E ROBERT E. COWAN COLLECT! 
 
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 COMPRISING I 
 
 MECHANICS' LIEN. 
 
 COMPLAINT ON MECHANICS' LIEN- 
 
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TREATISE 
 
 ON THE 
 
 MECHANIC'S LIEN LAW, 
 
 OF CALIFORNIA. 
 
 (PASSED MARCH 30, 1868. 
 
 WITH 
 
 APPENDIX, 
 
 CONTAINING THE VARIOUS FORMS REQUIRED UNDER THE ACT, TOGETHER 
 WITH A COPY OP THE ACT, AND AN 
 
 AMPLE HSTDEX. 
 
 BY P. G. BUCHAN, 
 
 COUNSELLOR-AT-LAW. 
 
 
 
 SAN FRANCISCO: 
 
 H . H . BANCROFT &COMPANY 
 
 1868. 
 
F A.C E - 
 
 The law passed at the last session of our Legislature on the 
 subject of Mechanics' Lien has a most important effect as well 
 upon the rights of mechanics, laborers, and persons furnishing 
 materials for the construction and repairs of buildings and 
 other superstructures, as upon the rights of those owning and 
 making improvements on real estate. It has also an important 
 effect on the rights of capitalists and loan societies lending money 
 on mortgage. It is very clear, that without proper precautions, a 
 real estate owner may, through this Act, be compelled to pay a 
 much larger sum for improvements than he has contracted to pay, 
 and may even be made personally responsible on demands for 
 which he never contemplated a personal liability, while those hav- 
 ing mortgages or other equitable claims upon the land may be 
 seriously affected in their rights. The Act is a very crude and 
 inconsistent piece of legislation, and requires many amendments 
 for the benefit as well of the mechanic as the owner i-f real 
 estate. Still, it will remain the law of the land till the year 1870, 
 as no legislation is likely to be had on it till that time. It was 
 thought by the author of this brief treatise, that in the meantime a 
 work of this character, with the forms given in the appendix, might 
 be useful to the community, and that when amendments are made 
 by the next Legislature a second edition can be issued. 
 
 Most of the States have Mechanics' Lien Laws, and decisions 
 have been rendered under them in the Courts of the different 
 States where they exist. But the Lien Law of one State differs 
 
4 PREFACE. 
 
 materially from that of another. The different decisions in the 
 State Courts on the subject have more 'reference to the peculiar 
 language of the statute in the State in which the decision is made 
 than to any general principle, and a reference to such decisions 
 would tend only to confusion and verbosity. The author has 
 confined his authorities, therefore, principally to decisions ren- 
 dered by the Supreme Court of this State on former laws of a simi- 
 lar character. Those decisions, and the application of the general 
 principles of equity jurisprudence to the provisions of the Act, 
 and the peculiar cases which are likely to arise under it, will 
 enable any professional man to arrive at a tolerably correct con- 
 clusion as to all questions under the Act on which he may be 
 called upon to give his opinion. 
 
 If this little work will tend in any degree to aid in protecting 
 the rights of the Laborer and Mechanic, and at the same time 
 enable the owners of real estate to protect themselves from the 
 creation and payment of unjust claims and demands against 
 them, the object of the author will be obtained. 
 
 P. G. BUCHAN. 
 
 SAN FRANCISCO, August 1st, 1868. 
 
I S E 
 
 ON THE 
 
 MECHANICS' LIEN LAW OF CALIFORNIA, 
 
 The Act on this subject, as passed by the Legisla- 
 ture of California, on the 30th of March, 1868, is of 
 great importance to our citizens, and ought to be gen- 
 erally understood, as well by mechanics and laborers, 
 as by all engaged or interested in the erection of build- 
 ings, or superstructures of any kind. 
 
 The Act is of a very broad and comprehensive scope 
 and character. It gives every mechanic, artisan, ma- 
 chinist, builder, contractor, lumber merchant, laborer, 
 or other person performing labor upon, or furnishing 
 materials of any kind, to be used in the construction, 
 alteration or repair, either in whole or in part, of any 
 building, wharf, bridge, ditch, flume, tunnel, fence, ma- 
 chinery, railroad, wagon road, mining claim, aqueduct 
 to create hydraulic power for mining or other pur- 
 poses, or any other structure or superstructure, or who 
 shall perform labor in any mining claim, a lien upon" 
 the same for work or labor done or "materials fur- 
 nished by each respectively. 
 
 Those persons are to have a lien whether' the work 
 is done or the materials furnished, at the instance of 
 
6 TREATISE MECHANICS' LIEN LAW. 
 
 the owner of the building or other improvement, or of 
 his agent. 
 
 For the purposes of the Act, every contractor, sub- 
 contractor, architect, builder, or other person having 
 in charge the construction, alteration or repair, either 
 in whole or in part, is to be held to be the agent of the 
 owner. This, we presume, however, has reference to 
 the particular department in which the sub-contractor 
 may be employed. For instance : a sub-contractor for 
 the brick work certainly, without special authority, 
 would not be authorized to employ the plasterers, nor 
 a sub-contractor, to perform the plastering, authorized 
 to employ the painters, and yet the language of the 
 Act is broad enough to cover just such a case. Under 
 this Act, if a builder contracts to erect a building, and 
 afterward contracts with a painter to do the painting, 
 and the painter omits to pay his journeymen engaged 
 on the work, or to pay the merchant from whom he 
 has purchased the painting materials, each of his jour- 
 neymen and the paint dealer would have a right to a 
 lien on the building ; each of the journeymen for his 
 work and the paint dealer for his materials furnished, 
 entirely independent of the price agreed by the owner 
 of the land, to be paid to the builder. 
 
 The Act embraces every possible construction, im- 
 provement or repairs, and covers all those cases where 
 the Supreme Court of this State had formerly decided 
 the lien law did not reach; and lest there should be 
 any room for misconstruction as to the work, for which 
 a lien will lie under the first section of the Act, the 
 fourteenth section declares that the words " building or 
 " other improvements, whenever the same are used in 
 
TREATISE MECHANICS' LIEN LAW. 7 
 
 "this Act, shall be held to include and apply to any 
 " wharf, bridge, ditch, flume, tunnel, fence, machinery, 
 "railroad, wagon road, aqueduct to create hydraulic 
 " power, or for mining or other purposes, and all struc- 
 " tures and superstructures, whenever the same can be 
 " made applicable thereto, and the words i construc- 
 " tion, alteration or repair,' whenever the same are used 
 " therein, shall be held to include partial construction 
 " and all repairs done in and upon any building or 
 " other improvement." 
 
 By the former Act, and as decided by the Supreme 
 Court in the case of Dore vs. Sellers, 27 CaL, R. 591, 
 and also in the case of Bowen vs. Aubrey, 23 CaL, E. 
 563, the employees of a contractor could not enforce 
 their lien to an amount exceeding the sum for which 
 the contractor had a lien, which was only to the amount 
 due on his contract for the construction of the build- 
 ing. But by this Act, the employees engaged in the 
 construction by the contractor, are in no way bound 
 by the price or rate of compensation agreed upon be- 
 tween the owner of the property and the contractor he 
 has employed. It is clear, therefore, that under this 
 Act, the owner may be made to pay an amount far ex- 
 ceeding the contract price for the construction of the 
 building, and in addition to this, as will be seen after- 
 ward, he is liable for the expense of attorney and 
 counsel, in preparing each lien arid in carrying on to 
 judgment the action, which may be instituted to fore- 
 close the lien. 
 
 There are three modes of guarding against this on 
 the part of the owner. 
 
 First By taking a bond with sufficient sureties 
 
8 TEEATISE MECHANICS' LIEN LAW. 
 
 from the builder for the performance of his contract, 
 and to indemnify the owner against the creation of 
 any liens under this Act. 
 
 Second As all liens, except the original contractor's, 
 must be filed within thirty days after the completion 
 of the building, by making the payments for the work 
 to become due more than thirty days after the comple- 
 tion of the building, and making it a condition in the 
 contract precedent to payment, that no lien shall then 
 be on the land ; or 
 
 Third By a clause in the contract, that no pay- 
 ment shall be made unless the architect in charge of 
 the building, or some other person, to be selected for 
 that purpose, shall be first satisfied and shall so certify 
 to the owner that all the work done and the materials 
 furnished, have been paid for. 
 
 If, in addition to the evidence by receipts, which the 
 architect in such a case would of course require, he 
 took the contractor's statement in writing, that all the 
 workmen and material men had been paid, and it turned 
 out, in fact, after the payment to the contractor, that 
 such claims had not been paid, the contractor, under 
 the 131st section of the Act, as to u crimes and punish- 
 ments," in reference to obtaining money under false 
 pretenses, and the 376th section of the Criminal Practice 
 Act, requiring the pretense to be in writing, would be 
 liable to be indicted, if he made the statement know- 
 ingly and designedly and with intent to defraud. 
 
 Forms of contracts and of a bond, etc., in pursuance 
 of the above suggestions, will be found in the appen- 
 dix. 
 
 Where the work done consists in erecting or repair- 
 
TREATISE MECHANICS' LIEN LAW. 9 
 
 ing a building surrounded by land, the mode of making 
 the lien effectual, and its extent on the surrounding 
 land, is clearly enough pointed out by the statute ; but 
 although a lien is declared for other works, repairs and 
 improvements, besides buildings, the statute does not 
 point out upon what the lien is to be. By the second 
 section, the land upon which any building or other im- 
 provement shall be constructed, together with a con- 
 venient space about the same, " or so much as may 
 "be required for the convenient use and occupation 
 " thereof, shall be subject to the liens created by this 
 " Act." But take, for instance, the building of a fence 
 around a fifty acre lot, or the erection of abridge across 
 a stream, or the making of a wagon road, or the erec- 
 tion of a wharf, or excavating a tunnel, or erecting an 
 aqueduct to convey water to a mill or a mine, how 
 much or what interest the workman or contractor is to 
 have in the mill or mine, in the field surrounded by the 
 fence, or in the bridge or wagon road, or how that in- 
 terest or lien is to be made effectual, is not declared or 
 provided for in the Act at all. The only similar case 
 where it is provided for, and the lien defined, is in a 
 separate section in the case of a person, at the request 
 of the owner, grading, filling in, or otherwise improving 
 a lot in a city or town, or the street in front of or ad- 
 joining it. In that case, for the labor done and materials 
 furnished, a lien is, by section nine, given on the whole 
 lot. This section is nearly the same as the 21st section 
 of the Act of 1862. The Supreme Court of the United 
 States, in a recent case (Gordon vs. The South Fork 
 Canal Company), concerning a question of lien on a 
 canal or ditch leading to a mine, decided (Judge Field 
 
10 TREATISE MECHANICS' LIEN LAW. 
 
 dissenting) that the lien applied only to the part of 
 the ditch or canal made or repaired, and to nothing else. 
 The Act in this particular requires amending. The ex- 
 tent of the lien over the mill or mine, to which the 
 flume, ditch or aqueduct leads or is attached, or over 
 the franchise or tolls in case of a wagon road or bridge, 
 should be distinctly defined. 
 
 A lien is also given by section 15 of the Act on per- 
 sonal property, where the mechanic, artisan or laborer 
 alters or repairs any article of personal property at the 
 request of the owner. This is adopting the common 
 law as to a mechanic's lien for work of that character, 
 but the manner of "the mechanic's availing himself of 
 the lien by sale of the article which was not provided 
 for by the common law, is distinctly provided for in 
 that section, and of which we will speak hereafter 
 when we come to treat of the various remedies given. 
 
