition that he shall do what equity requires under the circumstances. Though the court found as a fact at the trial that he is not estopped to claim under his lease, yet it is matter of law that he is estopped to ask equitable relief without doing what, in equity, he ought to do; and equity requires him to do what he gave the defendants to understand he would do. He must, therefore, vacate the premises, upon an adjustment of his claim that the defendants pay him what equity requires to remunerate him for the loss to be incurred by his removal. This result may be effectively accomplished by an order that the temporary injunction be dissolved upon the filing of a bond by the defendants running to the plaintiff, in a sufficient amount, conditioned to pay the plaintiff such sum as shall be found to be equitable. Whatever 1 See footnote, 36 Atl. 607. Where a contract provided that plaintiffs should use defendant's office, and print a paper published by them on defendant's press, and with his type, etc., on payment of a specified sum weekly, and defendant agreed to furnish fuel for the boiler, and a hand to run the boiler and press, he was not liable to plaintiffs for refusal to furnish the same on their failure to pay as agreed. Action by Emery C. Bean and another against Charles L. Fitzpatrick. Judgment for defendant. Case, for depriving the plaintiffs of the use of a printing office. Facts found by the court: In September, 1889, the parties entered into a contract by which the plaintiffs were to have the right to print a paper, of which they were the publishers, in the defendant's printing office. They were to have the use of the press, engine, boiler, and types, and the privilege of occupying the editorial room. The defend ant was to furnish fuel for the boiler, and a hand to run the boiler and press. The plaintiff's agreed to pay the defendant $2 per week for the press work, including use of press, boiler, and engine, and $3.50 per week for use of the office, type, and other printing material. The plaintiffs soon became delinquent in their payments, and on November 9th the defendant demanded of the plaintiffs immediate payment of the amount then due. Upon the plaintiffs' neglect to comply with the demand, the defendant notified them that he should not furnish them with power. In the evening the plaintiffs started a fire under the boiler, and were preparing to print their paper themselves, when the defendant turned down the gaslights, opened the boiler door, and told the plaintiffs they could not print their paper there unless they paid up. Thereupon the plaintiffs left the office. William Little, for plaintiffs. Charles A. O'Connor, for defendant. PER CURIAM.1 The plaintiffs contend that they were tenants of the defendant, and that they could not be ejected, or deprived of the occupancy of the printing office, because the defendant had not given them notice to quit. Whether they were tenants entitled to notice, we need not inquire, as they were not evicted or deprived of the occupancy. The defendant merely refused to perform the executory con 1 See footnote 36 Atl. 607. LAVOIE v. BURKE. ROWE et al. v. SAME. (Supreme Court of New Hampshire. Rockingham. July 30, 1897.) LIENS-BRICKMAKING-PROPERTY AFFECTED. Under Pub. St. c. 141, § 11, providing that any person who performs labor or furnishes materials for making brick, through a contract with the owner thereof, shall have a lien "upon the kiln containing such brick," a general lien attaches to all the kilns upon which the labor was performed, or any part of the materials was furnished. Exceptions from Rockingham county. Separate actions in assumpsit by one Lavoie and by one Rowe and another against one Burke and others. From judgments in favor of plaintiffs, defendant's assignee in insolvency and certain attaching creditors bring exceptions. Exceptions overruled. Assumpsit,-the first case for labor, and the second for materials. Facts found by the court: Lavoie worked for the defendant in making brick from the beginning of the brickmaking season of 1896 (in April) until the defendant stopped doing business (the latter part of September), under a contract with the defendant, who was the owner of the brick, by which he was to work during the season at an agreed price per month. Rowe & Dearborn, the plaintiff's in the second action, furnished wood to the defendant, under a contract made with him before February 13, 1896, by which they were to deliver from time to time, upon request, all the wood there was upon certain lots of land, at an agreed price per cord, but no time of payment was fixed. Others performed labor and furnished materials upon similar contracts. The yard where the brick were made was of sufficient size to furnish room for 10 kilns at a time. Sixteen kilns were burned, and other brick were ready, or nearly ready, for burning. The brick of several kilns were in process of manufacture at the same time. Lavoie's labor was not confined to those that