ive in cases like the present, and that com- moved in. The court found that the prem- | defeat. We think it was meant to be effectises were the homestead of defendants. That finding is supported, and the homestead is constituted, if there be evidence that defendants occupied the premises as a homestead when the alleged lien accrued. I think that there was such evidence. A portion of the building was of logs. These would naturally be used before the class of material furnished by plaintiff. There was evidence that defendants built a small temporary house on the ground after they commenced the building, and that they lived in that temporary structure. It is not contrary to the evidence that defendants were living on the premises in this temporary structure after they commenced the building, after the log work had been done, and when the plaintiff's material was being supplied. This case bears some resemblance to that of Reske v. Reske, 51 Mich. 541, 16 N. W. Rep. 895, decided by Mr. Justice Cooley. The closing language of that opinion is so much in point that I give it entire: "The question now is whether, on the facts recited, the lot had become a 'homestead' in a legal sense before the levy was made upon it. We are of opinion it had. The lot, as has been said, was procured for the purposes of a home, and complainant, aided by the industry and frugality of his wife, was proceeding to make it such as rapidly as their limited means would permit. They inclosed it; they had their domestic animals upon it; they came to live in the immediate vicinity; they made a well; and they put up outbuildings. Everything but the dwelling proper had been erected before the levy was made, and the complainant was bargaining with a builder for a house. If anything was lacking to make the lot a homestead, it was because the poverty of complainant had precluded his advancing his improvements as rapidly as he desired. The lot, however, in the minds and hearts of complainant and his wife, had been appropriated as a home from before the day of their marriage; it was all the home they had; it represented all their scanty means, and was the center of their domestic hopes and aspirations. They did not as yet sleep upon it or take their meals upon it; and probably, if they had done this in some of the buildings already constructed, their right to claim a homestead would not have been disputed. But this is not an indispensable condition. The man who buys a home which is all ready for occupancy cannot have it taken from him, as he is attempting to move in his goods, because he has not yet eaten or slept within it. Any one might be deprived of a homestead if so narrow a construction of the privilege should prevail. It is people like this complainant and his wife, with very limited means, that the law encourages with its promise to save their home to them if they will but secure one; and it would be a deceptive promise if it were only made on conditions which any creditor might so easily v.34P.no.1-3 without visible acts, to occupy premises as a homestead, would not impress them with that character. As was said in Solary v. Hewlett, 18 Fla. 760: "In this case there is no evidence, save the allegation in the answer, that the appellee intended to repair and reside on the premises. He had taken no steps, had done no act, to impress it with the character of a homestead, although he owned it several months before contracting the debt upon which the judgment was found. His intentions cannot avail him under these circumstances." But in the case at bar it is deduced from the testimony, and not at all unreasonable so to consider, that the defendants were actually upon the ground, in their temporary board house, when plaintiff's material was furnished, and there was present the visible intention to occupy, and the persevering preparation, and the immediate occupation of the building, even before it was fully completed. These facts, I am of opinion, the lower court was justified in concluding brought the case at bar within the doctrine of the cases above cited, and from which I have made the foregoing quotations. Bona fide homesteads must be protected under the law, and, on the other hand, homestead claims must not be allowed to be made the instrument of fraud. I think the bona fides of defendants in this case is sufficiently manifest. It may be that it is a hardship upon plaintiff. He may not have security upon the building into which his material went. But he was not required to furnish the material, and it is not to every class of creditors that the law gives this special statutory security of lien. And this brings me to the consideration of the second point in the case. Section 323, Code Civil Proc., provides that the homestead exemption shall not affect any "laborers' or mechanics' liens." A homestead is thus not exempt from the lien of a laborer or mechanic. Appellant contends that in the exception the term "laborer or mechanic" is generic, and is intended to include all material men or lumbermen, as plaintiff is in this case. Section 1370, Comp. St., gives a lien to certain classes of persons, and describes them as "every mechanic, builder, lumberman, artisan, laborer, or other person or persons, association or partnership or corporation, that shall do or perform any work or labor upon, or furnish any material, machinery or fixture for, any building," etc. This list of lienors includes mechanics and laborers, and also lumbermen, and general material men, as persons are called who furnish material. Section 322, Code Civil Proc., exempts the homestead from forced sale on execution, or any other final process from a court. If the statute of exemptions had stopped here, it is plain that all persons named in section 1370 as lienors would be deprived of any enforceable lien against a homestead. But section 323 follows, and makes an exception to the homestead ex emption, and specifically names the excepted classes of persons as "mechanics and laborers." It does not in terms except all classes of lienors named in section 1370, but selects two of those classes, and names them. If the intent was to let into a lien on a homestead all lienors named in section 1370, the statute would have