 We have stated above the various liens created by 
 this Act, and we will now come to the mode and man- 
 ner in which they are thereby made effectual. 
 
 The second section of the Act provides that the land 
 on which the building or improvement is erected, with 
 a space around it convenient for its use and occupation, 
 shall be subject to the lien created by the Act, if at the 
 time the work was commenced, or the materials had 
 been commenced to be furnished, it then belonged to 
 the person causing the construction of the building, im- 
 provement or repairs. If such person owned less than 
 a fee simple, then only his interest in the real estate is to 
 be subject to the lien. If the interest is a leasehold 
 interest, and the lessee shall have forfeited his right, 
 the purchaser of the building and of the leasehold 
 
TREATISE MECHANICS' LIEN LAW. 11 
 
 term, or so much thereof as remains unexpired at a sale 
 in proceedings under this lien law, shall be held to be 
 the assignee of the lease, and shall be entitled to pay 
 the lessor the arrears of rent and costs due, unless the 
 "lessor shall have regained possession or obtained judg- 
 " ment for 1 possession prior to the commencement of the 
 " construction, alteration or repair of the building" If 
 the lessee had forfeited the lease, and a judgment had 
 been obtained against him before the commencement of 
 the construction, or if the lease became forfeited and 
 the lessor had legally obtained possession before the 
 construction, it is difficult to perceive that the lessee 
 had any interest in the land or building at the com- 
 mencement of the construction or repair; yet the 
 Act goes on to say: "In which, event said purchaser 
 " shall have the right only to remove the building 
 " within thirty days after he shall have purchased the 
 " sa ne, and the owner of the land shall receive the rent 
 "due him, payable out of the proceeds of the sale 
 " according to the terms of the lease down to the time 
 " of such removal." 
 
 It is very questionable whether, so far as leases in 
 existence at the time of this Act going into operation 
 are concerned, those provisions are constitutional, where 
 they conflict' with or alter the terms of the lease. Sup- 
 pose that a lease, in existence before the Act went into 
 effect, provided that in the event of the non-payment 
 of the rent, at the time conditioned for its payment, 
 the lease should become void and the term end, or that 
 at the termination of the lease, either by the expira- 
 tion of the term or by forfeiture, all buildings or im- 
 provements erected or made by the tenant should be- 
 
12 TREATISE MECHANICS' LIEN LAW 
 
 come the property of the landlord, can the Legislature 
 afterwards entirely change that contract, and not only 
 give the legal assignee of the lease, under this Act, more 
 rights than the lessee, but take from the lessor property, 
 the right to which had vested in him by solemn con 
 tract, made before any such Act was passed ? The six- 
 teenth section of Article 1st of the Constitution of 
 this State, provides that " no ex post facto law, or law 
 "impairing the obligation of contracts, shall ever be 
 " passed," and the Supreme Court of this State have 
 given effect to this section in Smith v. Morse, 2 CaL, 
 R 524; Thorn, v. Hayes, 4 CaL, R. 127; Tallant v. 
 Woods, 7 CaL, R. 579 ; Skinner v. Bucli, 29 CaL, R. 
 253. Again: suppose the building is the landlord's, 
 and the improvements are made on it by the tenant, 
 under a lease made before this Act took effect ; could 
 the lien-holder sell and the purchaser remove the land- 
 lord's building and pay him his rent with the proceeds 
 of his (the landlord's) own property ? This would be 
 not only manifestly illegal and unjust, but absurd. 
 
 In reference to leases made subsequent to the passage 
 of the Act, there is probably no question. Where the 
 lessee has any interest at the time of the commence- 
 ment of the improvement, the building becomes liable, 
 and the purchaser, at the lien sale, is entitled to pay 
 the lessor the arrears of rent, and the lessor is bound 
 to receive them. But suppose the purchaser removes 
 the building, as he has a right to do by section 3, what 
 is to become of the building, a part of which, or the 
 whole of it, may be the landlord's, after the lease has 
 expired ? It is a part of the leased property. Who is 
 to be at the expense of removing it back ? It may be 
 
TEEATISE MECHANICS' LIEN LAW. 13 
 
 removed by the purchaser miles from its original loca- 
 tion on the leased land. If the purchaser has a right 
 to move it one foot, he has a right to move it one mile, 
 and it may be utterly destroyed in the attempt to re- 
 place it. Suppose that the lease contains a covenant? 
 that at the end of the term the lessee is to leave the 
 premises in as good condition as at the commencement 
 of the term; in what position does it place the purchas- 
 er and the landlord ? The Act makes the purchaser of 
 the building "the assignee of the leasehold term." 
 The assignee of a lease is personally liable on all the 
 covenants in the lease running with the land binding 
 on the original lessee as long as he remains assignee or 
 retains possession, so that it would appear that the 
 purchaser is not only personally liable for the rent re- 
 served in the lease, but to damages for the non-fulfilment 
 of all such covenants contained in it, such as the cov- 
 enants to repair, pay rent, taxes or assessments, etc. 
 In short, he takes it subject to all the equities existing 
 between the lessor and lessee. See Taylors landlord 
 and tenant, Sec. 437. 
 
 As to the assignee of a lease, however, our Supreme 
 Court has decided in Johnson v. Sherman, 15 Cal., 
 287, that " an assignee of a lease may discharge him- 
 " self from all liability under the covenants in the lease 
 " by assigning over ; and the assignment may be to a 
 " beggar or a femme covert, even though a premium is 
 " given as an inducement to accept the transfer." So 
 that a purchaser of premises under this lien law, though 
 declared by the Act to be assignee of the lease by 
 reason of his becoming such purchaser, may rid himself 
 of his liability in the same manner as the defendant in 
 the case of Johnson v. Sherman. 
 
14 TEEATISE MECHANICS' 'LIEN LAW. 
 
 On the subject of liens on leased property, the Act 
 is full of crudities, absurdities and contradictions, and 
 perhaps those provisions will never be taken advantage 
 of, and it may be that no question upon them, under 
 this Act, will ever arise. It is probable that no at- 
 tempt will be made to enforce a lien in reference to 
 leased property, except in cases of a long and valua- 
 ble lease, and where it is an object for the purchaser to 
 assume the performance of the covenants in the lease, 
 and where the leased property consists of a single build- 
 ing. The second section provides for a lien on the 
 building erected, repaired or improved upon, whether 
 held by lease or otherwise, and so much space around 
 as may be required for its convenient use. The build- 
 ing improved upon or repaired may be only one of two 
 or more buildings erected on the leased land. The 
 purchaser under the lien Act is to become the assignee 
 of the lease. He must become the assignee of the 
 whole lease and not of a part. There is no provision 
 in the Act to the contrary. Two tenants cannot be 
 forced on the landlord. There is, besides, no provision 
 for an apportionment of the rent or a segregation or 
 division of the leased premises provided for by the Act. 
 Indeed, in reference to leased land, except so far as we 
 have already indicated, there seems an utter want of 
 legislation to carry the Act into effect, or render it in- 
 telligible. 
 
 All liens created by the Act, are, by section three, 
 to be preferred to any lien, mortgage, or other incuni- 
 brance which may have attached subsequent to the com- 
 mencement of the building or improvement, or the 
 commencement of furnishing materials ; and also to all 
 
TEE ATISE* MECHANICS' LIEN LAW. 15 
 
 unrecorded incumbrances, though existing before such 
 commencement. Under the old Act, an unrecorded 
 mortgage had priority. (Rose v. Munie, 4 Cal., K. 
 173.) 
 
 But then follows the following somewhat ambiguous 
 clause : 
 
 " All liens created by this Act upon any building or 
 " other improvement, shall be preferred to ALL prior 
 " liens, mortgages or other incumbrances upon the land 
 " upon which said building or other improvement shall 
 " have been constructed or situated WHEN altered or 
 " repaired? 
 
 If this means anything, it means that when the lien 
 is for an alteration or repair, as distinguished from an 
 original construction, the lien shall have preference to 
 all prior incumbrances. This is calculated to work 
 very great injustice. An illustration, by a case which 
 is likely to be of common occurrence, will show. A 
 owns a house and lot worth $4000. The lot is worth 
 $1000, and the building worth $3000, and the title to 
 the property is clear and unencumbered. He borrows 
 $2000 on it from B, and gives a mortgage on the pro- 
 perty to secure the loan. During the currency of the 
 mortgage A undertakes to alter his building by adding 
 a wing or other improvement, and runs in debt $1000 
 or more for it. That debt may be made a lien on the 
 house prior to B's mortgage, the house sold under this 
 law, and removed, and the mortgagee left nothing but 
 the bare lot as a security for his money. 
 
 In enforcing the liens under this Act, the same sec- 
 tion provides that the building or other improvement 
 may be sold separately from the land, and when so sold 
 
16 TEEATISE MECHANICS 7 LIEN LAW. 
 
 the purchaser may remove the same from the land 
 within a reasonable time, not exceeding thirty days, 
 upon the payment to the owner of the land of a reasona- 
 ble rent for its use from the date of the purchase to 
 the time of removal. Whether tiiis is meant to apply 
 to leased land, or to land which, since the structure 
 was erected, has become the property of another than 
 he who was the owner at the time of the improve- 
 ment, does not appear. Perhaps the latter is meant, 
 for in the preceding section, the purchaser, in the 
 case of leased land, is made the assignee of the lease, 
 and is therefore liable for the rent as such. Who is to 
 decide what is a reasonable rent for the use of the land, 
 is not provided for. The purchaser, therefore, must 
 tender sufficient, at his peril. It is provided, however, 
 that if the removal is prevented by legal proceedings, 
 the thirty days shall not begin to run until the final 
 determination of such proceedings in the Court of First 
 Resort, or in the Appellate Court, if an appeal be taken. 
 
 The fourth section of the Act provides that every 
 building, improvement, etc., mentioned in the first sec- 
 tion of the Act, constructed upon any lands, with the 
 knowledge of the owner or person having or claiming 
 any interest therein, shall be held to have been con- 
 structed at the instance of such owner or person having 
 or claiming to have an interest therein, and the inter- 
 est owned or claimed shall be subject to the lien, unless 
 such owner or person, having or claiming any interest 
 therein, shall, within three days after he shall have 
 obtained " a knowledge of the construction, alteration 
 " or repair, or the intended construction, alteration or 
 " repair, give notice that he will not be responsible for 
 
TEEATISE MECHANICS' LIEN LAW. 17 
 
 " the same, by posting a notice to that effect in some 
 " conspicuous place upon said land, or upon the build- 
 " ing or other improvement situated thereon." 
 
