statute, was to be paid for by an extra per diem com

tion upon the hours of labor, and referring the control of their time, beyond those hours, to the persons employed, to confer a benefit upon the classes protected, and afford them in the employment of their leisure time an opportunity for physical and intellectual im. provement which they had not previously enjoyed; but it did not make labor beyond the statutory time, if performed with their consent, illegal, or require compensation to be made therefor unless it was provided for in the contract of employment. It was no part of the design of the act, and indeed it would be contrary to its avowed object and intent to so construe it as to authorize two statutory days' labor to be crowded into one calendar day, or to give the price of two for one calendar day's labor, as that would operate to the manifest social detriment of the classes intended to be benefited. Any construction which should hold out to the laborer extraordinary inducements to prolong his hours of labor and to shorten those of rest and recreation would directly conflict with the spirit and meaning of this legislation and the benefits intended to be furnished by it. Its plain and obvious intent was to place the control of the hours of labor within the discretion of the employee and give him the privilege at his option of declining to work beyond the time fixed by the statute, or if he did so work, to authorize him to secure extra compensation for extra work by stipulating for it, in the contract of employment. In the absence of any special provision in such a contract, as to the number of hours constituting a day's labor, the act would be held to apply and fix them at eight hours.

with a knowledge and understanding of the custom of the department of public works requiring ten hours labor in each calendar day's employment, and that his services as a scowman were to be rendered mainly upon the water, which made the duration of the hours of labor necessarily depend, to a certain extent, upon the action of the wind and tide, causes which would often prolong those hours beyond the control of either party to the contract.

A practical and apparently iusuperable obstacle is thus presented to the termination of the hours of labor at any fixed and arbitrary period.

In the absence of evidence to the contrary, it must be presumed that the plaintiff entered into the contract with knowledge of the established usages of the employment, and the exigencies of the services in which he engaged, and that the contract price was intended to be graduated to compensate him for the excess of time which those usages and exigences might require him to render in excess of the hours specified by the statute. It is quite obvious that this was his understanding of the contract, as appears by his subsequent conduct. During the whole period of two years' employment he applied for his wages at regular periods of two weeks, and was paid at each of such periods at the rate of $2.50 per calendar day without objection on his part or claim for extra compensation. At each of these semi-weekly periods he executed receipts to the department of public works purporting to be in full for his wages up to the date of the receipt. No claim was made by him for extra wages until about three years after the date of the last payment, and no adequate reason is rendered for this delay in the presentation of the claim now urged. Under these circumstances the court below have

The language of the act does not authorize any inference that it was intended to confer the right upon persons employed to charge for more than one day's labor for the services rendered in any calendar day; but on the contrary such an inference is plainly repelled by the express provision authorizing extra compensation for overwork when the agreement provides for it.

By settled rules of construction this provision must be held to mean that neither extra labor can be required, uor extra compensation demanded, except in the case of an agreement therefor previously made by the parties.

So when the exigencies of his employment, or the requirements of his employer, call upon the laborer for a greater number of hours of labor than those specified in the statute, it is optional with him, either to refuse to perform them, or to insist, as the condition of their performance, upon the payment of extra compensation for the extra work; but in the absence of such an agreement, the provisions of the act do not authorize a demand for the extra compensation.

There is of course no foundation in this case for a claim that any such agreement has been made, and in fact none is put forward by the appellant.

If it should be held under this statute, as it doubtless may, that such an agreement might be implied from circumstances, those existing in this case do not tend to raise such an implication, but on the contrary, quite conclusively tend to repel it.

It seems quite clear that it could not have been within the contemplation of either of the parties to this contract that the labor rendered by the plaintiff in each calendar day, beyond the time fixed by the

dered by the plaintiff or received by the defendant with the expectation or understanding on the part of either party that they were to be paid for by extra compensation; and that no promise for their payment can be implied from the circumstances. We think this finding was justified by the evidence, and cannot be disturbed.

The general rule by which a promise to pay for services is implied from the circumstances of the case does not afford any assistance to the appellant in this

case.