said so. When it expressly selects two classes only, namely, laborers and mechanics, and designates them by name, and omits to name all other persons in whose company mechanics and laborers are found, in section 1370, the omission is certainly significant, and renders applicable the maxim "expressio unius," etc. It is quite true that every man who furnishes material, is also, in one point of view, furnishing labor, for every finished product includes the raw material and the labor placed upon it, and, as a rule, the labor in the finished product is of much more value than the raw material. This may be observed universally. The lumberman sells boards. The greatest value in the boards is the labor placed upon them. The quarryman sells building stones. The original cost of the material was almost nothing. The value of the finished block is almost wholly in the labor. The capitalist sells the use of money, which money represents labor. But · when we deal in the wares of the lumberman, the quarryman, or the capitalist, we do not call those wares "labor," nor do we call the dealers in those wares "laborers." Therefore it does not seem to me to be the simplest and plainest construction of the statute to make the words "laborer or mechanic" include a material furnisher, because the material supplied by that furnisher is the result of labor. I am of opinion, therefore, that the words "mechanics and laborers," in section 323, are not generic, as appellant urges, and would not include material men and lumbermen. This view has been held in California. Richards v. Shear, 70 Cal. 187, 11 Pac. Rep. 607; Walsh v. McMenomy, 74 Cal. 356, 16 Pac. Rep. 17. I quote as follows from 70 Cal. and 11 Pac. Rep.: "It is said for the appellants that it was not the intent of the legislature to subject the homestead to execution or forced sale in satisfaction of judgments obtained on debts secured by liens of mechanics and laborers who perform manual labor in and about the building, and withhold such privilege from the men who furnish materials therefor. We can see great force in the suggestion of Mr. Thompson, in his work on Homesteads and Exemptions, (section 312.) that there is no difference in principle be tween a debt due to A., who has provided me with the land upon which I have erected my building, and a debt due to B., who has furnished the materials to build it, and a debt due to C., whose labor has built it. But where the legislature has undertaken to deal with the subject, and has declared from what the homestead shall be exempt, and with what it shall be charged, it only remains for the courts to give effect to its provisions. Admittedly, the language of the section of the Code specifying in what instances the homestead shall be subject to execution and forced sale does not include the liens of material men. The language is in satisfaction of judgments 'on debts secured by mechanics', laborers', or vendors' liens upon the premises.' The chapter of the Code of Civil Procedure which provides for liens of the nature claimed by the plaintiffs is headed 'Liens of Mechanics and Others upon Real Property,' and gives to 'mechanics, material men, contractors, subcontractors, artisans, architects, machinists, builders, miners, and all persons and laborers, of every class, performing labor upon or furnishing materials to be used in the construction, * * a lien,' etc. Code Civil Proc. § 1183." I do not observe any marked distinction between the California statute and our own, nor can I agree that section 328 of our Code of Civil Procedure helps the contention that a pure material man may enforce a lien against a homestead. Section 323, Code Civil Proc., provides that this homestead exemption shall not affect a laborer's or mechanic's lien. I think we all concede that the enforceability of the laborer's and mechanic's lien is intended to be saved by this section, even granting that my construction of the words "laborer" and "mechanic" is correct, and that those terms are not generic, so as to include all material men. Now, it is further suggested that the enforceability of liens, including material men's, (such as plaintiff herein,) is saved by the proviso of section 328, which is as follows: "Provided, that this act shall not be construed as to in any manner relate to judgments or decrees rendered on the foreclosure of mortgages, either equitable or legal." The construction of this proviso, as held by part of this court, makes the words "mortgage, either equitable or legal," in section 328, to include material men's liens. I cannot satisfy myself that such inclusion was intended. A mortgage is an incumbrance placed upon property by the acts of the parties, either expressly so intended by the parties or so construed by a court of equity. On the other hand, the mechanic's or laborer's or material man's lien is given by virtue of an express statute. A mortgage is given by the debtor, voluntarily, either expressly or by construction of equity. A mechanic's or laborer's or material man's lien is secured against the debtor without his consent. A mortgage has the characteristic of a lien, in that it is a security upon property. A mechanic's lien is also a security on property, but it is not obtained by the voluntary act of the debtor. A mortgage is a lien, and something more. 1 Jones, Liens, §§ 2, 11. I quote from those sections as follows: "The word 'lien' is here used in its legal and technical sense. Much confusion has arisen from using the word in a loose manner, at one time in its technical sense, and at another in its popular sense. It is often convenient and proper to speak of the lien of a mortgage or of the lien of a pledge. Of course, it will often happen, when the word is used in this sense, that the description of the lien shows that the word is used merely to denote the charge or incumbrance of a mortgage, pledge, attachment, or judgment." Section 2. “A mortgage is sometimes inaccurately called a lien. 