 If it is to be held that the work was done " at the 
 instance " of the party, then the party at whose in- 
 stance it is done, is personally liable. And that, evi- 
 dently, is the construction to be given to the Act, be- 
 cause to relieve himself, he is to give notice, not that 
 his land will not be subject to the lien, but that " he 
 will not be responsible." The first question is, to what 
 class of persons does this apply ? It cannot, of course, 
 refer to the person who contracts to have the building 
 erected, or the improvement or repairs made, because 
 such person would be personally liable without any 
 such legislative provision, and " every contractor, sub- 
 " contractor, architect, builder, or other person, having 
 " charge of the work, is held for the purposes of the 
 " Act to be to the agent " of the owner so contracting, 
 and the acts of the authorized agent are the acts of the 
 principal. Again : the principal owner of the land may 
 not be in actual possession, and the land may, at the 
 time of the improvement, be in the occupation of some 
 one claiming, in good faith, title adverse to the true 
 owner, and the true owner may afterwards obtain judg- 
 ment in an action of ejectment against the one in posses- 
 sion, and at whose instance the building, improvement 
 or repairs have been made, and yet, it would seem by 
 this Act, that unless the true owner gave the notice 
 required, within three days after the knowledge of the 
 construction, or the intention to construct came to his 
 notice, his land would not only be subject to the lien, 
 but he would be personally liable. Perhaps, in con- 
 
18 TEEATISE MECHANICS' LIEN LAW 
 
 sequence of the uncertain state of land titles in Cali- 
 fornia, it was only intended by the Legislature to make 
 the lien good as against the true owner, where the 
 work was done by a person in possession claiming title, 
 leaving the remedy to the true owner, to give the no- 
 tice required, and thus save himself and his land from 
 liability for such a lien. 
 
 How far this section is to aifect persons having, in 
 the language of the Act, an interest, or claiming any 
 interest, or what kind of interest is meant, it is impos- 
 sible to say : whether it means a claim to the whole 
 or a part, an equitable title or interest, tax title, 
 sheriff's certificate, or what, is not defined. 
 
 It may be questionable whether it would apply to a 
 landlord, in view of the other provisions of the Act, in 
 reference to leased land, yet the language of the 
 statute is certainly broad enough to cover such a case. 
 If it does, then, when a tenant intends to make an im- 
 provement, or makes an improvement on leased land, 
 for which a lien can be created under the Act, the land- 
 lord, to save himself and his land from liability, must, 
 within three days after the intention to make the im- 
 provement, or the making the improvement comes to 
 his knowledge, give the notice required. Forms of no- 
 tice, under this provision, will be found in the appen- 
 dix. 
 
 By the fifth section of the Act, every original con- 
 tractor, claiming the benefit of the Act, must, within 
 sixty days after the completion of his contract, file with 
 the Recorder of the county in which the improvement, 
 or some part of it is situated, a claim containing a true 
 statement of his demand, after deducting all just 
 
TREATISE MECHANICS' LIEN LAW. 19 
 
 credits and offsets, with the name of the owner or re- 
 puted owner, if known ; and also the name of the per- 
 son by whom he was employed, and a description of 
 ilie property to be charged with the lien, sufficient for 
 identification, which is to be verified by his own oath, 
 or that of some other person. 
 
 Every mechanic, artisan, machinist, builder, lumber 
 merchant, miner, laborer or other person, save the origi- 
 nal contractor, claiming a lien, must do the same with- 
 in thirty clays after the completion of any building, 
 mining claim, or other improvement, or the perform- 
 ance of any labor in any mining claim, or after the 
 completion of the alteration or repair thereof. 
 
 In stating the demand in the notice, it is not neces- 
 sary that the items of the account should be set forth. 
 A statement of the demand, showing its amount and 
 character, has been deemed to be sufficient, under simi- 
 lar provisions in the old Act. See Selden v. Jfefe, 
 17 Cal., R. 128 ; JBrennan v. Swas&y, 16 Cal., K. 140 ; 
 Heston v. Martin, 11 Cal., K. 41. The name of "the 
 u person by whom he was employed, or to whom he 
 "furnished the materials," must also be stated. By the 
 Act of 1856, this was only required inferentially under 
 the language, u a just and true account of the demands 
 due " the claimant, and under that Act the Supreme 
 Court, in TilUts v. Moore, 23 Cal., E,. 209, held that 
 where the notice of lien states that the materials were 
 furnished to A & Co., when in fact they were furnished 
 to A, it does not invalidate the lien, for the mate- 
 rial fact is whether the materials were furnished for and 
 used in the construction of the building on which the 
 lien is claimed. But as the language of the present 
 
20 TEEATISE MECHANICS' LIEN LAW 
 
 Act is explicit, it is well to comply strictly, and give 
 the true name of the person by whom the claimant was 
 employed. 
 
 The next point to be attended to in the notice, is the 
 description of the property u to be charged with the 
 lien." In the case of a wharf, bridge, ditch, fence, 
 wagon road, aqueduct, etc., already alluded to, it will be 
 difficult to describe the property to be charged with 
 the lien, as it is not pointed out by the statute. It 
 would be well, in such cases, however, to describe the 
 improvement and the premises to which they are 
 appurtenant, leaving to the Court to decide under this 
 Act how far the lien shall extend and be effectual. In 
 other cases, in reference to the description generally, we 
 would say it must be so certain that the sheriff, on a 
 writ of restitution or assistance, could clearly identify 
 the land and premises described, and deliver the pro- 
 perty according to the description. Such phrases as 
 " about so many feet " one way or the other, will not 
 answer. The Act provides that the notice shall con- 
 tain a description " sufficient for identification." The 
 Act of 1856 required the party claiming the lien to 
 file " a correct description of the property to be charged 
 with the lien." Under that Act the Suprarne Court 
 held in Montrose v. Conner, 8 CaL, R. 344, that the 
 following notice does not contain such a description as 
 the statute contemplates : "A dwelling house lately 
 " erected by nie for J. W. Conner, situated on Bryant 
 " street, between Second and Third streets, in the city 
 " of San Francisco, on lot No. - ," and the fact that 
 Conner owned no other building on that street, would 
 not cure the defect. Ilotaling v. Cronise, 2 CaL, R. 
 
TEEATISE MECHANICS' LIEN LAW. 21 
 
 60, and Tillits v. Moore, 23 CaL, K. 208, give instan- 
 ces of descriptions held to be sufficient under that Act. 
 There is no danger of claiming too much land, but only 
 to be sure that the superstructure or improvement, 
 and the necessary land around, are within the bounda- 
 ries given, because the Court, in its decree on the fore- 
 closure of the lien, will restrict the recovery to so 
 much only as the Act allows, or as the Court may de- 
 cide to be a " convenient space " around the same, or 
 as they may allow, " for the convenient use and occu 
 pation thereof." (Sec. 2.) 
 
 It is important that the name of the true owner 
 should be stated. The statute says the name of 
 " the owner or reputed owner, if known." But in 
 every case there should be in the notice the name of 
 the person in whose name the title to the property 
 arjpears last of record in the recording office, so that 
 the record of the lien may be notice to all subsequent 
 purchasers and incumbrancers. 
 
 The Act provides that the claim shall be verified by 
 " the oath of himself (the claimant) or some other 
 person." The verification should be by an affidavit, 
 annexed to the claim. Where not sworn to by the 
 claimant himself, it is proper that it should be shown 
 on the face of the affidavit why it is made by another 
 person, his knowledge of the facts stated in the claim, 
 and the relation he bears to the claimant as attorney, 
 agent or otherwise. Besides giving the credits and off- 
 sets in the claim itself, the affidavit should distinctly 
 state that the amount claimed is over and above all 
 just credits and offsets, or, to use the precise language 
 of the Act, that the amount claimed is due " after de- 
 
22 TEEATISE MECHANICS' LIEN LAW. 
 
 ducting all just credits and offsets." The consequence 
 of an omission of such a statement is discussed and de- 
 cided in the case of Davis v. Livingston, 29 Cal., R. 
 283, where the question arose under the fifth section 
 of the Act of 1862. The notice under that section of 
 that Act was required to be of the nature and extent 
 of the claim over and above all payments and set-offs, 
 The Court decided that the omission in the notice of 
 such a statement, was fatal. 
 
 In reference to the time when the notice shall be 
 filed, there is some confusion in the Act, and an unfortu- 
 nate adoption of the language of the Act of 1862, 
 which was founded on an entirely different principle 
 from the present Act. 
 
 The original contractor, if there is one, is to file his 
 claim within sixty days after " the completion of Ms 
 contract" It will be sometimes difficult to say what 
 constitutes the completion of the contract. Sometimes, 
 although the original contract may be in writing, it 
 may become, as it frequently does in building contracts, 
 so varied by subsequent parole agreements, waivers, ex- 
 tensions, extra work, alterations of plan, etc., that the 
 original contract, in its main features, is substantially 
 lost sight of and abandoned. The rule, in such a case, 
 in fixing a time and deciding whether the claim is filed 
 in time, is to come as near the substantial completion 
 of the contract as originally^ intended as possible, 
 taking into consideration all the subsequent modifica- 
 tions, In reference to sub-contractors and other per- 
 sons doing labor or furnishing materials, the language 
 is different, and is variant and unsatisfactory. The 
 claim in such case is to be filed within thirty days after 
 
TEEATISE MECHANICS' LIEN LAW. 23 
 
 the completion of any building, mining claim, or other 
 improvement ; and as to labor in any mining claim, the 
 Act says, " after the performance of any labor in any 
 mining claim, or after the completion or repair there- 
 of." It is probable that, as to labor in mining claims, 
 the Legislature meant that, as a man may work or do 
 labor in a mine, which labor may not consist either in 
 completing it or repairing it, in such case he should be 
 entitled to a lien, and should file his notice or claim in 
 thirty days after the performance of the labor. If so, 
 it will apply to every laborer in all kinds of mines, 
 whether gold, silver, copper, coal, quicksilver, or any 
 other ore or material. It is an unfortunate provision, 
 that the claim of the sub-contractors and others, on 
 buildings, is required to be filed thirty days after the 
 completion of the building or improvement, instead of 
 thirty days after doing of the labor or furnishing the 
 materials, because what " completion " means must de- 
 pend upon the original contract, which it is often diffi- 
 cult to get at. There may be a dispute between the 
 owner and original contractor as to when the building 
 contracted for is complete, which may be in litigation 
 for years. The contract may, in its progress, be altered 
 so that the building is to be left incomplete, and 
 yet the contract may be completed / as, for instance, a 
 contract may provide for the finishing a house by 
 painting it, outside and in, yet the contractor and 
 owner may change the contract by making the build- 
 ing, or the contract complete when it is lathed and 
 plastered. What shall constitute the completion of the 
 work may be, and usually is, a matter between the 
 original contractor and owner, that the sub-contractor, 
 
24 TEEATISE MECHANICS' LIEN LAW. 
 
 mechanic or laborer knows nothing about. So far as 
 the owner is concerned, it is right that he should 
 know with certainty within what time sub-contrac- 
 tors, and those doing labor and furnishing materials, 
 are bound to file their claims, so that he can settle with 
 the original contractor, without the danger of paying 
 twice. 
 
 As the law makes the owner really liable, through 
 his property, for what he may never have contracted 
 to pay, it would have been well that the Legislature 
 had re-enacted the law of 1856, which provided that 
 " sub- contractors, journeymen, laborers, and other per- 
 sons performing labor or furnishing materials," should 
 file their claims within thirty days " after the work 
 was done or materials furnished." The Act of 1862, 
 as we remarked, was founded on a different principle 
 from the old lien law or the present one. It enabled 
 the mechanic or laborer to recover only through the 
 principal contractor, and through his contract with the 
 owner, and then not any amount beyond what was to 
 become due on his contract ; nor at all, unless notice 
 was given to the owner before the payments on the 
 contract became due. In that case there was a pro- 
 priety in determining the time of filing the notice to be 
 thirty days after the completion of the building. Li- 
 the new Act, the Legislature has retained the language 
 of the Act of 1862, though the reason for it does not 
 now exist. / 
 
 To avoid all question, it may be as well, in all cases, 
 to file the claim within thirty days after the work is 
 done or the materials furnished. 
 
