suit thereon in this court for the foreclosure | torily secured. And in case such evidence thereof.

1904, that being the date when the city counsel notified the city auditor that all his requirements had been met, this being based upon the complainant's construction of the provisions of the Stewart & Abbot contract above recited, and such construction being that no valid assignment of the Stewart & Abbot fund could be made without the consent of the city.

power of drawing upon the city treasury for money to pay what was earned thereunder. Surely a notice to this board would be notice to the city, but the defendants may go further. The resolution was approved by the mayor, who is the chief executive officer of the city, and knowledge communicated to him in the performance of one of his official acts, would undoubtedly be notice to the city.

ment and the lien created by the statutory provisions of the municipalities lien law. Although created by different proceedings, the character of the charge upon the property in the hands of the debtor is the same. While I do not think that notice to the city was essential to the validity of the assignment, yet, if such notice were necessary, knowledge of all the facts must be implied From the foregoing facts I conclude (1) from the resolution of the board of street that the assignment took effect from the and water commissioners of November 17, date of its execution and delivery; (2) that 1904. That board was a party to the Stewno notice to the city was necessary to con- art & Abbot contract jointly with the city stitute the assignment a valid transfer of the of Newark, and by the law of its creation fund; (3) that the lien claimants are not (Act March 28, 1891; P. L. p. 249) became in the position of bona fide purchasers with- the executive board having supervision of out notice for value, and do not take priori- the performance of the contract and the ty over the assignment; (4) that the consent of the city to the assignment was not necessary to give it force and validity. The authorities for these propositions are as follows: In Board of Education v. Duparquet, 50 N. J. Eq. 234, 24 Atl. 922, the facts were similar to those in this case. There the contest was between an assignee of a fund arising out of a building contract and divers creditors of the contractor. The assignment was made in February, 1887. The lienors claimed under an attachment issued out of the Monmouth circuit court in March of the same year. Vice Chancellor Pitney discusses the question of the priorities at length and with great learning, and decides that the assignment which was prior in point of execution and delivery took precedence over the latter attachment; that notice thereof to the debtor was not necessary to its validity, and that the attaching creditor did not occupy the position of a bona fide purchaser without notice; and that he had no better title than the debtor himself had. This case was mentioned with approval by the Court of Errors and Appeals in Miller v. Stockton, 64 N. J. Law, 614, 46 Atl. 619; and again in Cogan v. Conover Manufacturing Company, 69 N. J. Eq. 809, 64 Atl. 973, 115 Am. St. Rep. 629, and may, therefore, be taken as an expression of the law of this state. The same doctrine was previously announced by Vice Chancellor Green in Bank of Harlem v. Bayonne, 48 N. J. Eq. 246, 21 Atl. 478. In fact, the rule was announced by this court in an opinion by Chancellor Vroom in 1834 in King v. Berry, 3 N. J. Eq. 44, and by Chancellor Green sitting as ordinary in 1864 in the case of Kennedy v. Parke, 17 N. J. Eq. 415. The office of notice of assignment to the debtor or depositary is discussed by Mr. Justice Lippincott in Miller v. Stockton, supra. The conclusion reached is not singular. We find the same rule in Pennsylvania (Noble v. Thompson Oil Company, 79 Pa. 354. 21 Am. Rep. 66); in New York (Williams v. Ingersoll, 89 N. Y. 508); and in Massachusetts (Thayer v. Daniels, 113 Mass. 129). There appears to be no distinction on principle or in the authorities between the lien

Nor do I think that the consent of the city was necessary to effectuate the transfer. The consent of the city was obtained by a very formal proceeding, viz., the passage of a resolution by the board of street and water commissioners and its approval by the mayor. This was supposed to be necessary in view of the provisions herein above quoted from the Stewart & Abbot contract. It has, however, been held in many cases in this state that provisions of that character are inserted in contracts not for the benefit of the contractor, subcontractors, or materialmen, but for the protection of the city. Vice Chancellor Van Fleet so held in Shannon v. Hoboken, 37 N. J. Eq. 123, affirmed 37 N. J. Eq. 318, and also in Essex Freeholders v. Lindsley, 41 N. J. Eq. 189, 3 Atl. 391. In Bank v. Bayonne, supra, it was expressly held that a provision of that character did not invalidate an assignment of the money earned under the contract. In Burnett v. Jersey City, 31 N. J. Eq. 341, the restrictive words were the same as those in the contract under discussion. In this case the city of Newark by the use of the paragraph referred to assumed no obligation. It did not agree that it would protect the subcontractors or materialmen. There is no duty cast upon the municipality in favor of any person. It was not a contract for the benefit of any one upon which an action at law could have been brought. The protection of the municipality was all that was contemplated.