'And so it is,' says Mr. Justice Story, 'and something more; it is a transfer of the property itself as security for the debt. This must be admitted to be true at law; and it is equally true in equity, for in this respect equity follows the law. It does not consider the estate of the mortgagee as defeated and reduced to a mere lien, but it treats it as a trust estate, and, according to the intention of the parties, as a qualified estate and security. When the debt is discharged, there is a resulting trust for the mortgagor. It is therefore only in a loose and general sense that it is sometimes called a lien, and then only by way of contrast to an estate absolute and indefeasible.' Conard v. Insurance Co., 1 Pet. 386, 441." Section 11. I think that the intent of the proviso of section 328 was to treat of mortgages, as the language says, and not of the material men's liens, which are not mentioned in terms, and which it is not necessary to include in the word "mortgage." In this view, the proviso of section 328 looks to the saving of a security created by the act of the party, namely, a mortgage. This seems wholly just. It is right that the debtor should not be relieved from a security which he had voluntarily created. But when the statute makes this sort of a declaration, I do not understand that we must also hold that, by the same language by which it retains the security of the voluntary mortgage, it also intended to retain the security of the involuntary mechanic's lien, which operates against the debtor in invitum, which was the creature of the statute, and not of the debtor. The appellant cites us to Windmill Co. v. Shay, 32 Neb. 19, 48 N. W. Rep. 896, as holding a view contrary to that which I entertain. All that is said in that case is as follows: "Section 3, c. 36, Comp. St., provides that the homestead is subject to execution of forced sale in satisfaction of judgments obtained-First, on debts secured by mechanics', laborers', or vendors' liens upon the premises; second, on debts secured by mortgages upon the premises, executed and acknowledged by both husband and wife or an unmarried claimant.' This section makes the homestead liable for a mechanic's lien." The matter is thus disposed of by the Nebraska court in one line of the opinion. Whatever good reasons that court had for its view are not disclosed by the without visible acts, to occupy premises as a | emption, and specifically names And this brings me to the consideration of the second point in the case. Section 323, Code Civil Proc., provides that the homestead exemption shall not affect any "laborers' or mechanics' liens." A homestead is thus not exempt from the lien of a laborer or mechanic. Appellant contends that in the exception the term "laborer or mechanic" is generic, and is intended to include all material men or lumbermen, as plaintiff is in this case. Section 1370, Comp. St., gives a lien to certain classes of persons, and describes them as "every mechanic, builder, lumberman, artisan, laborer, or other person or persons, association or partnership or corporation, that shall do or perform any work or labor upon, or furnish any material, machinery or fixture for, any building," etc. This list of lienors includes mechanics and laborers, and also lumbermen, and general material men, as persons are called who furnish material. Section 322, Code Civil Proc., exempts the homestead from forced sale on execution, or any other final process from a court. If the statute of exemptions had stopped here, it is plain that all persons named in section 1370 as lienors would be deprived of any enforceable lien against a homestead. But section 323 follows, and makes an exception to the homestead ex F. C. Park, for appellant. Arthur J. Shores, for respondent. PEMBERTON, C. J. This is a suit for damages for personal injuries. The appellant, who was plaintiff below, alleges in his complaint that he is a skilled carpenter; that on March 5, 1891, he was employed by respondent to work on its mill at Great Falls; that on the 20th day of March, 1891, while engaged at work handling heavy plank on the third story of respondent's said mill, he fell to the floor below, breaking his leg; that his fall, by which he was so injured, was caused by the incompetency, lack of skill and knowledge, of one Harlander, a colaborer who was engaged in assisting him in his work; that defendant knew of the incompetency of the said Harlander, and appellant did not. The complaint further alleges that defendant employed, as it was bound to do under its contract with appellant, surgeons to treat his broken limb; that these surgeons so carelessly and unskillfully treated his leg, and were so negligent in nursing and caring for appellant during his sickness, that it became and was necessary to amputate the leg of appellant in order to save his life; that the want of skill and ability of said surgeons was known to the respondent at the time, and unknown to appellant; that defendant was guilty of negligence in the employment of said unskillful laborer to assist appellant in his work on said building, and in the employment of unskillful and negligent surgeons to treat and nurse him. The appellant testified to the fact of his falling, how it occurred, and the result. He attributes his fall to the incompetency of Harlander. As to the manner of his treatment by the surgeons and nurses, his evidence is unreliable, as he admits that a great part of the time he was unconscious. Besides, his testimony does not show any knowledge of these matters. He was manifestly not supported by the testimony of his other witnesses as to the material facts in his evidence. Harlander, the man appellant says was assisting him at the time he fell, and to whose incompetency appellant attributes his fall and injury, swears he was not helping appellant at the time he fell and was injured; that the appellant was working alone at that time. H. L. Smith, another witness for appellant, testified as follows: "I talked with him [appellant] about this fall. He said he slipped and fell, and said nobody was to blame for it but himself." The appellant testified that at the time he fell he was using a pevee in handling and moving the planks. Beecher, a witness for appellant, testified that he was a carpenter, at work on the same building with appellant at the time he fell; that appellant was using a pevee; that he considered it safer wor ing where appellant was without a pev and that the superintendent had given |