 We have been particular in setting forth what is 
 
TREATISE MECHANICS' LIEN LAW. 25 
 
 necessary to be contained in the claim, and the time of 
 its service, because our Supreme Court, in the case of 
 Davis v. Livingston, 29 CaL, R. 283, above referred to, 
 (Judge Shafter delivering the opinion of the Court), 
 decided that the remedy given, even by the Act of 
 18(52, was an extraordinary one, and therefore " all 
 u the provisions of the Act must be strictly complied 
 u with." In Bottomly v. Grace Church, 2 CaL, E. 90, 
 Judge Heydenfelt, delivering the opinion of the Court 
 on the Lien Law of 1850, decided that the language 
 of the Act was sufficiently explicit, and must be strict- 
 ly construed, because it gave rights in derogation of 
 the Common Law. Afterwards, in Tut tie v. Montford, 
 7 CaL, R. 359, Judge Burnett delivering the opinion of 
 the Court, decided that the lien of the mechanic, arti- 
 san and material man, is favored in law, because those 
 parties have, in part, created the very property on 
 which the lien attaches. In McCrea v. Craig, 23 CaL, 
 R. 523, Judge Crocker, in delivering the opinion of the 
 Court, used nearly the same language. He said : 
 " Although the lien is created by and depends upon a 
 " compliance with the terms of the statute, yet it is a 
 u favored lien, because the very property upon which 
 " the lien attaches has been created by the labor or 
 " materials furnished by the person claiming the lien." 
 Such are the conflicting opinions of our Judges on a 
 very important principle. The decision in Tuttle v. 
 Montford and in McCrea v. Craig, may be more in 
 conformity with the principles of equity and the spirit 
 of the age, than that in Bottomly v. Grace Church, 
 which they overruled ; but the opinion in Davis v. 
 Livingston, is the last, and therefore the controlling 
 
26 TREATISE MECHANICS' LIEN LAW. 
 
 decision and the law of the State, until changed by 
 some subsequent decision of our Supreme Court. In 
 all the preliminary steps, therefore, before proceeding 
 to enforce the lien, it is necessary that the proceedings 
 should be accurate, and strictly comply with the statute, 
 or the lien may be lost. We have given in the appen- 
 dix various forms and claims under the Act named, 
 according to the position to the building, structure or 
 improvement the claimant may occupy. 
 
 The County Recorder records the claim in a book 
 to be kept by him for that purpose, and his fees are 
 the same as are allowed by law for recording deeds 
 and other instruments. (Sec. 6.) 
 
 Where the buildings or improvements are not con- 
 tiguous, a joint claim for a lien on both cannot be filed ; 
 and where they are contiguous and owned by the same 
 person, the joint claim shall designate the amount due 
 the claimant on each of such buildings, and if it does 
 not, the lien claimed shall be postponed, to other lien 
 holders. (Sec. 7.) A form for such claim will be found 
 in the appendix. In contiguous or adjoining buildings 
 the lien on each extends only to the amount of the 
 claim on each building respectively. 
 
 No lien shall continue for a longer period than nine- 
 ty days from the time of filing, unless a suit to enforce 
 it is brought in a proper Court within that time, or if 
 a credit has been given no longer than ninety days 
 after the expiration of the credit. But no lien is to 
 be in force, by any agreement to give credit, for more 
 than two years from the time the work is completed. 
 (Section 8.) 
 
 We have already spoken of the right to a lien that 
 
TREATISE MECHANICS' LIEN LAW. 27 
 
 a person acquires on a city or town lot, for grading, 
 filling in and improving it. (Sec. 9.) The form for such 
 a claim will be found in the appendix. 
 
 The 10th section of the Act provides for the bring, 
 ing of actions to enforce liens under the Act. To en- 
 force liens on real estate, the suit has to be commenced 
 in a District Court, however small the sum may be. 
 We give in the appendix the form of a complaint in 
 the most ordinary case that of the erection of a 
 house ; and we also give some other forms of com- 
 plaints, but they, of course, will have to be adapted to 
 the peculiar circumstances of the case for which a suit 
 may be sought to be instituted. In all such actions, it 
 is necessary to make all persons who are personally 
 liable, and all lien holders whose claims have been 
 filed in the Recorder's Office, and all other persons 
 interested in the matter in controversy, or in the pro- 
 perty to be charged with the lien parties to the action, 
 otherwise they will not be bound by the proceedings. 
 (See sub. 5th of sec. 10.) 
 
 In this respect the Act is different from the old Act, 
 which provided for the publication of notice to all 
 having an interest to appear and present their claims. 
 Now they must be made parties to the action in the 
 first instance, and regularly served with process. It will 
 be necessary, therefore, for the claimant, before commen- 
 cing his action, to have a thorough search made of the 
 title in the Recorder's office, and also to see who is in 
 the actual possession of the premises ; for possession, 
 under a title not appearing on the record, has been 
 adjudged to give as sufficient notice to subsequent 
 purchasers and incumbrancers as under our registry 
 
28 TREATISE MECHANICS 1 LIEN" LAW. 
 
 acts, a recorded deed does. Lo/nders v. Bolton, ^6 Cal., 
 394. In short, every one should be made a party who, 
 either by the record or by possession, appears to have 
 any interest in the premises. As to one class of per- 
 sons being made parties, the statute is imperative. 
 Persons, it says, who are personally liable, and all 
 lien-holders whose claims have been filed for record 
 under the 5th section of the Act, shall be made parties, 
 and as to other parties interested in the controversy, 
 it says they may be made parties. 
 
 Where, by reason of the absence of a party defen- 
 dant from the State, or of his residence out of the 
 State, " or for any other cause, he cannot be served 
 personally," and where, by the Practice Act, service of 
 a summons may be made by publication, service can 
 in cases under this Act be made by publication, but 
 instead of once a week for three months, as in the 
 Practice Act, the publication is to be once a week for 
 four successive weeks. By the Practice Act, the service 
 is complete only at the end of the publication with the 
 same e^ect as if the summons had been served that 
 day, and then the time to answer commences to run ; 
 but this section of the Act provides that the time for 
 answering shall expire when such publication is com- 
 plete; and if no answer of such defendant is then 
 filed his default may be entered ; so that the time of 
 service, four weeks, or twenty-eight day^s, is shorter in 
 such a case than in a case where a defendant resides 
 out of the district, but in the State, for in that case, 
 the time required for his appearance is forty days. 
 (3 sub. of sec. 25 of Practice Act.) 
 
 It will be observed that the Act speaks of a case 
 
TEEATISE MECHANICS' LIEN LAW. 
 
 where, by the Practice Act, service may be made by 
 publication. Now, where the residence of the party 
 residing out of the State is known, by the Practice 
 Act, service cannot be made by publication alone, but 
 must also be made by mail. (Sec. 31 of Practice Act.) 
 
 In such cases, under this Act, service by mail should 
 also be made. The Act, however, provides that the 
 Court may in its discretion, in all cases, instead of 
 ordering publication, or after publication, appoint an 
 attorney to appear for the non-resident, absent or con- 
 cealed defendant, and conduct the proceedings on his 
 part. Perhaps it would be better, even after publica- 
 tion, in every case, to have such attorney appointed. In 
 case of non-resident, absent or concealed defendants, 
 the affidavits should be full and the statute in every 
 respect strictly complied with. Forms are given in 
 the appendix. 
 
 The Act provides that all suits to enforce a lien un- 
 der this Act shall have a preference on the calendar 
 of the Court over any civil suit, except suits to which 
 the State is a party, and are to be tried by the Court 
 without unnecessary delay. (4 sub. of sec. 10.) 
 
 It also provides (sub. 3 of sec. 10) that the Court 
 shall, upon entering judgment for the plaintiff, allow 
 as a part of the costs, all moneys paid for the filing 
 and recording of the lien, and also a reasonable amount 
 as attorney's fees. This is new, and will, it is pre- 
 sumed, embrace all reasonable charges of the attorney 
 in preparing the lien papers and conducting the cause, 
 so that the party prosecuting his demand in this form 
 will receive it without any deduction for his attorney 
 and counsel fees, unless, indeed, the proceeds of the 
 
30 TREATISE MECHANICS 7 LIEN LAW 
 
 sale should be insufficient to pay sucli fees. The fees 
 to be paid to the attorney who may be employed by 
 the Court to appear for absent defendants or protect 
 their interests, will also, of course, be allowed and de- 
 ducted. These amounts should be proved on the trial 
 and inserted in the judgment, or an order made by the 
 Court, on proper evidence, before the judgment is en- 
 tered. Forms are given in the appendix. 
 
 There is another point in the decree, which is very 
 important. It will be observed that by the 2d section of 
 the Act, the lien is to be upon the land upon which 
 any building or other improvement shall be construct- 
 ed, together with a convenient space about the same, 
 or so much as may be required for the convenient use 
 and occupation thereof. This is precisely the same 
 language as the 4th section of the Act of 1856, as 
 amended, and under that Act the Supreme Court, in 
 the case of TMits v. Moore, 23 Cal. 213, decided that, 
 " in cases of this kind, it is proper for the Court, by its 
 " decree, to define the amount and extent of the land 
 " connected with the building, which is properly sub- 
 ject to the lien. Such an omission will not invalidate 
 " the decree, but renders it doubtful whether a pur- 
 " chaser under it will acquire any land beyond that 
 " covered by the building." The form of the decree in 
 the appendix gives the author's idea of how a decree 
 should be framed in that fespect. 
 
 After the property has been sold on the decree, and 
 the money realized, the Act provides (sub. 2 of sec. 10) 
 how the proceeds shall be divided. If the money re- 
 alized shall be insufficient to pay all the lien-holders, 
 it is to be applied as follows : 
 
TEEATISE MECHANICS' LIEN LAW. 31 
 
 First To pay the liens of .all persons other than 
 the original contractor or sub-contractor. This class, 
 of course, embraces mechanics, lumber merchants, and 
 persons performing labor or furnishing materials ; and 
 if the sum is insufficient to pay them all, then they are 
 to be paid pro rata. If sufficient to pay them all, then 
 out of the remainder, if any, to pay, 
 
 Second The sub-contractors, and if insufficient, to 
 pay them in full, then they are to be paid pro rata. 
 The remainder, if any, is to be paid, 
 
 Third To the original contractor. 
 
 Such is the language of the statute ; but we suppose 
 it means that so much of the remainder as will satisfy 
 the original contractor's demand, as settled by the de- 
 cree, shall be paid to him, and the balance to the 
 owner of the land, or to be paid by the Sheriff into 
 Court for the behoof of those entitled to it in the same 
 manner as under sec. 247 of the Practice Act, in refer- 
 ence to the foreclosure of mortgages. The rights of 
 each party should be distinctly defined by the decree, 
 for the second subdivision of section 10, provides that, 
 in case of a deficiency, each claimant shall be entitled to 
 execution for any balance due him after such distribu- 
 tion, and such execution is to be issued by the clerk of 
 the Court on demand, after the return of the Sheriff, 
 showing the balance due. We have given in the 
 appendix forms of the decree and of the execution, as 
 well for the sale as for the balance in favor of a claim- 
 ant with the return of Sheriff, on which it is founded. 
 