went into any particular kiln, but was performed upon brick indiscriminately, some of which went into each of the 16 kilns, and some were unburned. The wood furnished by Rowe & Dearborn was used in burning brick in the defendant's yard, but it is impossible to say how many, or which, of the kilns. It is also impossible to assign to each kiln the labor performed in making its brick. The defendant failed September 29, 1896; and the brick then in the yard, consisting of six full kilns, two parts of kilns, and the unburned brick, were attached by creditors. These brick were all made after July 25th; those made prior to that time having all been sold and removed. The plaintiffs and others claim liens for their labor and materials, and made attachments to secure the same within the prescribed time. There was due Lavoie $135.33, of which only $102.72 was for labor performed after September 25th, and there was due Rowe & Dearborn $1,438.88, of which only $527.63 was for wood used after September 25th. Judgment was ordered for each for the full amount claimed, subject to exception by the defendant's assignee in insolvency, and by attaching creditors, who contended that Lavoie's judgment should be for $102.72, and that the judgment in Rowe & Dearborn's action should be for the defendant. Drury & Peaslee and A. E. Boisvert, for plaintiffs. G. K. Bartlett, for assignee in insolvency. A. O. Fuller and J. S. H. Frink, for attaching creditors. BLODGETT, J. The statute (Pub. St. c. 141, § 11) upon which the plaintiffs' actions are founded, and by which any person who performs labor or furnishes materials for making brick, through a contract with the owner thereof, is given a lien "upon the kiln containing such brick," was obviously designed to give to laborers and material men a lien upon the property into which the labor and materials have gone; and as such it is not only to be construed liberally, so as to afford the protection and security intended by the legislature, but, as a part of the general lien law of the state, it is to be given such an exposition as has been given to other sections, all of which are to be taken together as one system, and construed consistently with, and by a mutual reference to, each other, as well as with the apparent intent of the lawmakers, and the language of its expression. Assuming the wood was contracted for the use to which it was applied, the application of the foregoing well-settled rules is adverse to both of the defendant's contentions, and brings the case within the principle and reasoning of the decision in Bean v. Brown, 54 N. H. 395, which was a suit to enforce a lumberman's lien for a balance due for drawing a lot of lumber at the contract price of $2.50 per 1,000, and which involved the construction of the statute enacting that "any person who labors at cutting, hauling or drawing wood, bark, logs or lumber shall have a lien thereon for his personal services." Gen. St. c. 125, § 14. Among other defenses, it was contended by the defendant that the plaintiff had a special lien on each 1,000 feet of the lumber, for the contract price of drawing it, and not a general lien on the whole ist for the amount of the unpaid balance. This contention was not sustained, the court saying: "The statutes creating this lien must have a reasonable construction, and the construction contended for by the defendant would be most unreasonable. It would require the laborer to preserve for sixty days the identity of each thousand feet, although the lumber was in possession of another. It would involve endless care, perplexity, uncertainty, disputes, and litigation. In fact, it would be wellnigh or quite impossible to keep each thousand feet distinct and separate. Such a construction would practically annul the statute. We entertain no doubt that the legislature intended to give the person cutting or drawing lumber a lien on the whole quantity drawn, for his personal services." The construction given in Bean v. Brown has since been approved and followed in Calef v. Brinley, 58 N. H. 90, Hill v. Callahan, Id. 497, Hale v. Brown, 59 N. H. 551, and Pike v. Scott, 60 N. H. 471; and when applied to the facts of the present case, in connection with the general statutory provision that "words importing the singular number may extend and be applied to several persons or things" (Pub. St. c. 2, § 3), it gives to the plaintiffs a general lien which attaches to all the kilns upon which the labor was performed, or any part of the materials furnished, and consequently makes the division of time before and after July 25th of no importance. Exceptions overruled. CHASE, J., did not sit. The others concurred. PERREAULT v. SHAW et al. (Supreme Court of New Hampshire. Merrimack. July 30, 1897.) BRICKMAKER'S LIEN. One who furnishes board to employés of a brick manufacturer, under a contract with the latter, does not perform labor or furnish materials for making the brick, within Pub. St. c. 141, § 11, providing that if a