so the court hold in the case on which we are commenting. But when a gaslight company makes such an increased issue of stock, and swaps an amount of it of the par value of $373,000 for "wild lands," it is a case that deserves looking into; and although the Pennsylvania court may not, in the case as presented, have had the power to deal with it, it is to be regretted that an opinion was not written, or a statement of facts furnished, which places the decision of the court upon some intelligent basis.

AGENCY-THIRD PERSON PURCHASING PROPERTY OF AGENT WHEN LIABLE FOR CONVERSION.-In Kohn v. Washer, lately before the Supreme Court of Texas, it appeared that a wholesale clothing-house in Chicago, employed a commercial traveller at a salary and commission, to visit retail houses throughout the country and solicit orders for their goods. They sent him out an assortment of coats, one hundred and ninety in number, valued by them in the aggregate at $1,425, to be exhibited by him as samples to retail dealers. He sold this lot of goods to a house in Texas for $360, representing that he was travelling for an Eastern house and had authority to sell the samples. Thereupon he left the country. The owners of the goods brought an action to recover their value. The trial court instructed the jury in substance that if the sale of the samples was embraced within the real or apparent scope of the agent's authority, the owners would be bound by the sale and could not recover. This instruction, while admitted to be correct in the abstract, was held to be erroneous in its application to the facts of the case. In giving the opinion of the court, Watts, J., said: "Under the circumstances, the extent of his authority was to exhibit the goods as samples and not as merchandise for sale, and no apparent authority to sell the samples would exist or arise out of the nature of the agency. It has been held that a salesman authorized to sell goods on a credit, has no authority to subsequently collect the price in the name of the principal, and a payment to him will not discharge the purchaser, unless

41 Tex. Ct. Repr., 374.

some authority to collect beyond what is implied in the mere power to make the sale is shown. In our opinion the evidence did not authorize the charge, and the evidence upon the other issues is such, that this error may have been material."

PLEADING. [EJECTMENT]-EQUITABLE DEFENSE. In Arguello v. Bours the subject of equitable defenses in actions of ejectment is thus considered by the Supreme Court of California, speaking through McKinstry, J.: "Under our system of practice, at defendant may plead, as a defense to 'ejectment,' that he is in possession under a contract of purchase, the the conditions whereof have been fully performed on his part; in other words, that he is in possession under a contract which gave him the right of possession, and that he is entitled to retain possession as against the bare, naked title of his vendor, which the vendor holds disconnected from any real interest. A perfect equity, united to the possession, is, under our system, equivalent for all purposes of defense, to a legal title. A vendee in possession under an executory contract, the conditions of which have been performed on his part, may avail himself of his equitable title as a defense to an action of ejectment brought against him by the holder of the legal title. A mere equitable title to land, if of such a character as in equity entitles the holder to the possession, is a sufficient defense to an action for the possession brought by the holder of the legal title. But whether a defendant relies upon his equities merely as a defense to the ejectment, or alleges them in a cross bill, and bases on them a prayer for equitable relief, the facts must be fully set forth in the answer, as fully as it would be necessary to allege them in the stating part of a bill in equity, praying a decree for a conveyance of the legal title.10 In Kenyon

8

5 Seiple v. Irwin, 30 Penn. St., 513; Low v. Stokes, N. J. (Law), 249.

67 W. C. Repr. 498.

7 Morrison v. Wilson, 13 Cal., 494.

8 Love v. Watkins, 40 Id., 547.

9 Willis v. Wozencraft, 22 Id., 607.

10 Miller v Fulton, 47 Cal., 146; Bruck v. Tucker, 42 [d., 346, 352; Kentfield v. Hayes, 57 Id., 411.

v. Quinn" and Cadiz v. Majors, 12 the equities of the defendant were not pleaded. The dicta in the decisions of cases where the answer consisted of mere denials, that the equitable defense should be pleaded with a prayer for affirmative relief, are not to be regarded as authoritative. In an action of 'ejectment' by a plaintiff having the legal title, the defendant may rely on a contract of purchase which gave him the right of entry, and which has been completely executed and performed on his part, together with his continued possession. But all the facts on which he relies should be averred in the answer. In view of the intimation in Bruck v. Tucker, it will always be safer to aver (as was done in this case) that the price paid was a just and fair price and the full value of the premises. Of course, under such circumstances, the defendant will usually pray for equitable relief. If, by lapse of time, or for any other reason, he may have lost his right to an equitable decree, he will still be entitled to rely on his perfect equity as a defense to an action brought to deprive him of the possession."

NUISANCE. [NOISE AND VIBRATION.] A ROLLER-COASTER OR GRAVITY RAILROAD ENJOINED AS A NUISANCE.-In Schlueter v. Bellingheimer,13 it is held by the Common Pleas of Hamilton County, Ohio, in a learned and extended opinion by Buchwalter, J., that where the proprietor of a public resort, located in an otherwise quiet neighborhood, occupied for years by dwellings, introduces extreme features of amusement, as a roller-coaster or gravity railroad, causing unusual noise, and in a substantial degree depriving others, having ordinary sensibilities, of the ordinary comforts of life, such as rest and sleep at night, peace, quiet and rest on Sunday, disturbing family conversation, etc., he creates thereby a private nuisance; that, where the proof is clear, certain, and satisfactory that he has wrongfully done these things, working a serious injury, the court will restrain him from its continuance, without the intervention of a trial by jury; and that the mere

11 41 Cal., 325.

12 33 Cal. 288.