The subcontract between Stewart & Abbot and Seme contains this provision: "It is also expressly understood that this present contract is made with full knowledge of both the parties hereto with reference to said contract between Stewart & Abbot and the city of Newark, and that a copy of said

presented to said Seme, and that he has read the same and fully understands all the requirements thereof, and that each and every of the terms and provisions of said lastmentioned contract so far as applicable to the work herein contemplated shall apply to and control this contract, except where provision is otherwise made in this agreement." It was urged on the part of the complain

ant that by these words all the terms of the Stewart & Abbot contract so far as they were applicable to the Seme contract were imported into the Seme contract, and became part thereof, and that thereby Seme's creditors obtained a footing which they otherwise might not have had. I am not able to perceive that the connection between these contracts in any way affects the status of either debtor or creditor. Whatever design may have actuated the parties in making the Stewart & Abbot contract a part of the Seme contract is not disclosed, but certainly the city of Newark, the debtor, was not a party to the Seme contract, and its rights are not affected by any provision contained

in it.

These views lead to a decree in favor of the assignees Alexander M. Stewart and James C. Stewart, but, inasmuch as the complainant filed its claim and prosecuted it in ignorance of the assignment, costs will be allowed only after the filing of the answer.

WYMAN v. NEWLAND. (Supreme Judicial Court of Maine. March 5, 1909.)

1. COURTS ($ 190*)-MUNICIPAL COURTS-APPEAL-RECOGNIZANCE-TIME FOR MAKING.

In relation to appeals in civil actions in inferior courts, Rev. St. 1903, c. 85, §§ 17, 18, provide as follows:

"Sec. 17. Any party aggrieved by the judgment of the justice, may appeal to the next supreme judicial or superior court in the same county, and may enter such appeal at any time within twenty-four hours after the judgment, Sunday not included; and in that case no execution shall issue, and the case shall be entered and determined in the appellate court.

"Sec. 18. Before such appeal is allowed, the appellant shall recognize with sufficient surety or sureties to the adverse party, if required by him, in a reasonable sum, with condition to prosecute his appeal with effect, and pay all costs arising after the appeal."

Held, that the appeal must be entered within 24 hours after judgment.

[Ed. Note. For other cases, see Justices of the Peace, Cent. Dig. §§ 521-523; Dec. Dig. § 156.*] 5. JUSTICES OF THE PEACE (§ 159*)—APPEALRECOGNIZANCE.

If the adverse party requires the appellant he may request the trial court to fix a day on to recognize "with sufficient surety or sureties," or before which the recognizance shall be filed. [Ed. Note.-For other cases, see Justices of the Peace, Cent. Dig. § 558; Dec. Dig. § 159.*] 6. APPEAL PROPERLY TAKEN AND ALLOWED.

Where the municipal court of Portland, Cumberland county, rendered judgment for the plaintiff October 1, 1907, and the defendant within 24 hours after judgment appealed to the superior court in said county at its next term to be held in November, 1907, and sureties were refurnished October 3, 1907, and copies of the recquired by the plaintiff and which sureties were ords and all the papers filed in the cause were entered of record in said superior court at said filed a motion to dismiss on the ground that the November term, and at said term the plaintiff appeal was not entered and allowed in the municipal court within 24 hours after judgment, it was held that the appeal was properly taken and allowed in the municipal court, and that the superior court had jurisdiction of the case. . (Official.)

Exceptions from Superior Court, Cumberland County.

Action in the municipal court of Portland by Olive E. Wyman against Edward E. Newland. There was a judgment for plaintiff, and defendant appealed to the superior court, where the appeal was dismissed, and defendant excepts. Exceptions sustained.

Action of assumpsit originally commenced in the municipal court for the city of Portland, where a hearing was had on October 1, 1907, and judgment rendered for the plaintiff, from which judgment on the same the defendant claimed an appeal to the superior court of the county of Cumberland at the term next to be held on the first Tuesday of November, 1907. Special sureties having been required by the plaintiff, the defendant entered into a recognizance with sureties to prosecute his appeal with effect, and pay all costs that might be rendered against him arising after the appeal. nished October 3, 1907. ords and all the papers filed in the cause were entered of record in the superior court at the said November term. On the 16th day of December, 1907, the plaintiff filed a mo[Ed. Note. For other cases, see Justices of tion to dismiss on the ground that the appeal the Peace, Cent. Dig. § 524; Dec. Dig. § 155.*] of the action from the municipal court, where 3. JUSTICES OF THE PEACE (§ 159*)-APPEAL-it was first entered and tried, was not enterRECOGNIZANCE-NECESSITY. It is not necessary for the appellant to "rec-ed and allowed within 24 hours after judg ognize with sufficient surety or sureties" unless ment, in accordance with the provisions of

[Ed. Note.-For other cases, see Courts, Dec. Dig. § 190.*]

2. JUSTICES OF THE PEACE (§ 155*)-APPEALTIME FOR APPELLATE ACTS.

To enter the appeal means to claim it or notify the clerk, if there be a clerk, that an appeal is desired, and is the only appellate act which must be done within the 24 hours.

