Pa. 609 (33 Atl. Rep. 702). Where the complaint alleges a contract with two defendants jointly, and the proof shows a contract by one of them only there is a fatal variance. Gar. rison v. Hawkins Lum. Co., 111 Ala. 308 (20 So. Rep. 427). Where a lien statement is for materials alleged to have been furnished between certain specified dates proof that certain items charged therein were furnished prior to the first date does not constitute a material variance. Allen v. Elwert, 29 Ore. 428 (44 Pac. Rep. 823). Construction of particular evidence as to when certain material was delivered. Forest Grove Door & Lumber Co. v. McPherson. Or. (46 Pac. Rep. 884). Particular fact case in which the evidence was held insufficient to support a claim for a lien. Rass v. Sebastian, 160 Ill. 602 (43 N. E. Rep. 708). Particular evidence held sufficient to sustain a verdict. March v. Morgan, 18 Mont. 19 (44 Pac. Rep. 85).

Sec. 543. Enforcement of lien- Marshalling securities-Rights of holder of mortgage. Where two lots are subject to the same mortgage and after the erection of a building on one of them has progressed to a point where the persons erecting it have a right to a mechanic's lien, the holder of the mortgage releases it as to the lot upon which no buildings are being erected and a third person takes a mortgage on such lot, all parties to the transaction having full knowledge of the facts, it is held, in a subsequent action to enforce the mechanic's lien, that under the doctrine of marshalling securities, the mortgagee must be held to have made. the release at a sacrifice of her own security, and not of the existing equities of those who had furnished the material and made the improvements. The lien claimants are entitled to occupy the position they would have held if no release had been made. Gore v. Royse, 56 Kan. 771 (44 Pac. Rep 1053). Where, in an action to foreclose a mechanic's lien on a particular tract of land, the owner thereof and one who holds a mortgage thereon, which includes several other tracts, were made parties but the mortgagor does not appear, the mortgagee cannot by filing a cross complaint, no other notice being given to the mortgagor, have the foreclosure of his mortgage as to the land not affected by the mechanic's

lien, for the reason that the provision of the mechanic's lien law for filing, instead of serving, pleadings, apply only to issues tendered by the complaint, or expressly authorized by the statute, and not to pleadings in the nature of cross bills, setting up matters outside of and foreign to such issues. Jewett v. Iowa Land Co., 64 Minn. 531 (67 N. W. Rep. 639; 58 Am. St. Rep. 555).

Sec. 544. Enforcement of lien-Miscellaneous notes. A debt secured by a mechanic's lien made of record need not be presented to an administrator for an allowance or rejection. S. Dak. Comp. Laws, § 5790, applied. Fish v. De Laray, 8 S. Dak. 320 (66 N. W. Rep. 465; 59 Am. St. Rep. 704). Plaintiff may withdraw at the trial a part of his claim for lien if in doing so he does not vitiate the effect of the demand on which he desires then to proceed. Ettner v. Hughes, 133 Mo. 679 (34 S. W. Rep. 1110). Several actions by different parties to enforce liens against the same property may be consolidated, Springer v. Kroeschell, 161 Ill. 358 (43 N. E. Rep. 1081); and so may suits to foreclose several mechanic's liens and mortgages, some of which affect the entire tract and others subdivisions thereof, Van Lear v. Kansas Trip-Hammer Brick Works, 56 Kan. 545 (43 Pac. Rep. 1134). In New Jersey the jurisdiction over mechanic's lien cases is vested in the circuit courts. Coles v. First Baptist Church, 59 N. J. L. 311 (35 Atl. Rep. 907). In construing N. Y. Laws, 1885, ch. 312, 7, which provides that one having a claim for a lien may enforce it "by a civil action in a court of record in the city or county where the property is situated, which would have jurisdiction to render a judgment in an action founded upon a contract, for a sum equal to the amount of the lien," it is held that the jurisdiction of a county court in such cases is not affected by the fact that the defendant does not reside in the county. Raven v. Smith, 148 N. Y. 415 (43 N. E. Rep. 63). A court foreclosing a mechanic's lien cannot order a sale of property in the custody of a receiver appointed by another court. Premier Steel Co. v. McElwaine-Richards Co., 144 Ind. 614 (43 N. E. Rep. 876). Under N. C. Code, § 218, subd. 4, service by publication may be made in the proceedings to enforce a mechanic's lien, and where there has been such a

service a sale in such proceedings will not pass title to any part of the premises not covered by the lien. Bernhardt v. Brown, 118 N. C. 700 (24 S. E. Rep. 527; 36 L. R. A. 402). Under the statute of Tennessee one seeking to enforce a mechanic's lien must show a levy and attachment on the property on which the lien is claimed within a year from accrual of the right to the lien; but where such attachment has been properly issued and levied by the lien claimant he is not required to issue and levy another attachment upon his filing an amended bill bringing in new parties. Ragon v. Howard, 97 Tenn. 334 (37 S. W. Rep. 136). Where one is made a party to answer as to his interest which is alleged to be inferior to plaintiff's claim, and he fails to assert any superior title, he is concluded by a general judgment in favor of the plaintiff. Southard v. Smith, 8 S. Dak. 230 (66 N. W. Rep. 316). A finding of the court that one of the parties claimed a lien upon two of the three lots upon which the building was erected will not be deemed to be controlling where it appears from the record beyond any doubt that a lien was claimed upon the entire premises. Higley v. Ringle, 57 Kan. 222 (45 Pac. Rep. 619). A judgment foreclosing a mechanic's lien which directs the sheriff to sell the property and out of the proceeds to pay the claimants a certain sum and also specified sums as their attorney's fees and costs, and that he "bring the surplus money, if any, into court to abide its further order," is not open to the objection that it is unintelligible and incapable of execution. Neihaus v. Morgan, Cal. (45 Pac. Rep. 255). Wis. Rev. Stat., § 3323, applied-jury trial. Bartlett v. Clough, 94 Wis. 196 (68 N. W. Rep. 875).