Such an implication arises only when the services are rendered under circumstances authorizing an expectation of compensation therefor, or the inference that they would not otherwise have been rendered. Livingston v. Ackeston, 5 Cow. 531; Williams v. Hutchinson, 3 N. Y. 312; Griffin v. Potter, 14 Wend. 209.

The distinction between an express and an implied contract is that the first is proved by an actual agreement and the other by circumstances and the course of dealing between the parties. Hill. on Cont. (1st ed.) 54; Add. on Cont. 22.

The course of dealing between these parties shows conclusively that the whole compensation intended to be paid for the services in question was actually paid at regular intervals of two weeks each.

The particular question arising under a statute limiting the number of hours constituting a day's work, when a laborer has served more than the number of statutory hours has frequently been the subject of investigation in the tribunals of the United and neighboring States, and the result, under statutes more favorable to the claims of the laborer than those of this State, has uniformly been against the implication of a promise for the payment of such labor. United States v. Martin, 4 Otto, 403; Luske v. Hotchkiss, 37 Conu. 219; Brooks v. Cotton, 48 N. H. 50.

this

In United States v. Martin, under the act of Congress of June 25, 1868, being section 3738 of the Revised Statutes, which provided that "eight hours shall constitute a day's work for all laborers, workmen and mechanics now employed, or who may hereafter be employed, by or on behalf of the government of the United States," it was held that law did not make a contract between the government and its laborers by which eight hours constituted a day's work, and that it did not prevent the govern ment from making agreements with them by which their labor might be more or less than eight hours a day, nor does it prescribe the amount of compensation for that or any other number of hours' labor.

In Brooks v. Cotton it was held, under a statute which provided "that in all contracts for or relating to labor, ten hours of actual labor shall be taken to be a day's work unless otherwise agreed by the parties;" that if work is done through the season at a certain agreed price per day, and the work done from time to time in a day is done and accepted without objection as a day's work, an agreement may be implied that the work done in a day, whether on an average more or less than ten hours, shall be reckoned and paid for as a day's work. It will be observed in this case that the work had not been paid for, and that circumstances did not therefore furnish any evidence upon the question. Under the statute of Connecticut of 1866, which provided that "eight hours work done and performed in any one day shall be deemed a lawful day's work unless otherwise agreed by the parties," it was held in Luske v. Hotchkiss that the only effect of the statute is to release the laborer from work and entitle him to his day's wages at the end of eight hours, and that if he works more than eight hours a day, unless by special request or agreement, he cannot claim additional compensation for such additional work.

These authorities seem quite decisive of the question presented by this appeal. We think that there was no evidence in the case from which a jury would have been authorized to imply a contract upon the part of the defendant to pay for the labor claimed, and that therefore the court below were justified in deciding the question as they did.

NOTES

TRUST-BANK AND DEPOSITOR-FRAUD-RECEIVER OF BANK-ORDER REQUIRING HIM TO PAY COSTS.-The Rochester City Bank having discounted certain notes for a firm which was a depositor with it, and that firm, wishing to anticipate payment, gave to the bank its checks for the amount of the notes less rebate of interest, which checks the bank received and charged in the firm account, and entries were made in the bank books to the effect that the notes were paid. The firm at the time supposed that the bank held the notes, but they had in fact been previously sold by the bank. Before the notes became due the bank failed, and in an action, brought by the attorney-general in the name of the people, a receiver was appointed of its property and effects. Held, that an order requiring the receiver to pay the notes out of the funds in his hands was properly granted; that the transaction between the bank and said firm was not in their relation of debtor and creditor, nor in that of bank and dedepositor, but by it a trust was created, the violation of which constituted a fraud by which the bank could not profit, and to the benefit of which the receiver was not entitled. Libby v. Hopkins, 104 I. S. 303; In re LeBlanc, 14 Hun, 8: affirmed 75 N. Y. 598. Those cases stand upon the ground of a specific appropriation