Sureties were fur

Copies of the rec

the statute, and that the action, therefore, | quire, of the court having jurisdiction within was not within the jurisdiction of the supe- said county, by appeal from the justices of rior court. The motion was sustained, and the peace; and such appeal shall be taken the appeal dismissed by the justice of the su- and prosecuted in the same manner as from perior court, to which ruling the defendant a sentence or judgment of a justice of the excepted. peace."

The case is stated in the opinion.
Argued before EMERY, C. J., and WHITE-
HOUSE, SAVAGE, PEABODY, SPEAR, and
BIRD, JJ.

Frank H. Haskell, for plaintiff. Dennis
A. Meaher, for defendant.

PEABODY, J. This was an action of assumpsit originally commenced in the municipal court for the city of Portland where a hearing was had on October 1, 1907, and judgment rendered for the plaintiff, from which judgment on the same day the defendant claimed an appeal to the superior court of the county of Cumberland at the term next to be held on the first Tuesday of November, 1907. Special sureties having been required by the plaintiff, the defendant entered into a recognizance with sureties to prosecute his appeal with effect and pay all costs that might be rendered against him arising after this appeal. Sureties were furnished October 3, 1907. Copies of the records and all the papers filed in the cause were entered of record in the superior court

at the November term.

On the 16th day of December, 1907, the plaintiff filed a motion to dismiss on the ground that the appeal of the action from the municipal court, where it was first entered and tried, was not entered and allowed within 24 hours after judgment, in accordance with the provisions of statute, and that the action is not within the jurisdiction of the superior court.

The motion was sustained, and the appeal dismissed by the justice of the superior court, to which ruling the defendant excepted.

The appellant claimed his appeal within 24 hours after judgment, but the record shows that he did not furnish a recognizance with sureties within that time.

The question to be decided is whether the recognizance on such an appeal must be made within 24 hours after judgment. Such security is only necessary when required by the adverse party, and, if he does not request it, the appeal is perfected without. Colby v. Sawyer, Appellant, 76 Me. 545.

There is no express limitation in the statute to the time for furnishing the recognizance, nor is there any limit within which the adverse party may require it. We do not think that any should be implied from the statute which only limits the time for entering the appeal. Such a construction would violate the rule against injustice and unreason where the statutory requirement of security is only upon request of the appellee. Endlich on Int. Stat. 245. It would enable the appellee by delaying his request until the last minute to prevent the appellant from furnishing recognizance in time to complete his appeal. If it is held that the recognizance must be filed within 24 hours, the provision making it dependent upon the request of the adverse party is useless. The appellant must anticipate the request and furnish recognizance when not intended by the statute.

He would be presumed to know the provision of a statute requiring his action within a time limited and of right could act at the latest moment, but his right would be impaired if delayed by the adverse party's failure to act, while the appellee is protected in every case, as the appeal will not be allowed Section 17, c. 85, Rev. St. 1903, provides until the recognizance is furnished, if he rethat: "Any person aggrieved by the judg-quires it, and he may request the trial court ment of the justice may appeal to the next supreme judicial or superior court in the same county, and may enter such appeal at any time within twenty-four hours after judgment, Sunday not included; and in that case no execution shall issue, and the case shall be entered and determined by the appellate court."

Section 18 provides that: "Before such an appeal is allowed, the appellant shall recognize with sufficient surety or sureties to the adverse party, if required by him, in a reasonable sum with a condition to prosecute his appeal with effect and pay all costs arising after the appeal."

Section 6, c. 204, p. 234, Pub. Laws 1856, establishing the municipal court for the city of Portland, provides that: "Any person may appeal from a sentence, or judgment against him to the then next term, for civil

to fix a day on or before which it shall be filed. 1 Ency. Pl. & Pr. 986, 987.

The cases upon which the appellee relies present similarities to the case at bar, but all differ from it in an essential point-the statutes upon which they are based require a recognizance as a prerequisite to the completion of the appeal, while the Maine statute requires it only upon the contingency that the adverse party requests it.

It is also argued in behalf of the appellee that the entry of an appeal includes its allowance. While this might be so under some circumstances, we think it is not the meaning within the legal interpretation of section 17, c. 85; but to enter the appeal means to claim it or to notify the clerk that an appeal is desired, and is the only appellate act which must be done within 24 hours. The allow ance of the appeal is a judicial act which