person, by himself or others, perform labor or furnish materials for making brick by virtue of a contract with the owner, he shall have a lien, etc. Action of assumpsit by Mederic Perreault against Shaw & Whittemore. Heard on an agreed statement of facts. Case discharged. The defendants owned and operated a brickyard in Pembroke from April 29 to August 29, 1895. August 28, 1895, they were decreed insolvent. The plaintiff, under a contract with the defendants, boarded their workmen to the amount of $1,467.26, for which amount he claims a lien upon the brick made that season, and brings this action to enforce such lien. D. B. Donovan, for plaintiff. A. F. Burbank and Albin, Martin & Howe, for defendants. BLODGETT, J. "If a person shall, by himself or others, perform labor or furnish mate rials to the amount of fifteen dollars or more for making brick, by virtue of a contract with the owner thereof, he shall have a lien upon the kiln containing such brick for such labor or materials." Pub. St. c. 141, § 11. The legislative purpose in the enactment of this statute evidently was to protect the laborer who performs manual work in making the brick, and the person who furnishes materials which are used therefor; and such, also, is the reasonable import of the language employed, in its common and ordinary signification. Assuming the correctness of this interpretation, the plaintiff fails to make a case which entitles him to the remedial advantages of the statute. At most, the board furnished by him. contributed only in an indirect manner to the making of the brick. He neither performed labor nor furnished materials within the statutory contemplation, which limits the lien to such labor performed and materials furnished as enter into, and become a part of, the brick. See Bradford v. Lumber Co., 80 Wis. 50, 48 N. W. 1105; Williams v. Coal Co., 25 Or. 426, 431, 432, 36 Pac. 159; McCormick v. Water Co., 40 Cal. 185; Dudley v. Railway Co., 65 Mich. 655, 32 N. W. 884; Central Trust Co. v. Texas & St. L. Ry. Co., 27 Fed. 178; Gordon Hardware Co. v. San Francisco & S. R. Co. (Cal.) 22 Pac. 406. To give to the statute the elastic power claimed for it by the plaintiff would require an unnatural and strained construction, which, if carried to its logical conclusion, would extend the lien indefinitely to every one who, by virtue of a contract with the owner, contributes, however remotely, to the making of brick, by any kind of services rendered or supplies furnished to the workmen which aid them in any degree to perform the labor. The obvious result of such a construction would be interminable litigation and confusion of liens, as well as materially subversive of the general principle upon which all lien laws of this character proceed, which is that those who have directly contributed by their labor, or by furnishing materials, are entitled to a lien upon the property into which the labor and materials have gone, and to that extent added to its value. Authorities supra; Davis v. Alvord, 94 U. S. 545; 15 Am. & Eng. Enc. Law, 46, note. There is no other solid or distinct ground upon which to stand. The plaintiff has not a lien on the brick attached. Casedischarged. All concurred. Action by Charles S. Cousins against the city of Manchester to recover for services rendered as a fireman. Judgment for plaintiff. Facts agreed. In February, 1890, the plaintiff was appointed a fireman by the board of mayor and aldermen of Manchester, upon the written presentation of the board of fire engineers, as provided by the ordinances of the city, and served as such in good faith during the year next ensuing, without objection by the defendant. At the time of his appointment he was a member of the common council of the city. Burnham, Brown & Warren, for plaintiff. Edwin F. Jones, for defendant. PER CURIAM.1 Whether the board of mayor and aldermen of Manchester could legally appoint the firemen upon the presentation or nomination of the board of fire engineers, need not be decided. See Gen. Laws, c. 106, § 13; Attorney General v. Lowell, 67 N. H. —, 38 Atl. 270. If they were authorized to exercise that power, it is claimed that the plaintiff's title is defective, because it is provided in section 2, c. 48, Gen. Laws, that "no person shall be elected by the city councils, or appointed by the mayor and aldermen, to any office of profit, who at the time of such election or appointment is a member of the board of aldermen or common council." But, whatever defect there may be in his appointment, he was a fireman de facto (Jewell v. Gilbert, 64 N. H. 13, 5 Atl. 80), and the defendant has had the benefit of his services as such. If a city ordinance had enacted that carpenters and bricklayers employed in the construction of the buildings of the fire department should be appointed by the mayor and aldermen, on the written presentation of the fire engineers, and an official character had been given to their employment by the legislative power of the city and