Miscellaneous notes.

Sec. 545. A loan company which requires contemplated improvements on the property given as security to be made comformably to plans submitted with application for the loan, does not, by using part of the loan to discharge a mortgage paramount to the liens of all parties concerned, become liable to the holders of mechanics' liens created by reason of such improvements. Rogers v. Central Loan & T. Co., 49 Neb. 676 (68 N. W. Rep. 1048). Property may be subjected to a mechanic's lien for work done or materials furnished although there be no personal liability

on the part of the owner to pay therefor. Davis & Rankin Bldg & Mfg Co. v. Vice, 15 Ind. App. 117 (43 N. E. Rep. 889). One who conveys to another the legal title to property under a contract contemplating the erection of certain buildings, cannot in a subsequent action brought by him to cancel such conveyance for fraud, claim the property free from mechanics' liens duly acquired on account of the erection of such buildings, but he is not liable to personal judgment for the amount due the lienholder. West v. Badger Lumber Co., 56 Kan. 287 (43 Pac. Rep. 239).

notes-Construction

of

Sec. 546. Miscellaneous statutes. Cal. Code Civ. Proc., § 1184, construed-effect of failure of building contract to provide for the retention by the owner of at least twenty-five per cent. of the contract price until thirty-five days after the completion of the work. Stimson Mill Co. v. Riley, Cal. (42 Pac. Rep. 1072). Cal. Code Civ. Prac., §§ 1183, 1184, applied-particular facts held insufficient to constitute one an "original contractor." John A. Roebling's Sons Co. v. Humboldt Elec. L. & P. Co., 112 Cal. 288 (44 Pac. Rep. 568). Cal. Code Civ. Proc., § 1183, applied-particular facts held sufficient to make a superintendent of mining property the agent of the owner thereof so as to give a lien for machinery purchased by him. Donohoe v. Trinity Consol. Gold & S. Min. Co., 113 Cal. 119 (45 Pac. Rep. 259). Ga. Acts 1891, Vol. 1, p. 233, was not repealed by Acts 1893, p. 34. R. C. Wilder's Sons Co. v. Walker, 98 Ga. 508 (25 S. E. Rep. 571). Ky. Stat., § 2479, construed and applied-enforcement of mechanic's lien against property of a married woman. Webster v. Tattershall, Ky. (36 S. W. Rep. 1126). Mass. Pub. Stat., ch. 191, §§ 42, 43, construed-bond for release of property from liens. Landers v. Adams, 165 Mass. 415 (43 N. E. Rep. 119). Mass. Pub. Stat., ch. 191, § 1, applied. Wahlstrom v. Trulson, 165 Mass. 429 (43 N. E. Rep. 183). Miss. Code, § 2682, construed and applied-agricultural laborer's lien on crops-priority and enforcement. Powell v. Smith, 71 Miss. 142 (20 So. Rep. 872). When a building is erected under a contract with the owner of the land it is erected by

the owner within the meaning of N. J. Revision, p. 668. Atlantic Coast Brewing Co. v. Donnelly, 59 N. J. L. 48 (35 Atl. Rep. 647). Tenn. Acts 1891, p. 215, ch. 98, appliedlien of laborers on railroad. Bladen v. Marietta & N. G. R. Co., 97 Tenn. 392 (37 S. W. Rep. 135).

MINES.

EPITOME OF CASES.

Sec. 547. Constitutionality of statute regulating mining operations. Construing and applying W. Va. Code, ch 79, § 7, which provides that "no owner or tenant of any land containing coal shall open or sink, or dig, excavate or work in any coal mine or shaft, on such land, within five feet of the line dividing said land from that of another person or persons, without the consent, in writing, of every person interested in, or having title to, such adjoining lands in possession, reversion, or remainder, or of the guardians of any such persons as may be infants. If any person shall violate this section, he shall forfeit five hundred dollars to any person injured thereby who may sue for the same," it is held that the statute is constitutional; that the term "injury" means the wrong done the party by the violation of the statuto; and the penalty may be recovered by the person injured in an action of trespass on the case. Mapel v. John, 42 W. Va. 30 (24 S. E. Rep. 608; 57 Am. St. Rep. 839). Upon the constitutionality of the statute the court say: "The state claims to reserve the exclusive regulation of its own internal government and police, and such power is properly exercised by the legislature. Is this statute a reasonable exercise of the police power? (1) It is intended to secure private right by enforcing the correlative duty of so using your own land as not to injure that of your neighbor. (2) To preserve dividing lines and underground landmarks, and thus avoid uncertainty and confusion of boundaries in coal lands and the disquieting of titles.

See chapter 60 on fences, and § 27 of chapter 145.