tain description of contracts, any instrument in writing is considered a bond by the parties. lb. 3. (To convey land.). Giving a bond to one to convey land to him on the performance of certain conditions, does not disqualify the obligor from conveying the same land to another, to whom he had before given a similar bond to convey the same land. Eaton v. Emerson, 2 Shepley, 335. BUILDINGS. (On adjoining lots.) The first builder upon adjoining lots in a town is bound to use suitable materials, and build them skilfully in the foundation and wall of partition; for if upon the excavation for and construction of a house upon the adjoining lot, notwithstanding the use of proper and ordinary care and diligence, the first walls should fall in consequence of their defects, it must be regarded as damnum sine injuria. Richart v. Scott, 7 Watts, 460. CHANCERY. (Equitable mortgage.) A covenant by a debtor to pay certain debts owing by him out of a designated fund when the same shall be received by him, cannot be construed into an equitable mortgage of the fund, so as to give the creditors a specific lien thereon; such covenant is merely personal. Rogers v. Hosack's Ex'rs., 18 Wend. 319. 2. (Mistake of fact.) Courts of equity may grant relief against acts done and contracts executed under a mistake of facts. Champlin v. Laytin, 18 Wend. 407. 3. (Same.) Where relief is granted in such cases, it seems, it is extended as well to the refunding of money paid under the contract, as to the annulling of the contract. Ib. 4. (Mistake of law.) Whether relief will be granted where there is mere mistake of law, quære. Ib. 5. (Same.) Whether there be a distinction between mistake of law and ignorance of law, so that relief may be granted in the former case, when it would not be granted in the latter, quære. Ib. CONSIDERATION. (Promise to release surety.) The refusal by a plaintiff in a judgment against a principal and a surety to issue an execution upon it, at the instance of the surety, for the purpose of levying the property of the principal, is a good consideration for a promise to release the surety; and upon such promise being made, he is released; and in such case it is not necessary for the surety to be able to prove that the debt might have been made upon the execution against the principal. Bank v. Klingensmith, 7 Watts, 523. CONSTITUTIONAL LAW. (Taking of private property for public use.) Acts of the legislature, authorizing railroad companies to enter upon, take possession of, and use the lands and real estate of individuals for the construction and maintenance of their roads, as far forth as the same are indispensably necessary for that purpose, are valid and constitutional acts, provided that in and by the same acts, provision is made for the assessment and payment of the damages of the owner of the lands and real estate thus taken and appropriated. Bloodgood v. The Mohawk & Hudson Rail Road Co., 18 Wend. 9. 2. (Same.) It is enough that such provision be made; it is not necessary that the damages or compensation should be actually ascertained and paid, previous to the appropriation of the property. Ib. 3. (Same.) Where power was given to a railroad company to enter upon, take possession of, and use the lands of individuals in the construction and maintenance of their road, and the section granting the power contained a proviso that the lands so taken should be purchased by the company, and in case of disagreement as to price, that the damages of the owner should be appraised in a particular manner, it was held, in view of the constitutional prohibition to the taking of private property, without making just compensation to the owner, that the proviso above referred to must be deemed a condition precedent, and that the plea of the company put in by them, to a declaration in an action of trespass quare clausum fregit was imperfect, in not averring the assessment and payment of the damages, previous to the entry upon the land and the appropriation of the same to the use of the company. Ib. CONTRACT. (Completion of.) To render a proposed contract binding, it must be acceded to by both parties at the time. A mere voluntary compliance with its terms by one, who had not previously agreed to it, does not render the other liable to it. Johnston v. Fessler, 7 Watts, 48. 2. (With an infant.) A contract for the purchase or sale of land with an infant is necessarily executory; binding on the adult party, but liable to be affirmed or disaffirmed by the infant when he arrives at lawful age. If possession be delivered under such contract to the purchaser, and the infant, when he arrives at full age, disaffirm it, the former shall be treated as a trustee for the infant in relation to the land, and may claim to be reimbursed all charges not covered by the rents and profits. M'Ginn v. Shaeffer, 7 Watts, 412. 3. (Rescission of.) A party, having an election to rescind a contract, must rescind it wholly, or in no part; he cannot consider it void to reclaim his property, and at the same time in force for the purpose of recovering damages. Junkins v. Simpson, 2 Shepley, 364. 