of a particular fund for the payment of the claim there brought in question. So does the one at bar. That fact is lacking in the case of People v. Merchants and Mechanics' Bank, 78 N. Y. 269; 34 Am. Rep. 532, on which the appellant relies; and this distinction is pointed out by the learned judge who delivered the opinion in that case. Counsel for the appellant contends "that there never was any fund set apart for a particular object, or any intention or purpose to set apart such a fund." I do not regard this, if true, as of much importance, but the appeal papers do not permit us to accept such construction. The checks of the petitioners were money assets in the hands of the bank and were so treated by all parties; they were delivered to it with explicit directions to apply the proceeds on payment of the notes; those directions were assented to by the bank officer, and the checks collected from the general fund. From that moment the bank was bound to hold the money for and apply it to that purpose, and no other, or failing to do so, return it to the petitioner. As to it, the bank was bailee or trustee, but never owner. It is estopped from saying that all this is matter of book-keeping. It assumed a duty, and the receiver as its representative is bound by it. Nor does this obligation at all depend, as the appellant seems to suppose, upon the question, when, where, and to whom the notes were to be paid; whether presently or in the future is immaterial. The specific object for which the fund was created was the payment of the notes, and its character does not depend upon those incidental circumstances. The checks were impressed with a trust, and no change of them into any other shape could divest it so as to give the bank or its receiver any different or more valid claim in respect to them than the bank had before the conversion. Van Alen v. Am. Nat. Bank, 52 N. Y. 1; Dows v. Kidder, 84 id. 121. (2) The application of the petitioners to the court below was not a motion under section 768 of the Code, but a special proceeding for the enforcement or protection of a right under section 3334; costs might therefore be awarded in the discretion of the court, as on appeal from a judgment taken to it. Section 3240. People v. City Bank of Rochester. Opinion by Danforth, J. [Decided April 29, 1884.]

BROKER-SEAT IN STOCK EXCHANGE-LIABLE FOR DEBTS, U. S. R. S., § 5104-JURISDICTION OF STATE COURT.-There can be no doubt that a seat or membership in the New York Stock Exchange is in a certain sense property. It has great value to the owner or possessor, and may under the conditions prescribed in the Constitution and by-laws, be transferred and transmitted and converted into money. Grocers' Bank v. Murphy, 60 How. Pr. 426; Ritterband v. Baggett, 4 Abb. N. C. 67; Powell v. Waldron, 89 N. Y. 328; 42 Am. Rep. 301; In re Ketcham, N. Y. Daily Reg., Feb. 9, 1880; Elliot v. Mer. Ex. of St. Louis, 28 Alb. L. J. 512; In the Matter of Werder, id. 176; In re Gallaher, 19 N. B. R. 224; Hyde v. Woods, 94 U. S, 523. The question as to the character of the property of such a seat is so fully discussed in the authorities cited that nothing more is necessary to be added. But the property in the seat, whatever it was, as between the defendant, Jones, and the plaintiff, passed by the assignment in bankruptcy, and as between them vested in the plaintiff as fully as it was before possessed by the defendant. By that assignment the defendant was as fully and completely divested of his property in the seat or membership as he could be by any paper or instrument which he could execute; and he could do nothing more to vest complete, perfect title as against himself in the plaintiff. United States Rev. Stat., § 5104, provides that "the bankrupt shall, at all times, until he is discharged, be subject to the

order of the court, and shall, at the expense of the estate, execute all proper writings and instruments, and do all acts required by the court touching the assigned property or estate, and to enable the assignee to demand, recover and receive all the property and estate assigned wherever situated." That section conferred ample authority upon the bankrupt court until the discharge of the bankrupt; but that authority ceases after the discharge by the very terms of the section. And so it has been held in numerous cases. In re Jones, 6 B. R. 386; Cook v. Whipple, 9 id. 155; In re Dean, 3 N. B. R. 188. After the discharge of the bankrupt and while the discharge is in force, the bankrupt court has no more jurisdiction over him than over any other person. He can be compelled to act then, not summarily by motion or order under section 5104, or any other section of the Bankrupt Act, but simply in some regular judicial proceeding as a party thereto or as a witness therein. There is no question that a State court would have jurisdiction of such an action as this at the proper time, when sufficient facts shall exist which will require the exercise of its jurisdiction. Ward v. Jenkins, 10 Metc. 583; Stevens v. Mechanics' Savings Bank, 101 Mass. 109; 3 Am. Rep. 325; Cook v. Whipple, 55 N. Y. 150; 14 Am. Rep. 202. Platt v. Jones. Opinion by Earl, J. (See 47 Am. Rep. -note.)