13 14 Weekly Law Bulletin, 224.

fact that the complainants waited until after the roller-coaster was constructed and in operation would not estop them, since they did not know the character and degree of the noise, nor that it would be operated at unreasonable hours and times. The propriety of this ruling seems to be quite clear, and the learned judge found abundant authority to sustain it. In Davis v. Sawyer,14 it was held that ringing factory bells at 5.30, 6 and 6.30 A. M., to awaken hands and their boarding house keepers, was a nuisance to dwellers near by, in disturbing their rest, and the ringing of the bells at those hours was enjoined. In the St. Mark's Chimes case,15 the noise of a chime of church bells at various times of the day and night was declared a nuisance and enjoined. In Briggs v. Vattier, 16 the noise of a bowling-. alley at night was declared a nuisance to the occupant next door and enjoined. In Bishop v. Banks, 17 the bleating of calves kept by a butcher over night for slaughter, was held to be a nuisance to those dwelling near by, and relief was granted. In Frey v. Auer, 18 the noise of a goldsmith's beating factory in a quiet neighborhood was declared a nuisance. In Walker v. Brewster1 the court held that fire rockets, loud shouts of a crowd, and the music of bands in and about a music hall on grounds of public resort, was a nuisance to one dwelling on the next lot. In Inchbold v. Barrington20 the noise of a circus entertainment to continue eight weeks, at a distance of about eighty-five yards from a tenant's house, was declared a nuisance to him and was restrained. In Leete v. Pilgrim Congregational Society, not reported," a religious society was enjoined from striking the hours at night by clock machinary on a bell weighing about 3,000 pounds, in a church tower in a populous neighborhood; but the court refused to enjoin the society from maintaining a peal of bells striking the half and quarter hours in the day time, or from ringing a chime of bells to call worshippers to service at the regular hours. The subject of noise

14 133 Mass., 289.

15 3 Weekly Notes (Phila.), 384. 16 4 Weekly Notes (Phila.), 272. 17 33 Conn., 118.

18 10 Phil., 356.

19 L. R.5 Eq.

20 L. R. 4 Ch. App., 388.

21 14 Mo. App., 590 (abstract)

22

and vibration as elements of nuisance was considered at length in an article in the American Law Register about two years ago. The doctrine of private nuisance is one which escapes all rule and definition. In nearly every case the question is how much one man's comfort must yield to another man's profit, or to the general convenience, or to the public necessity; and it is quite clear that courts will more readily enjoin as private nuisances useless employments, such as games, plays and places of amusement, which work discomfort to near dwellers, than such employments as livery-stables, slaughterhouses, tanneries, and the like, which, though disagreeable, must exist somewhere and cause inconvenience to some one.

The so-called Mechanics' Lien Laws-perhaps more properly designated laws for the declaration and enforcement of liens for labor done and materials furnished for improvements upon land-are a frequent subject of construction in the courts, suggesting many questions of great interest to litigants and to the profession, among which none is of more importance than the inquiry, in limine, who are entitled to their protection. Although the lienor's right, in each instance, is held to depend upon the language of the local statutes under which he claims, and a compliance (whether strict or substantial, decisions differ,) with their provisions, yet all these laws, having the same object in view, are in their main features so nearly alike-in some instances precisely identical-that the decisions of one State may be used to advantage in any other, either as directly in point, where the statutes are like, or illustrating the principle involved where they are similar.

Mechanic's liens were unknown to the common law; they owe their existence to legislative enactment. To this day no such laws appear on the statute-books of Great Britain. The provisions of the Civil Law were more liberal, and in those countries adopting it, architects, contractors, workmen and artificers, who bestow their labor on

buildings or other works, and who furnish materials, and also those who lend money to these parties, to be expended about their work or in furnishing materials, with the owner's knowledge or at his request, have a privilege or preference for their salaries, their wages, or the money or materials they furnish. It was doubtless a familarity with the Civil Law, as well as a desire to foster the growth of towns and cities, and protect the laborers and material-men by whose aid they could be built up, that induced the framing and passage of these laws in the United States.2 The first attempt to create a mechanic's lien arose from a desire to establish and improve as speedily as possible the City of Washington, as the permanent seat of government. In response to a memorial from commissioners appointed for this purpose, the legislature of Maryland, on Dec. 19, 1791, passed an act providing for liens on the houses erected and land occupied. The next statute on the subject was passed by the legislature of Pennsylvania in 1803. These laws were subsequently amended materially, as it was ascertained from judicial construction wherein they fell short of affording the full protection intended. Some of the early laws were construed as affording no remedy to the principal contractor, but providing liens only for the mechanics and tradesmen, and this construction was supported by the argument that contractors were able to demand and obtain their own security, while the employes were often defrauded by insolvent

owners and dishonest contractors.4 These decisions induced both Congress and the legislature of Pennsylvania to amend their legislation; and the statutes in force in the States generally now give the lien clearly to the contractor, and under certain safeguards to the sub-contractor, protecting the owner from the double lien anticipated in one of the cases cited. The statutes generally declare entitled to the lien "any person to whom a debt is due for labor performed or furnished,

1 Domat's Civ. Law, § 1741 et seq., cited Phil. Mech. Liens, § § 3.

2 Phillips Mechanics' Liens, § 6. 3 Ibid, § 7.

4 Winder v. Caldwell, 14 How (U. S.), 434; Jones v. Shawan, 4 Watts and Serg. (Pa.), 257; Hoatz v. Patterson, 5 Watts & Serg. 538; Bolton v. Johns, 5 Penn. (Barr), 145.