4. (Construction of.) Where a written contract to find materials and build a stone dam stipulated, that "it is mutually agreed between the parties, that all the work and materials shall be inspected by a third person, and made to correspond with the decision of such person in all respects, whose decision shall be final between the parties," such third person has no power to give a legal construction of what the contract requires of the parties, but merely to determine the differences, which relate to the workmanship, and to the fitness and quality of the materials proposed to be used. Mason v. Bridge, 2 Shepley, 468. 5. (Same.) Where the contract provides, that "the wall is to be laid on timber, and projected into the bank fifteen feet," and the slope of the bank, whereon it was to be built, is upon an angle of forty-five degrees, the contract is complied with by projecting the wall into the bank fifteen feet on the average. lb. 6. (Same.) If the contract states, that the dam shall be built "of the same height, thickness, and quality of work, as the old dam now standing," and the old dam had never been finished, and the front part only had been raised to the intended height; a fair construction of the contract requires, that the new dam shall be made as high as the front of the old one. ль. 7. (Same.) Where labor has been performed under a special contract, so uncertain, and unintelligible, that it cannot be understood, the law will imply a promise to pay the fair value of the service. Cobb v. Stevens, 2 Shepley, 472. 8. (Meaning of words.) When a new word is used in a contract, or when a word is used in a technical or peculiar sense, as applicable to any branch of business, or to any particular class of people, evidence of usage is admissible to explain and illustrate it, and that evidence is to be considered by the jury; and the province of the court then is, to instruct the jury what will be the legal effect of the contract, as they shall find the meaning of the word, modified or explained by the usage. Eaton v. Smith, 20 Pick. 150. 9. (Same.) But when a word having an established place in the language, is used apparently in no new, technical or peculiar sense, it is the province of the court to put a construction upon the written contract, according to the established use of language, as applied to the subject matter and modified by the whole instrument or by existing circumstances. Ib. 10. (Same.) The defendants gave the plaintiff a bond, dated in June 1835, stipulating that they would convey to him one eighth part of a tract of timber land in Maine, which he had agreed to purchase, but allowing him the right of electing to rescind his bargain, he giving notice of such election before January 1, 1836, unless a majority of the owners of the tract should sooner "determine to operate on said land next winter," in which case his right of election and giving notice was limited to fifteen days after notice by the defendants of such determination of the owners. It was held, that in the absence of evidence aliunde to affect the ordinary meaning of the terms operate on the land, it was the province of the court, and not of the jury, to put a construction upon them, and that taking the contract by itself, these terms included the selling of stumpage, (that is, selling off the timber growing, to be cut by the purchaser), as well as the cutting of the timber by the owner at his own expense. Ib. 11. (Request to assist another in business.) Where the defendant verbally requested the plaintiff to assist the defendant's son in his business, promising to indemnify him against any loss he might incur in so doing, and the plaintiff accordingly signed a note as surety, with the son as principal, which he afterwards paid, and called upon the defendant for indemnity, it was held, that the defendant's promise was not within the statute of frauds. Chapin v. Lapham, 20 Pick. 467. CONVEYANCE. (Mistake in.) A mistake in a superadded descriptive clause in a recital of title in a deed, intended for purposes of individuation only, and not to define boundaries, shall not prejudice a more particular description of the property conveyed, which it was not intended to assist. Chaplin v. Srodes, 7 Watts, 410. 2. (Description of estate in.) Where by the terms of the grant of a tract of land, a line commences at a known monument, and from thence runs in a certain course a specified distance to another monument, but which latter monument was never erected, or cannot be found, the grant is limited to the distance specified, to be ascertained by admeasurement. Heaton v. Hodges, 2 Shepley, 66. 3. (Same.) Where a grant of land is made with reference to a plan, the survey actually made at the time, if it can be ascer tained, is to govern; but if no survey was made, or if it cannot be ascertained, and no natural monuments marked on the plan upon the line exist; the extent of the line is to be settled by the length of line given on the plan, according to its scale, exactly measured. 1b. 4. (Same.) And this rule applies, although it should be found, by measuring from one monument to another, given on a different part of the plan, that large measure was made on that part. lb. 5. (Same.) Where land is granted "reserving to the grantor the use and control of the lands granted during his natural life,” the |