 It will be observed that the liens commence to run 
 from the time the work and labor is commenced, or 
 the materials begun to be furnished. This is substanti- 
 
32 TEEATISE MECHANICS' LIEN LAW. 
 
 ally the meaning of the third section, and under the 
 old Act, the Supreme Court decided in the case of 
 TMitts v. Moore, 23 Cal. R., already referred to, 
 that " the lien of a material man accrues at the time 
 he has the materials, which he has contracted to fur- 
 nish, ready for delivery at the place where he has 
 agreed to deliver them ;" and in McCrea v. Craig, 23 
 Cal. 522, it was decided that "the lien given by the 
 statute to the mechanic or material man, for work and 
 labor performed or materials furnished in the construc- 
 tion of a building, commences and attaches to the pro- 
 perty at the time of the commencement of the work 
 or the beginning to furnish the materials." It is im- 
 portant, therefore, for a person lending money on pro- 
 perty, to see that the lien has not commenced, though 
 no claim may be filed in the Recorder's office. 
 
 The distribution of the proceeds of a sale, under the 
 2d subdivision of the 10th section, may be materially 
 changed by the creation of a mortgage after one lien has 
 attached, but before another lien has taken effect. In 
 that event, the proceeds, after the first lien-holder is 
 paid, would have first to be applied on the mortgage 
 before being applied on the lien second in point of 
 time. In the distribution, mortgages, prior to the 
 liens, must, of course, be first paid, but if the lien is 
 for an alteration or repair, the lien in such case is prior 
 to all mortgages, if the construction the author has 
 given to the 3d section of the Act is correct. 
 
 The llth section of the Act provides that a con 
 tractor who files a lien shall be entitled to recover only 
 such amount as may be due to him according to the 
 terms of his contract, after deducting all claims of other 
 
TEEATISE MECHANICS' LIEN LAW. 33 
 
 parties for work done or materials furnished. The 
 claims here referred to, it is presumed, are claims which 
 have become, or may become, liens, for the owner can 
 have no interest in compelling the contractor to pay 
 claims which have not been made or cannot be made 
 a lien on the owner's property. The Act further pro- 
 vides that, where a lien is filed for work done or mate- 
 rials furnished to any contractor, he is bound to defend 
 any action brought to foreclose it at his own expense 
 and during the pendency of the suit, the owner may 
 withhold from the contractor the amount of money for 
 which the lien is filed; and in case of a judgment 
 against the owner or his property for the lien, the 
 owner shall be entitled to deduct from any amount due 
 or to become due to the contractor the amount of the 
 judgment and costs. If the judgment exceeds the 
 amount due the contractor, or the owner has before 
 paid the contractor in full, he is entitled to recover 
 back from the contractor any excess of the contract 
 price. When an action is brought by any other than 
 the contractor, the owner should give the contractor 
 notice, and call on him to defend the action. If the 
 contractor is a party to the action, the judgment against 
 the contractor for the excess may be obtained in that 
 suit. If not, the owner will have to bring a separate 
 action against him for the excess. We have given in 
 the appendix forms of the notice and of the final de- 
 cree where the contractor is a party, and also of the 
 complaint where he is not. 
 
 By section 12, it is enacted that all materials fur- 
 nished or procured by any mechanic, artisan, machinist, 
 builder, lumber merchant, contractor, laborer, or other 
 
34 TREATISE MECHANICS' LIEN LAW. 
 
 person, for use in the construction, alteration or repair 
 of any building, shall not be subject to attachment, 
 execution, or other legal process, to enforce any debt 
 due by the purchaser of such materials, except a debt 
 due for the purchase money of the materials, so long 
 as in good faith the articles are about to be applied to 
 the construction, alteration, repair, etc., of the building. 
 
 This section is somewhat vagne, arising from the use 
 of the indefinite word " about." A mechanic may 
 have manufactured, or be manufacturing, doors and 
 windows for a building, intending, in good faith, that 
 they should be applied to the construction of a build 
 ing, and yet they may be miles away from the build 
 ing to be constructed ; but whether they would be 
 adjudged to be " about," to be applied to the construc- 
 tion of the building, under this Act, till they were re- 
 moved to the ground, or in process of removal, will be 
 a question to be decided by the peculiar facts of each 
 case, 
 
 By section 13, a party who has a lien is not preclu- 
 ded from suing the person who is personally liable to 
 him, in a personal action, and may take out an attach- 
 ment therefor, notwithstanding his lien ; and in his 
 affidavit for an attachment, he need not state that his 
 demand is not secured by a lien. In this respect, so 
 far as such an action is concerned, it modifies the first 
 subdivision of section 120 of the Practice Act. It is 
 further declared, that the personal action neither im- 
 pairs nor merges any lien held by the plaintiff un- 
 der the Act, but it provides that^any money collected 
 on the judgment, in the personal action, shall be 
 credited on the amount claimed under such lien in any 
 action brought to enforce the lien. 
 
TREATISE MECHANICS' LIEN LAW. 35 
 
 The fifteenth section of the Act provides for the lien 
 of mechanics, artisans or laborers, for the making, 
 altering or repairing any article of personal property, 
 where such making, altering or repairing is done at 
 the request of the owner or legal possessor, and pro- 
 vides that he may retain the same in his possession till 
 his reasonable charges are paid. This is substantially 
 the Common Law on the subject. It does not provide 
 that the lien shall remain after he has parted with the 
 article. When he parts with it, therefore, the lien ends 
 as it does at Common Law. The lien, too, by the Com- 
 mon Law, belongs only to the person contracting to do 
 the work, and does not extend to persons employed 
 under him. (HoUingsworth v. Dow, 19 Pick. R. 228.) 
 This section does not change the Common Law in those 
 respects, but it points out the mode and manner of 
 making this lien effectual. The mode of realizing the 
 amount due under such a lien was not provided by 
 Common Law; at least the question was attended with 
 considerable doubt and difficulty. Chancellor Kent 
 says (2 KenCs Com. 823) that the right to sell is not 
 allowed by general custom, but he presumes that satis- 
 faction may be enforced by bill in chancery. This 
 Act, however, provides how the lien shall be enforced, 
 but to make the proceeding an effectual protection to 
 the lien-holder, the statute must be strictly complied 
 with. The mechanic, or other person, must wait for 
 two months after the work is done before he can take 
 measures to sell. He is then authorized to sell the 
 property, at public auction, by giving ten days public 
 notice of such sale, in some newspaper published in the 
 county in which the work was done. If no newspaper 
 
36 TREATISE MECHANICS' LIEN LAW. 
 
 is published in the county, then by posting notices in 
 three most public places in the "town" where such work 
 was done, ten days previous to the sale. Nothing is 
 said about the number of times the notice is to be in- 
 serted, but to make certain, it should be inserted as 
 often as the paper is published till the day of sale, un- 
 less it is a daily paper, when probably an insertion 
 once a week would be sufficient. A form for the notice 
 is given in the appendix. The proceeds of the sale are 
 to be applied to the discharge of the lien, and the cost 
 of keeping and selling the property ; and the remain- 
 der, if any, is to be paid over to the owner. 
 
 The 17th section of the Act repeals all previous acts 
 in reference to mechanics' liens; but by the 16th sec- 
 tion, nothing in the Act is to effect any lien acquired 
 before the Act took effect ; but such lien is to be en- 
 forced under the new Act. In suits pending when the 
 Act took effect, the proceedings afterward thereon 
 may be conducted according to the new Act. The 
 Supreme Court so held in McCrea v. Craig, before re- 
 ferred to, without any legislative provision to that 
 effect. 
 
 The Act was approved 30th March, 1868, and took 
 effect sixty days from that date, so that it went into 
 effect on the 30th of May, 1868. 
 
 Such is the law to secure the liens of laborers and 
 mechanics in this State as it now stands. The neces- 
 sity and the justice of lien lawsVhave been recognized 
 by almost every State in the Union, and legislation has 
 been successfully invoked and obtained in establishing 
 and enforcing them. While, however, it is just that 
 
TREATISE MECHANICS' LIEN LAW. 37 
 
 the wages of honest labor should be thus protected 
 and the claims of the mechanic and artisan should be 
 secured by lien, and for the very sufficient reasons given 
 by Judges Burnett and Crocker that their labors create 
 in part the very property on which the lien is sought, 
 yet the law should be so framed as that, while on the 
 one hand the rights of the claimants should be fully 
 protected, on the other hand no injustice should thereby 
 be done to the owners of the property who have con- 
 tracted for the erection of the superstructure or 
 improvement. It cannot be said of this Act, although 
 it contains many highly beneficial and judicious pro- 
 visions, that it has fully accomplished either of those pur- 
 poses. By proper legislative amendments to the Act, 
 however, the rights of all may be easily and fully 
 secured and injury done neither to the one class nor 
 the other. As the law stands it is a serious check in 
 the progress of local improvements, in the way of 
 which, and to the investment of capital in that direction, 
 it throws many discouragements and impediments. 
 There is another evil likely to be produced by it, and 
 that is, its tendency to build up a kind of mechanical 
 aristocracy. Few owners of real estate, as the law now 
 is, will engage in erecting superstructures without 
 taking from the master mechanic, before the com- 
 mencement of the work, ample security against all and 
 any liens that under this Act may be created on the 
 owner's property. The result of this will very likely 
 be to confine and restrict the business of Building by 
 contract to the wealthy master mechanics, who, besides 
 their undoubted personal responsibility, are capable of 
 giving abundant security to perform any contract they 
 
38 TEEATISE MECHANICS' LIEN LAW. 
 
 may enter into, which the less wealthy class may 
 experience much difficulty in doing. Thus the young 
 and aspiring though comparatively poor mechanic will 
 find obstacles thrown in the way of his advancement 
 which did not before exist, competition will be lessened, 
 the class of dependent journeymen and laborers 
 increased, and the class of master mechanics diminished* 
 The object of this Treatise is to enable all parties 
 affected by the law, as it now stands, to take such 
 measures legally as may protect their just rights. If a 
 subsequent edition is issued before the meeting of the 
 next Legislature, the author will take the liberty of 
 submitting the draft of a law which, in his opinion, 
 will as far as practicable secure the rights of the 
 laborer and mechanic without injuring the rights or 
 interests of the owners of property. 
 
THE ACT 
 
 COMMONLY CALLED THE MECHANICS' LIEN LAW, 
 
 PASSED BY THE LEGISLATURE OF THE STATE OF CALIFOR- 
 NIA, AT ITS SEVENTEENTH SESSION, 1867-8, AND 
 NUMBERED CHAPTER CCCCXLVHI OF THE 
 ACTS OF THAT SESSION. 
 
 An Act for Securing Liens of Mechanics and others, 
 
 [APPROVED MARCH 30, 1868.] 
 
 The People of the State of California, represented in Senate and 
 Assembly, do enact as follows : 
 
 SECTION 1. Every mechanic, artisan, machinist, builder, 
 contractor, lumber merchant, miner, laborer, and other 
 person performing labor upon or furnishing materials of 
 any kind to be used in the construction, alteration, or repair, 
 either in whole or in part, of any mining claim, building, 
 wharf, bridge, ditch, flume, tunnel, fence, machinery, rail- 
 road, wagon road, aqueduct to create hydraulic power for 
 mining or other purposes, or any other structure or super- 
 structure, or who shall perform labor in any mining claim, 
 shall have a lien upon the same for the work or labor done 
 or materials furnished by each respectively, whether done 
 
40 THE ACT. 
 
 or furnished at the instance of the owner of the building or 
 other improvement, or his agent ; and every contractor, sub- 
 contractor, architect, builder, or other person having charge 
 of any mining, or of the construction, alteration or repair, 
 either in whole or in part, of any building or other improve- 
 ment as aforesaid, shall be held to be the agent of the 
 owner for the purposes of this Act. 
 