state, and the plaintiff, being a bricklayer, and a member of the common council, had been formally presented to and appointed by the mayor and aldermen to the office of bricklayer in the construction of buildings of the fire department, and in that capacity had laid brick for a year, could the city receive the benefits of his labor, and withhold his wages, because he and all other inhabitants of the city happened to be ignorant of that flaw in his official title, until it was accidentally discovered after the work was done? On what legal ground can the bricklayer's case be taken out of the operation of the rule adopted in Britton v. Turner, 6 N. H. 481, and the rule of all the books, that, when municipal or other corporations or unincorporated persons whose business is managed by an agent receive money hired, materials bought, or the benefit of labor performed, they cannot keep the benefit received, and refuse to pay for it, on account of a legal defect in the proceedings? Under what exception to that rule can the bricklayer be deprived of his wages? He has held the office de facto, and 1 See footnote, 36 Atl. 607. performed its duties. How can the service of such an officer be distinguished, so far as his right to payment therefor is concerned, from the same service rendered by a workman holding no office? It is said of a merely de facto officer, suing for compensation, that he can rely on nothing but his official title, and that a defective title is no title; that, though his acts are valid as to third persons, he cannot acquire rights based on his defective title (Dill. Mun. Corp. § 235, note; Mechem, Pub. Off. §§ 331-333); that he puts in issue his title to the office, and must stand or fall by the finding thereon (Matthews v. Copiah Co., 53 Miss. 715); that his position is like that of one who takes possession of land, claiming the title, which is in another (Mayfield v. Moore, 53 Ill. 428). These reasons apply when the plaintiff holds an office knowing that he is a usurper, and that the office belongs to another. who claims it; as in Meeham v. Board, 46 N. J. Law, 276, where the plaintiff, with full knowledge that the office belonged to one who was in possession, forcibly ejected him, and kept him out, until the plaintiff, as a trespasser and usurper, was removed by a legal judgMayfield v. Moore, supra, was assumpsit for money had and received for fees received by the defendant, and it was held that, as the action was an equitable one, the plaintiff, being entitled to money received by the defendant which in equity and good conscience belonged to the plaintiff, could recover as on a bill in equity for an account; that the defendant should account for the fees and emoluments of the office received by him, after deducting reasonable expenses in earning them, and that a different rule would have been applied if he had intruded without pretense of legal right. In McCue v. Wapello Co., 56 Iowa, 698, 10 N. W. 248, it was said: "The case of a de facto officer is not unlike that of one in possession of land without right or title. He must account to the person holding the title for the rents and profits." In that case the de facto officer was in law the deputy of the officer de jure, and might be entitled to compensation as such from the latter. But there is no similarity between the official whose office is not claimed by any other person and the occupant of land under a disputed title. Accounting for rents and profits to the landowner in the case of a disputed land title would be wholly unlike Manchester's keeping the wages earned by the plaintiff, when those wages were claimed by no other person. There is no sound distinction between service rendered by an official layer of bricks and an official extinguisher of fires. The latter is as equitably entitled to his wages as if all the property protected by him from fire had belonged to the Whatever defect there was in his ofcity. ficial title, his service as fireman does not come within any exception to the doctrine of Britton v. Turner. Judgment for the plaintiff. CHASE, J., did not sit. The others concurred. FELKER v. MOWRY et al. (Supreme Court of New Hampshire. Strafford. July 30, 1897.) MORTGAGES-SALE OF EQUITY OF REDEMPTIONPAYMENT ASSIGNMENT-MISTAKEEQUITABLE RELIEF. * 1. A mortgagee, B., was in possession, and the equity of redemption had been sold to M. on execution. The time of redemption would expire May 3d. On April 29th, the mortgagor filed a bill against B. and M. for a receiver, and for an extension of time for redemption. After a hearing, on May 2d, the justice restrained M. from transferring his interest in the lands, and sent to all of the counsel a memorandum reciting: "No occasion to extend year of redemption. ** Question of receivership can be determined upon final hearing in suit. The injunc tion issued will hold title to property in present shape." Plaintiff understood that M. would redeem, and all understood that plaintiff could redeem from the mortgage and the sale of the equi-. ty before the expiration of the time of redemption from the execution sale. May 4th, B. conveyed the premises to M. by a quitclaim deed reciting: "This release is given by reason of redemption on the part of said M., he having purchased the equity." Held, that as to M., against plaintiff, the release would be held an assignment, and not an extinguishment of the mortgage, in order to effectuate the common understanding and allow plaintiff to redeem. 