[Decided April 29, 1884.]

CORPORATION-DISSOLUTION-ACT 1874, CH. 324-REFUSING TO MAKE REPORTS.-Defendant, by his charter, is authorized "to establish a public exchange and mart for receiving deposits of and transferring earnest moneys, stocks, bonds and other securities * * * and for the procurement and making of loans on the same * * * guaranteeing the payment of bonds and other obligations." Held, that it was a 64 loan, mortgage, security, guaranty or indemnity company," and a corporation "having the power and receiving money on deposit" within the meaning of the act of 1874 (§ 1, ch. 324, Laws of 1874), requiring every such corporation to make a report semi-annually to the superintendent of the banking department; and that upon its refusal to make such reports, an action was properly brought by the attorney-general to dissolve the corporation. If this had been exclusively a deposit company, or a loan company, or a guarantee company, or a mortgage security company, thus confined to one kind of business, it could not be doubted that it would come within the act of 1874; but the fact that its powers are so general, it being allowed to do all these various kinds of business, certainly cannot take it out of the operation of the act. It is within the policy, and we think within the letter of the law, and hence the disposition made of the case by the court below was right; and its judgment should be affirmed, with costs. People v. Mut. Trust Co. Opinion by Earl,

J.

[Decided April 29, 1884.]

UNITED STATES CIRCUIT COURT ABSTRACT.*

CONTRACT-ATTORNEY EXAMINING TITLE-WANT OF PRIVITY NO LIABILITY TO THIRD PERSON FOR NEGLIGENCE.-A. applied to a money lender for a loan of $3,000, and offered his note therefor, secured by a mortgage on certain real property; B., the attorney of the money lender, examined the title to the real property and furnished the latter a certificate to the effect that A.'s title was good and the property unincumbered, and thereupon the loan was made on the terms proposed; subsequently and before the maturity of *Appearing in 20 Federal Reporter.

the note it was assigned to the plaintiff, who foreclosed the mortgage and sold the property, when it was found that it was incumbered by a prior mortgage, so that the plaintiff did not realize the amount of his debt by $4,794.35. Held; that there was no privity of contract between B. and the plaintiff, and that he was not liable to the latter for the loss. This question has been decided by the Supreme Court in Savings Bank v. Ward, 100 U. S. 195. The case was this: A., an attorney employed by B. to examine and report on the title of the latter to a certain lot of ground, certified that it was "good," upon which certificate B. procured a loan from C., and gave a mortgage on the property as security. It turned out that B. had parted with the title to the property prior to the date of the certificate-a fact that in the exercise of reasonable care might have been learned from the records. The security having proved worthless, and B. being insolvent, C. lost his money, and brought suit against A. for damages. The court held in the language of the syllabus, "that there being neither fraud, collusion, nor falsehood by A., nor privity of contract between him and C., he is not liable to the latter for any loss sustained by reason of the certificate." The ruling is also maintained in Houseman v. Girard M. B. & L. Ass'n, 81 Penn. St. 256, in which it was held that the recorder of deeds is liable in damages for a false certificate of title, only to the party who employs him to make the search, and not his assignee or alienee. And in Winterbottom v. Wright, 10 Mees. & W. (Exch.) 109, it was held that although the maker of a carriage is liable to the person for whom he makes it, for any loss or injury arising directly from negligence in its construction, that he was not so liable to any third person who might use the same, for the reason that there was no privity of contract between them. Cir. Ct., D. Oregon, April 25, 1884. Dundee, etc., Investment Co. v. Hughes. Opinion by Deady, J.