 SEC. 2. The land upon which any building or other im- 
 provement as aforesaid shall be constructed, together with 
 a convenient space about the same, or so much as may be 
 required for the convenient use and occupation thereof, shall 
 also be subject to the liens created by this Act, if, at the 
 time the work was commenced or the materials for the 
 same had commenced to be furnished, the said land be- 
 longed to the person who caused said building or other im- 
 provement to be constructed, altered, or repaired ; but if 
 such person owned less than a fee simple estate in such land, 
 then only his interest therein shall be subject to such lien; 
 and in case such interest shall be a leasehold interest, and 
 the holder thereof shall have forfeited his right thereto, the 
 purchaser of such building or improvement and leasehold 
 term, or so much thereof as remains un expired at any sale 
 under the provisions of this Act, shall be held to be the 
 assignee of such leasehold term, and as such shall be entitled 
 to pay the lessor all arrears of rent or other money and 
 cost due under said lease, unless the lessor shall have re- 
 gained possession of the said land and property, or obtained 
 judgment for the possession thereof prior to the commence- 
 ment of the construction, alteration, or repair of the build- 
 ing or other improvement thereon ; in which event, said 
 purchaser shall have the right only to remove the building 
 or other improvement within thirty days after he shall have 
 purchased the same ; and the owner of the land shall re- 
 ceive the rent due him, payable out of the proceeds of the 
 sale, according to the terms of the lease, down to the time 
 of such removal. 
 
THE ACT. 41 
 
 SEC. 3. All liens created by this Act upon any land or 
 mining claim, shall be preferred to any lien, mortgage, or 
 other incumbrance which may have attached to said land 
 or mining claim, subsequent to the time when the building 
 or other improvement was commenced, or the materials 
 were begun to be furnished ; also, to any lien, mortgage, or 
 other incumbrance which was unrecorded at the time when 
 said building or other improvement was commenced, or the 
 materials for the same were commenced to be furnished ; 
 and all liens created by this Act upon any building or other 
 improvement, shall be preferred to all prior liens, mortga- 
 ges, or other incumbrances upon the land upon which said 
 building or other improvement shall have been constructed, 
 or situated when altered or repaired ; and in enforcing such 
 lien, such building or other improvement may be sold 
 separately from said land ; and when so sold, the purchaser 
 may remove the same within a reasonable time thereafter, 
 not to exceed thirty days, upon the payment to the owner 
 of the land of a reasonable rent for its use from the date of 
 his purchase to the time of removal ; provided, that if such 
 removal be prevented by legal proceedings, said thirty days 
 shall riot begin to run until the final determination of such 
 proceedings in the Court of first resort, or in the appellate 
 Court, if appeal be taken. 
 
 SEC. 4. Every building or other improvement mentioned 
 in the first section of this Act, constructed upon any lands 
 with the knowledge of the owner, or the person having or 
 claiming any interest therein, shall be held to have been 
 constructed at the instance of such owner or person having 
 or claiming any interest therein, and the interest owned or 
 claimed shall be subject to any lien filed in accordance with 
 the provisions of this Act, unless such owner or person 
 having or claiming an interest therein, shall, within three 
 days after he shall have obtained knowledge of the con- 
 struction, alteration or repair, or the intended construction, 
 alteration, or repair, givo notice that he will not be responsi- 
 
I 
 
 42 THE ACT. 
 
 ble for the same, by posting a notice iu writing to that 
 effect, in som.e conspicuous place upon said land, or upon 
 the building or other improvement situated thereon. 
 
 SEC. 5. It shall be the duty of every original contractor, 
 within sixty days after the completion of his contract, and 
 of every mechanic, artisan, machinist, builder, lumber 
 merchant, miner, laborer, or other person, save the original 
 contractor, claiming the benefit of this Act, within thirty 
 days after the completion of any building, mining claim, 
 or other improvement, or the performance of any labor in 
 any mining claim, or after the completion of the alteration 
 or repair thereof, to file with the County Recorder of the 
 county in which such building or other improvement, or 
 some part thereof, shall be situated, a claim containing a 
 true statement of his demand, after deducting all just 
 credits and effects, with the name of the owner or reputed 
 owner, if known, and also the name of the person by whom 
 he was employed, or to whom he furnished the materials, 
 and also a description of the property to be charged with 
 said lien, sufficient for identification, which claim shall be 
 verified by the oath of himself, or of some other person. 
 
 SBC. 6. The County Recorder shall record said claim in a 
 book kept by him for that purpose, which record shall be 
 indexed as deeds and other conveyances are required by 
 law to be indexed, and for which he shall receive the same 
 fees as are allowed by law for recording deeds and other 
 instruments. 
 
 SEC. 7. In every case in which one claim shall be filed, 
 under the provisions of this Act, against two or more build- 
 ings, mining claims or other improvements, owned by the 
 same person, the person filing such joint claim shall at the 
 same time designate the amount due to him on each of 
 such buildings, mining claims, or other improvements ; 
 otherwise, such claim shall be postponed to other lien-hold- 
 ers, and the lien of such claimant shall not extend beyond 
 the amount so designated, as against other creditors having 
 
THE ACT. 43 
 
 liens by judgment, mortgage or otherwise, upon either of 
 such buildings or other improvements, or upon the land 
 upon which the same are situated ; provided, that no joint 
 claim shall be filed upon two or more buildings, unless they 
 are contiguous to or adjoining each other. 
 
 SEC. 8. No lien provided for in this Act shall bind any 
 building, mining claim, or other improvement for a longer 
 period than ninety days after the same shall have been filed, 
 unless suit be brought in a proper Court within that time 
 to enforce the same; or, if a credit be given, then ninety 
 days after the expiration of such credit. But no lien shall 
 be continued in force for a longer time than two years from 
 the time the work is completed by any agreement to give 
 credit. 
 
 SEC. 9. Any person who shall at the request of the owner 
 of any lot in any incorporate city or town, grade, fill in, or 
 otherwise improve the same, or the street in frcnt of or 
 adjoining the same, shall have a lien upon such lot for his 
 work done and materials furnished in grading, filling in, or 
 otherwise improving the same; and all the provisions ot 
 this Act respecting the securing and enforcing of mechan- 
 ics' liens shall apply thereto. 
 
 SEC. 10. First Suits to enforce the liens created oy this 
 Act, except those under section fifteen, shall be brought in 
 the District Courts; and the pleadings, process, practice and 
 other proceedings, shall be the same as in other cases ; pro- 
 vided, that where service of summons may be made under 
 the Practice Act by publication, the time of publication, 
 where the defendant resides out of, or is absent from, the 
 State, or for any other cause, cannot be served personally, 
 and [need] be but once a week for four successive weeks, and 
 the time for answering shall expire when such publication is 
 complete, and if no answer of such defendant is then filed, 
 his default may be entered ; and, provided, also, that the 
 Court may in its discretion, in all cases under this Act, 
 instead of ordering publication, or may after publication, 
 
44 THE ACT. 
 
 appoint an attorney to appear for the non-resident, absent, 
 or concealed defendant, and conduct the proceedings on 
 his part. 
 
 Second In case the proceeds of any sale under this Act 
 shall he insufficient to pay all lien-holders under it, the liens 
 of all persons other than the original contractor and 
 sub-contractors shall first be paid in full, or^>ro rata, if the 
 proceeds be insufficient to pay them in full ; and out of the 
 remainder, if any, the sub-contractors shall then be paid in 
 full, or pro raid if the remainder be insufficient to pay them 
 in full; and the remainder, if an\, shall be paid to the 
 original contracter ; and each claimant shall be entitled to 
 execution for any balance due him after such distribution, 
 such execution to be issued by the Clerk of the Court upon 
 demand, after the return of the Sheriff or other officer 
 making the sale showing such balance due. 
 
 Third In all suits under this Act the Court shall, upon 
 entering judgment for the plaintiff, allow as a part of the 
 costs all moneys paid for the filing and recording of the 
 lien, and also a reasonable amount as attorneys' fees. 
 
 Fourth All suits to enforce any lien created by this Act 
 shall have preference upon the calendar of the Court over 
 any civil suit already brought or to be brought, except suits 
 to which the State shall be a party, and shall be tried by 
 such Court without unnecessary delay. 
 
 Fifth In all suits to enforce any lien created by this 
 Act, all persons personally liable, and all lien-holders whose 
 claims have been filed for record under the provisions of 
 section five of this Act, shall, and all other persons in- 
 terested in the matter in controversy, or in the property 
 sought to be charged with the lien, may be made parties ; but 
 such as are not made parties slxajl not be bound by such 
 proceedings. 
 
 SEC. 11. Any contractor shall be entitled to recover upon 
 a lien filed by him only such amount as may be due to him 
 according to the terms of his contract, after deducting all 
 
THE ACT. 45 
 
 claims of other parties for work done and materials fur- 
 nished as aforesaid ; and in all cases where a lien shall be 
 filed under this Act for work done or materials furnished 
 to any contractor, he shall defend any action brought there- 
 upon at his own expense ; and during the pendency of such 
 action, the owner may withhold from the contractor the 
 amount of money for which such lien is filed; and in case 
 of judgment against the owner or his property, upon the 
 lien, the said owner shall be entitled to deduct from any 
 amount due or to become due by him to the contractor, the 
 amount of such judgment and costs; and if the amount of 
 such judgment and costs shall exceed the amount due by 
 him to the contractor, or if the owner shall have settled 
 with the contractor in full, he shall be entitled to recover 
 back from the contractor any amount so paid by him, the 
 said owner, in excess of the contract price, and for which 
 the contractor was originally the party liable. 
 
 SEC. 12. Whenever any mechanic, artisan, machinist, build- 
 er, lumber merchant, contractor, miner, laborer, or other per- 
 son, shall have furnished or procured any materials for use 
 in the construction, alteration or repair of any building or 
 other improvement, such materials shall not be subject to 
 attachment, execution or other legal process, to enforce any 
 debt due by the purchaser of such materials, except a debt 
 due for the purchase money thereof, so long as in good faith 
 the same are about to be applied to the construction, altera- 
 tion or repair of such building, mining claim, or other im- 
 provement. 
 
 SEC. 13. Nothing contained in this Act shall be con- 
 strued to impair or affect the right of any person to whom 
 any debt may be due for work done or materials furnished, 
 to maintain a personal action to recover said debt against 
 the person liable therefor ; and the person bringing such 
 personal action may take out an attachment therefor, not- 
 withstanding his lien, and in his affidavit, to procure an 
 attachment, need not state that his demand is not secured 
 
46 THE ACT. 
 
 by a lien, but the judgment, if any, obtained by the plain- 
 tiff in such personal action, shall not be construed to im 
 pair or merge any lien held by said plaintiff under this 
 Act; provided, only, that any money collected on said judg- 
 ment shall be credited on the amount claimed under such 
 lien iii any action brought to enforce the same, in accord- 
 ance with the provisions of this Act. 
 