2. Plaintiff was also entitled to relief as against M., on the ground of misapprehension, it being self-evident from the memorandum order that the court intended to preserve plaintiff's right to redeem as against the mortgage till the expiration of the time of redemtpion from the execution sale. Bill by one Felker against one Mowry and another to redeem mortgaged premises. Heard on facts agreed. Case discharged. November 16, 1895, the right in equity of F. M. and C. B. Wentworth to redeem certain lands in Dover from a mortgage held by the Cocheco Savings Bank, one of the defendants in this suit, was sold on execution, and the purchaser afterwards sold the same to the defendant Mowry. The bank was at that time in possession, for the purpose of foreclosure, and the time of redemption expired May 3, 1896. April 29, 1896, the Wentworths filed a bill in equity against the bank and Mowry, praying for the appointment of a receiver and an extension of time for redeeming from the mortgage. A hearing was had upon said bill before a justice of the supreme court, May 1, 1896, at which both the bank and Mowry were present or represented. The justice hearing said petition granted, May 2, 1896, a preliminary injunction against Mowry, restraining him from making transfer of his interest in said lands, and at the same time sent to counsel for both parties in the case the following memorandum: "No occasion to extend year of redemption from bank mortgage. See Pub. St. c. 233, § 26. Question of receivership can be determined upon final hearing in suit. The injunction issued will hold title to property in present shape. May 2, 1896." The Wentworths understood that Mowry would redeem from the mortgage, and that they could redeem from the mortgage and the sale of the equity at any time on or before November 16, 1896. The question whether the bank or Mowry knew that they so understood is in dispute, and, if material, the right to try it is reserved. This understanding of the Wentworths was derived from the memorandum given above, and neither that nor their understanding that Mowry would redeem was induced by anything said or done by the bank or by Mowry, except their silence. At the meeting of the bank's investment committee, May 4, 1896, it was voted to release to Mowry the bank's interest in the premises; and on the same day the bank conveyed the premises to Mowry, such conveyance being by an ordinary quitclaim deed, containing, after the description of the premises, the following clause: "This release is given by reason of redemption on the part of said Mowry, he having purchased the equity." At the September term, 1896, the Wentworths' bill was heard, and was dismissed on the ground, among others, that the mortgage was foreclosed, and that they had no interest in the property. November 16, 1896, they conveyed their interest to the plaintiff, who, on the same day, tendered the amount due under the mortgage and the sale of the equity to an agent of Mowry. If, on the admitted facts, or on such facts and proof of the bank's and Mowry's knowledge of the Wentworths' understanding, the plaintiff is entitled to redeem, the right is reserved to the defendants to try certain other questions involved in the case; otherwise, the bill is to be dismissd. W. T. Gunnison, J. Ryan, Jr., and J. S. H. J. Kivel and W. F. NaFrink, for plaintiff. son, for defendant Mowry. BLODGETT, J. The justice of the case manifestly requires that the conveyance by the bank to the defendant Mowry of its interest in the mortgaged premises should, as between him and the plaintiff, be treated as a redemption of the mortgage by Mowry for the purpose of protecting and preserving the interest previously acquired by him through the execution sale; and, in addition, the agreed facts sufficiently show that such was the understanding and intention of the defendants themselves at the time the conveyance was made. No reason has been given, and we think none can be, why this understanding and intention may not properly be effectuated, for "equity will give effect to the real intentions of the parties, as gathered from the objects of the instrument and the circumstances of the case, although the instrument may be drawn up in a very inartificial and untechnical manner" (1 Story, Eq. Jur., 12th Ed., § 168); and payment of a mortgage debt by one having an interest to protect, although accompanied by a release from the mortgagee, will operate as an assignment, and not as an extinguishment, of |