PATENT TO ONE PARTNER-DISSOLUTION-RIGHT TO USE.-During the existence of a partnership between two persons one of them invented a machine upon which a patent was granted to him. The firm paid the fees and costs of procuring the patent and the expenses of an experimental trial of the invention and also the expenses of some litigation which ensued. It appeared however that all the outlay of the firm was more than repaid by the benefits arising from the free use of the patented machine in the partnership business. Held, that upon these facts no implied liceuse arises to the member of the firm not the inventor to

make, use, and vend the patented machine after the dissolution of the partnership. In McWilliams Manfg. Co. v. Blundell, 11 Fed. Rep. 419, upon a substantially similar state of facts, it was held that the firm could make no claim to the patent, and after dissolution, an injunction to restrain infringement issued against the late partner. Our conclusion finds support in adjudged cases. Brickill v. Mayor, etc., of New York, 7 Fed. Rep. 479: Wade v. Metcalf, 16 id. 130. Nor does this view conflict with the decisions cited by the defendants. In the nature of the case (the invention being a process) the presumed license in McClurg v. Kingsland, 1 How. 202, was unlimited, and justly so under the circumstances. In Chabot v. American Buttonhole, etc., Co., 6 Fish. 71, the facts were not only substantially similar to those in McClurg v. Kingsland, but there was the additional element of an express contract, the terms of which greatly strengthened the presumption of an unrestricted license. The subject matter of the patent in Slemmer's Appeal, 58 Penn. St. 155, was a process, which if legally the invention of one partner, was in fact the result of partnership labor, experiment, and development, and the dealings of the partners with each other had been of such a char

acter that it would have been grossly inequitable to deny to any of them the right to use the invention. In Kenny's Patent Button-holing Co. v. Somervell, 38 L. T. Rep. 878, the partnership was formed for the sole purpose of working the patented invention, and had been conducted for several years, during which time the partner whom it was attempted arbitrarily to enjoin had aided in perfecting the invention and invested his capital in the business. Cir. Ct., W. D. Penn., March 20, 1884. Keller v. Stolzenbach. Opinion by Acheson, J.

TION

CONSTITUTIONAL LAW-EMINENT DOMAIN-DIMINUOF WATER-POWER NOT A "TAKING"-CONSEQUENTIAL DAMAGE-LANDS DAMAGED OUTSIDE OF STATE.-Remote and consequential damage, such as the diminution of water-power, accruing to land from improvements to the navigation of the water-ways of a State authorized by the Legislature thereof, do not amount to a "taking" within the meaning of the Constitution, and the Legislature is empowered to authorize such improvements without reference to such consequential damage to land within the State; but the Legislature has no power to cause such damage to the owners of land in other States. "Acts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be a taking within the meaning of the constitutional provision. They do not entitle the owner of such property to compensation from the State or its agents, or give him any right of action. This is supported by an immense weight of authority. * * * We have examined the decisions of the courts of Illi nois, and others to which we have been referred by the plaintiffs in error, but in none of them was it decided that a riparian owner on a navigable stream, or that an adjoiner on a public highway, can maintain a suit at common law against public agents to recover consequential damages resulting from obstructing a stream or highway in pursuance of legislative authority, unless that authority has been transcended, or unless there was a wanton injury inflicted, or carelessness, negligence, or want of skill in causing the obstruction." Transp. Co. v. Chicago, 99 U. S. 635. In this case the injury will be caused to property beyond the limits of Connecticut, and the question arises whether the doctrine which has been asserted is applicable to this state of facts. This question has never, so far as I can ascertain, been decided by the courts of this country. The question has arisen, whether by virtue of the right of eminent domain, one State can take or subject to public use land in another State, and the decisions have naturally been against such a power. Farnum v. Canal Corp., 1 Sumn. 46; Salisbury Mills v. Forsaith, 57 N. H. 124; Wooster v. Great Falls, etc., Co., 39 Me. 246; United States v. Ames, 1 Wood. & M. 76. In two cases which have recently arisen in Federal courts, and which involved the right of a State to regulate or to improve the navigation of a river wholly within its limits, the judges have carefully limited their decisions to the facts in the cases, Escanaba Co. v. Chicago, 107 U. S. 678; 2 Sup. Ct. Rep. 185; Huse v. Glover, 15 Fed. Rep. 296. Important suggestions which bear upon the question in this case are made by Judge Treat in Rutz v. St Louis, 7 Fed. Rep. 438, and by Mr. Justice McLeau in Palmer v. Com'rs Cuyahoga Co., 3 McLean, 226. See McKeen v. Delaware Div. Cau. Co., 49 Penn. St. 424. Cir. Ct., D. Conn., April 23, 1884. Holyoke Water-Power Co. v. Conn. River Co. Opinion by Shipman, J.