 SEC. 14. The words " building or other improvement," 
 whenever the same are used in this Act, shall be held to 
 include and apply to any wharf, bridge, ditch, flume, tunnel, 
 fence, machinery, railroad, wagon road, aqueduct to create 
 hydraulic power, or for mining or other purposes, and all 
 other structures and superstructures, whenever the same 
 can be made applicable thereto : and the words " con- 
 struction, alteration or repair," whenever the same are used 
 therein, shall be held to include partial construction and all 
 repairs done in and upon any building or other improve- 
 ment. 
 
 SBC. 15. Any mechanic, artisan, or laborer, who shall 
 make, alter, or repair any article of personal property at 
 the request of the owner or legal possessor of such property, 
 shall have a lien on the same for his just and reasonable 
 charges for work done and materials furnished, and may re- 
 tain possession of the same until such just and reasonable 
 charges shall be paid ; and if not paid within the space of 
 two months after the work shall be done, such mechanic or 
 other person may proceed to sell the property by him so 
 made, altered or repaired, at public auction, by giving ten 
 days' public notice of such sale by advertising in some news- 
 paper published in the county in which the work was done; 
 or if there be no newspaper published in such county, then 
 by posting up notices of such sale ifik three of the most pub- 
 lic places in the town where such work was done, for ten 
 days previous to such sale, and the proceeds of such sale 
 shall be applied to the discharge of such lien and the cost 
 of keeping and selling such property, and the remainder, 
 
THE ACT, 47 
 
 if any, shall be paid over to the owner thereof. 
 
 SEC. 16. Nothing contained in this Act shall affect any 
 lien heretofore acquired, but the same may be enforced by 
 the provisions of this act, and where suits are now pending, 
 the proceedings after this Act goes into effect may be con- 
 ducted according to this Act. 
 
 SEC. 17. An Act entitled an Act for securing liens of 
 mechanics and others, approved April 27th, 1855 ; an Act 
 entitled an Act for securing liens of mechanics and others, 
 approved April 19th 1856 ; an Act entitled an Act in addi- 
 tion to and explanatory of an Act for securing liens to 
 mechanics and others, approved April 19, 1856, approved 
 March 4th, 1857 ; an Act entitled an Act supplementary to 
 an Act for securing liens to mechanics and others, passed 
 April 19th, 1856, approved March 18th, 1857; an Act en- 
 titled an Act to amend an Act for securing liens'to mechan- 
 ics and others, passed April 19th, 1856, approved April 
 22d, 1858 ; an Act entitled an Act to amend an Act enti- 
 tled an Act for securing liens of mechanics and others, 
 passed April 19th, 1856, approved May 17th, 1861 ; an Act 
 entitled an Act in relation to liens of mechanics and others, 
 approved April 26th, 1862, are hereby repealed. 
 
APPENDIX OF FOKMS. 
 
 No. 1. 
 
 Builder's Contract. 
 
 Articles of Agreement, made this first day of September, in the year 
 one thousand eight hundred and sixty-eight, between A B, of the city 
 and county of San Francisco, party of the first part, and C D, of the 
 same place, of the second part, witnesseth, as follows, viz : 
 
 First The said party of the second part, for and in consideration 
 of the payments hereinafter agreed and covenanted to be made by the 
 said party of the first to the said party of the second part, doth here- 
 by covenant and agree with the said party of the first part, that he 
 shall and will erect and finish the building following, namely : That 
 new building to be erected on the northwest corner of E and F streets, 
 in the city and county of San Francisco, described in the plan, draw- 
 ing and specifications hereunto annexed, and that said building shall 
 be so erected and finished according to the said plan, drawings and 
 specifications hereto annexed, made by G H, architect, which plan ? 
 drawings and specifications, hereto annexed, are signed by the parties 
 hereto, and are referred to by, and form a part of, this agreement. And 
 the said party of the second part hereby covenants with the party of the 
 first part, that he will perform and execute the said work in a good, 
 workmanlike and substantial manner, an4.will find and provide such 
 proper and sufficient materials of all kinds whatsoever as shall be pro- 
 per and sufficient, and as required by said specifications for completing 
 and finishing the foundation, walls, floors, ceilings, roofings and other 
 works of the said building mentioned in the said annexed specifica- 
 tions, and that said work and said materials shall, in every respect, be 
 strictly according to said plans, drawings and specifications, and of the 
 
#ORMS. 49 
 
 kind of workmanship and kind of materials therein mentioned, and 
 none other it being understood that said specifications and drawings 
 are intended to co-operate, so that any works exhibited in the drawings 
 and not mentioned in the specifications, or vice versa, are to be execu- 
 ted the same as if they were mentioned in the specifications and set 
 forth in the drawings according to the true intent and meaning of said 
 drawings and specifications. And the said party of the second part 
 hereby covenants and agrees with the said party of the first part, that 
 he will well and sufficiently erect and finish said building according 
 to the covenants and agreements herein contained, on or before 
 the day of in the year one thousand eight hundred 
 
 and sixty eight. 
 
 Second The said party of the second part is, at his own proper cost 
 and charges, to provide all manner of materials and labor, scaffolding, 
 implements, moulds, models, and cartage of every description, for the 
 due execution of this contract, and to bear all risk or loss by accidents, 
 delays, encroachments, or otherwise, not caused by or through any act 
 of the party of the first part. 
 
 Third Should the party of the first part, at any time during the 
 progress of said work, require any alterations, extra work, deviations 
 or omissions from the work so contracted to be done, he shall be at 
 liberty to do so, and the same shall in no way affect or make void this 
 contract ; but the value thereof will be added to or deducted from the 
 amount to be paid by him by the terms of this contract, as the case 
 may be, according to a fair and reasonable valuation. 
 
 Fourth Should the party of the second part, at any time during 
 the progress of the said work, refuse or neglect to supply a sufficiency 
 of material or workmen so as to render it impracticable to finish said 
 work within the time said party of the second part has by this con- 
 tract covenanted to complete the same, the said party of the first part 
 shall have the power to provide the necessary materials or workmen, 
 or both, after one day's notice in writing being given to the party of 
 the second part to provide the same; and the expense of such supply, 
 by the party of the first part, shall be deducted from the amount to be 
 paid for said work, by said party of the first part. 
 
 Fifth Should any dispute arise concerning the true construction or 
 meaning of the plans, drawings or specifications, the same is hereby 
 submitted to and shall be decided by said architect, and his decision 
 
50 FORMS. 
 
 thereon shall be final ; but should any dispute arise respecting the true 
 value of any extra work or materials, or work or materials omitted, the 
 same shall be valued by two competent persons, one to be nominated 
 by the party of the first part, and the other by the party of the second 
 part; and in case of disagreement between said persons so chosen on 
 said subject matter so submitted, they shall have power to appoint an 
 umpire, whose decision shall be binding on both parties hereto, and no 
 recourse shall be had to law, but such award shall be final and conclu- 
 sive on the matters so submitted. 
 
 Sixth The said party of the first part shall not in any manner be 
 answerable or accountable for any loss or damage that shall or may 
 happen to the said work or any part or parts thereof, respectively, or 
 any of the materials or other things used and employed in finishing and 
 completing the same during the time of said erecting and completing, 
 except that the party of the first part shall be liable for and take all 
 risk by fire. 
 
 Seventh No extra work is to be paid for unless the price has been 
 fixed and agreed upon in writing by the parties hereto, and the work 
 specified, and the agreement made for the same at the time the extra 
 work is done, and no reductions or omissions are to be allowed without 
 the price is fixed by agreement in writing at the time said omissions or 
 reductions are made. 
 
 Eighth There shall be a forfeiture of dollars per day for each and 
 every day over the stated time for the completion herein mentioned, to 
 be deducted out of the last payment. But if the weather is so wet or 
 inclement as to hinder the progress of the work, a reasonable addi- 
 tional time is to be allowed by the party of the first part for the com- 
 pletion of the same. In all cases of extra materials and work done on 
 said job during this contract, then the time expressed above shall not 
 govern, but a reasonable additional time necessary for completing said 
 extras shall be allowed. The nature, extent and price of all extras, as 
 may be agreed upon, are to be entered in a written memorandum to 
 be attached to the contract and signed by the parties hereto, and the 
 same course is to be followed in reference to all omissions or reduc- 
 tions. 
 
 Ninth In consideration of the faithful performance, by the said 
 party of the second part, of the covenants and agreements herein con- 
 tained, on his part to be fulfilled and performed, in the erection and 
 
FOEMS. 51 
 
 finishing of said building, said party of the first part hereby covenants 
 and agrees with the said party of the second part, to pay him therefor 
 the sum of ten thousand dollars, in gold coin of the Government of the 
 United States, and in no other currency to be paid in manner following, 
 viz: (Here specify the various stages of the work at which the different 
 payments shall be made, if the payments are to be made as the work pro- 
 gresses, or if otherwise, then specify the times of payment.) 
 
 Tenth It is hereby agreed upon between the parties hereto, that be- 
 fore any payment is made under this contract, the said party of the 
 second part shall satisfy the said architect that all the materials fur- 
 nished by said party of the second part for the construction of said 
 building have been paid for, and that all work of mechanics, laborers, 
 and others, hired or employed by the said party of the second part, in 
 the construction of said building, have been fully paid, so that no lien 
 can be filed against said building for such materials, mechanical work, 
 or labor, and that no payment shall be made without a certificate be 
 first obtained and signed by said architect, that the said payment is 
 date, according to the terms of this contract. The payment and 
 discharge, by the said party of the second part, of all liens for such 
 material, work and labor, or all such claims as may be made liens on 
 said building, are hereby declared a condition precedent to the making 
 of any payments under this contract, by the party of the first part to 
 the party of the second part. 
 
 IN WITNESS WHEREOF, said parties have hereto set their hands and 
 seals, the day and year first above written. 
 
 [L. 8.] 
 [L. S.] 
 
 Sealed and delivered ) 
 
 in the presence of j 
 
 No. 2. 
 Another Form. 
 
 This agreement, made this day of one thousand 
 
 eight hundred and sixty-eight, by and between A B, of the city and 
 
52 FORMS. 
 
 county of San Francisco, of the first part, and C D, of the same place, 
 of the second part, witnesseth : That the said party of the second 
 part covenants and agrees to and with the said party of the first part, 
 to make, erect and finish, in a good, substantial and workmanlike man- 
 ner, on the land of the said party of the first part, situate on F street^ 
 in the city and county of San Francisco (describe the location of the lot 
 in general terms'), according to the plan and specifications hereto an- 
 nexed, and of the quality of materials and workmanship set forth in 
 said specifications. (If the materials are to be furnished by the party 
 of the first part, say : of such materials as the said party of the first 
 part shall find or provide for the same) ; and the said party of the 
 second part covenants and agrees with the said party of the first part 
 that he will have the said building finished and completed according 
 to said plans and specifications by the day of next. 
 
 And the said party of the first part covenants and agrees to pay unto 
 the said party of the second part, for the same, the sum of dollars, in 
 gold coin of the government of the United States, as follows, viz : The 
 sum of dollars in gold coin in days from this date, and the 
 
 remaining sum of dollars in like gold coin in thirty-one days 
 
 from the^ day of the said dwelling house being completely finished 
 according to said plans and specifications. (If necessary add: And 
 also that said party of the first part will furnish and procure the ne- 
 cessary materials for the said work in such reasonable quantities, and 
 at such reasonable time or times, as the said party of the second part 
 shall or may require.) 
 