MARYLAND COURT OF APPEALS ABSTRACT.*

TRUST-APPLICATION OF PURCHASE-MONEY-WHEN PURCHASER NOT BOUND TO SEE TO.-Where a wife is authorized and empowered by the will of her husband, to sell and convey the real estate situate in the city of Baltimore, of which he died seised, and to invest the proceeds in productive property in the city or county of St. Louis, in the State of Missouri, a purchaser from the widow of a part of said property is not bound to see to the application of the purchase-money. In the case of Wormley v. Wormley, 8 Wheat. 442, Judge Story says: "Where the trust is defined in its object, and the purchase-money is to be re-invested upon trusts which require time and discretion, or the acts of sale and re-investment are manifestly contemplated to be at a distance from each other, the purchaser shall not be bound to look to the application of the purchase-money; for the trustee is clothed with a discretion in the management of the trust fund, and if any persous are to suffer by his misconduct, it should be rather those who have reposed confidence, than those who have bought under an apparently authorized act." The case just cited seems to be directly in point. In the case now under consideration the sale was effected in Baltimore, and the trustee must seek for property located either in the city or county of St. Louis, where a re-investment is directed to be made. The execution of the power requires the exercise of a wide discretion, involves the consumption of much time, and presents to the purchaser the very serious obstacle of distance between the place of sale and that of re-investment. It is unnecessary to multiply the citations of authorities, because the very recent case of Van Bokkelen v. Tinges and Sargeant, trustees, 58 Md. 57, seems to determine the question. In that case the court, adopting the language of the notes to Elliott v. Merryman, 1 White & Tudor's Lead. Cases in Eq., 118, 119, said: "All the cases seem to agree, that where the disposition of the proceeds depends in any material particular, upon the discretion of the trustee, or where an interval must or may properly elapse between the sale and the application of the purchase-money, the purchaser will be freed from liability by a payment to the trustee, and will not be responsible for a subsequent misappropriation by the latter." And it is further added "that where a trustee is required to sell and re-invest for the same trusts or purposes, the purchaser will be discharged from responsibility for the application of the money paid by him to the trustee." Keister v. Scott. Opinion by Yellott, J.

FICERS-SUPERSEDED.-Where money is deposited in bank by a board of examiners, as such-in their official relation-and they are superseded in office by the appointment of a new board, the money so deposited belongs not to the former board but to the latter, and is subject to their check. In Lewis v. The Park Bank, 42 N. Y. 463, Platt, the chamberlain of New York city, deposited the funds of the city in the Park Bank; Devlin was appointed his successor, who designated the Broadway Bank as his depository, and upon a mandamus the Park Bank was required to pay to the Broadway Bank the money thus deposited by Platt. The court decided, it is true, that the Broadway Bank was not entitled to recover damages alleged to in paying over the fund, because it had no interest in have been sustained by the delay of the Park Bank the fund until it had been deposited; and until this

was done the relation of debtor and creditor did not exist. Aud so in Swartwout v. Mechanics Bank of New York, 5 Denio, 555, where the plaintiff, collector *Appearing in 61 Maryland Reports.