 It shall be a condition precedent to any of the foresaid payments, 
 that at the time of such payment there shall be no liens on said build- 
 ing arising out of any claim for work and labor done for, or materials 
 furnished by, any person whatever to said party of the second part, 
 in the construction of said building, or any claims existing arising from 
 such work, labor or materials, and out of which a lien may be obtained 
 by any person or persons on said building and premises for such 
 work, labor or materials. 
 
 IN WITNESS WHEREOF, said parties have hereto set their hands and 
 seals the day and year first above written. 
 
 [L. S.] 
 |L. S.] 
 
 Sealed and delivered ) 
 
 in the presence of j 
 
FOEMS. 53 
 
 No. 3. 
 
 Agreement with a Mason and Plasterer. 
 
 This agreement, made this day of m the year 1868, 
 
 between A B, of, etc., of the first part, and C D, of, etc., of the second 
 part, witnesseth : That the said party of the second part, for and in con- 
 sideration of the payments hereinafter mentioned, promises and agrees 
 to and with the said party of the first part, that he will do and per- 
 form in a good and workmanlike manner, and with materials to be 
 furnished by the said party of the first part, all the mason and lathing 
 and plastering work, to be done in and about the erecting of a new 
 dwelling house, belonging to the party of the first part, situate on E 
 street, in the city and county of San Francisco, (specify generally the 
 description of the lot on which the building is about to be erected), and 
 that according to the plans and specifications hereto annexed ; and also 
 that he will use all proper care in working up the materials to be fur- 
 nished by the said party of the first part as aforesaid, to the best 
 advantage for the said party of the first part, and that he will complete 
 the said work on or before the day of next. 
 
 And the said party of the first part, in consideration of the premises, 
 hereby agrees to furnish and provide good and sufficient materials for 
 the said work at such time or times as the said party of the second 
 part may request, and to pay said party of the second part for said 
 work, when finished and completed, the sum of dollars, in gold 
 
 coin of the Government of the United States. (If the work is to be 
 paid for by the yard or other measurement, and at certain stages of the 
 work, as it progresses, then so state as the agreement in such respects may 
 be.) It is expressly understood and agreed upon between the parties 
 hereto, that no payment shall be made by the party of the first part 
 under this agreement, at the times above specified for the payment 
 thereof, unless all claims against the said party of the second part, for 
 any labor or mechanical work done for him by persons in his employ, 
 in doing and performing the work under this contract, or any part 
 thereof, are fully paid off and discharged ; and that no work or labor 
 performed by such persons, on said building, out of which could arise 
 a claim for a lien under the Act of the Legislature of the State of 
 California, entitled " An Act for Securing Liens of Mechanics and 
 others," approved 30th March, 1868, shall remain unsatisfied. (Or in- 
 
54 FOKMS. 
 
 stead of the above insert as follows : Before any payment is made 
 under this contract, the said party of the second part shall prove to 
 the satisfaction of G H, who is hereby mutually selected and agreed 
 upon for that purpose, that no claim or demand is outstanding for any 
 mechanical work or labor performed on, or materials furnished for 
 said work by any person or persons in the employ of said party of the 
 second part, and out of which a lein could be claimed or maintained 
 against the said building and premises ; and said payments shall not be 
 made until the said party of the second part furnishes the said party 
 of the first part, the said G H's certificate in writing to that effect.) 
 
 IN WITNESS WHEREOF, said parties have hereto set their hands and 
 seals the day and year first above written. 
 
 Sealed and delivered 
 in the presence of 
 
 No. 4, 
 
 Bond for the Performance of Building Contract. 
 
 Know all men by these presents, that we, A B, C D, and E F, all 
 of the city and county of San Francisco, are held and firmly bound 
 unto G H, of the same place, in the sum of ten thousand dollars (or 
 such other sum as may cover all possible damages), lawful money of the 
 United States, to be paid to the said G H, his executors, administra- 
 tors or assigns ; for which payment, well and truly to be made, we bind 
 ourselves, our and each of our neirs, executors, and administrators, 
 jointly and severally firmly by these presents. 
 
 Sealed with our seals and dated this day of one thou- 
 
 sand eight hundred and sixty-eight. 
 
 The condition of the above obligation is such, that whereas the said 
 A B did at the date hereof enter into a contract in writing with the 
 said G H, by which the said A B agreed to erect a certain dwelling 
 house for the said G H, and fully fulfil and perform all the covenants, 
 
FORMS. 55 
 
 agreements and stipulations therein contained on the part of said A B, 
 to be so fulfilled and performed, a copy of which agreement is hereto 
 annexed. 
 
 Now, therefore, if the above bounden A B, his executors, administra- 
 tors or assigns, shall in all things stand to, abide by, and well and 
 truly keep and perform the covenants, conditions and agreements in 
 the within written instrument (if the bond is endorsed on the agree- 
 ment itself, or in the instrument of which the annexed is a copy) con- 
 tained on his part, to be kept and performed at the time and in the 
 manner and form therein specified, then the above obligation shall be 
 
 void ; else to remain in full force and virtue. 
 
 A B. [L. S.] 
 C D. [L. S.] 
 E F. [L. S.] 
 
 Sealed and delivered ) 
 
 in the presence of j 
 
 No. 5. 
 
 Statement of Builder made to Architect, Referee, or 
 Party as to Liens. 
 
 I, A B, the party of the second part, in the written agreement (or 
 in the agreement annexed, or in the agreement of which the within is 
 a copy) named, having, as I claim, performed so much of said agree- 
 ment as to entitle me to the first (or second or third, as the case may be) 
 payment in the within agreement, covenanted by the party of the first 
 part therein to be paid to me, do hereby declare that I do not owe 
 nor am I liable to any person or persons, for any work or labor done or 
 performed for me in the said work so far as it has progressed, nor for 
 any materials furnished to me by any person or persons whatever, in 
 carrying on the said work, so far as it has progressed, and that I have 
 incurred no debt whatever in the performance of said contract, which 
 can at any time, by the laws of the State of California, be made a lien 
 on the building or premises in said agreement described. This state- 
 
56 FOKMS. 
 
 ment is made to enable me to obtain the said payment, which I claim 
 to be now due under said agreement. 
 
 Witness my hand this day of 1868. 
 
 No. 6. 
 
 Notice, under Sec. 4, by the Owner of the Land that he 
 will not be Liable for Improvement. 
 
 To all whom it may concern 
 
 Take notice, that whereas I, A B, am the owner of the following 
 described lot of land in the city and county of San Francisco, viz : 
 (Here describe the land, and if the person giving notice merely claims an 
 interest in the land instead of the words " am the owner of," say "claim 
 an interest in;") and that I have within the last three days obtained 
 knowledge that the following construction (or alteration, or repair as 
 the case may be) has been commenced to be made (or " has been 
 made" as the case may be, or that it is intended, or in contemplation to 
 make the following construction, alteration or repair), viz : (Here de- 
 scribe it.) I hereby declare I will not be responsible for such construc- 
 tion (alteration or repair, as the case may be) ; that the same is done 
 without my consent, authority, license or permission, and that I will 
 oppose any attempt to make the same a lien upon the land and premi- 
 ses above described. 
 
 A B. 
 
 Dated San Francisco, ) 
 day of 1868. J 
 
 Claim of Lien by Contractor. 
 
 State of California, City and County of San Francisco. 
 A B 
 
 vs. 
 
 C D. 
 Notice is hereby given to all whom it may concern, that I, A B, of the 
 
FORMS. 57 
 
 city and county of San Francisco, have performed work and labor and 
 furnished materials for the construction of the building erected and 
 now being upon the land and premises hereinafter more particularly 
 described as a contractor. 
 
 That it is my desire to avail myself of the benefits of the Act of th e 
 Legislature of the State of California, entitled " An Act for Securing 
 Liens of Mechanics and others," approved 30th of March, 1868 ; and 
 that it is my intention to claim a lien upon the premises aforesaid and 
 hereinafter described, and to claim and hold such lien not only on said 
 building or superstructure so erected, but also upon the land upon 
 which the same is so erected, and with a convenient space around the 
 same, or so much as may be required for the convenient use and occu- 
 pation thereof, or upon such interest as C D, the person with whom I 
 contracted, had in said premises, on the day of 1868, 
 
 when said work commenced and when said materials were begun by 
 me to be furnished for the construction of said building. 
 
 That the following is a true statement of my demand, for which I 
 claim such lien, namely : On the day of 1868, I entered 
 into a written contract with said C D, to erect a dwelling house on 
 said premises, and furnish the materials therefor, according to certain 
 plans and specifications annexed to said written agreement (or state gener- 
 ally what the work was that was to be done}. That said work was com- 
 menced and said materials begun to be furnished on the day of 
 1868. That said work has been completed according to said contract, 
 and that sixty days have not elapsed since the completion of said work 
 or building so contracted to be by me erected, and the completion of 
 my said contract. That the price agreed to be paid to me, by said 
 C D, under said contract, for said work, was the sum of ten thousand 
 dollars, $10,000.00 
 
 That there is besides due to me, for extra work and extra 
 materials, done and furnished for said superstructure, 
 at the instance and request of said C D, the sum of 
 two thousand dollars, $2,000.00 
 
 The total amount for said work and materials being $12,000.00 
 twelve thousand dollars, for which I have since the 
 entering into said contract, received, at sundry times, 
 from the said C D, to apply on the same, the sum of 
 
 f^ or 
 
 SJ-IITI. 
 
 
 
58 FOEMS. 
 
 five thousand five hundred dollars, $5,500.00 
 
 $6,500.00 
 
 Leaving a balance now due to me on said work, from said C D, of 
 six thousand five hundred dollars ; and that the said balance is justly 
 due to me on the same, after deducting all just credits and offsets. 
 That C D is the name of the owner of said premises before mentioned 
 and hereinafter particularly described, and that he was the person who 
 employed me, and with whom I entered into said contract to do said 
 work and furnish said materials, as aforesaid. That the following is a 
 description of the property to be charged with such lien, viz : That 
 piece or parcel of land situate, lying and being in the city and county 
 of San Francisco, and State of California, bounded and described as 
 follows, viz : Beginning at a point in the east line of B street, one 
 hundred feet; south from the intersection of said east line of B street 
 with the south line of A street ; running thence south along the said 
 east line of B street twenty-five feet ; thence easterly at right angles 
 to the east line of B street, one hundred feet ; thence northerly at right 
 angles twenty-five feet, and thence at right angles westerly one hun- 
 dred feet to the place of beginning, with the said building, and all 
 other appurtenances thereto belonging. 
 
 A B. 
 
 San Francisco, day of ) 
 
 1868. 
 
 City and County of San Francisco, ss : 
 
 A B being duly sworn, deposes and says, that he is the claimant in 
 the above claim and notice of intention to hold a lien named ; that he 
 has read the said claim and notice by him subscribed, and knows the 
 contents thereof, and that the same iyin all respects just and true, and 
 that it contains a just and true statement of the demand due to him 
 after deducting all just credits and offsets. 
 
 A B. 
 
 Sworn to before me this 
 
 day of 1868. 
 
 [L. S.] C D, Notary Public. 
 
FOKMS. 59 
 
 No. 8. 
 
 Verification of Claim by Agent. 
 
 City and County of San Francisco, ss : 
 
 E F being duly sworn, deposes and says, that he is the clerk and 
 book-keeper of A B, the claimant named in the above claim and notice 
 of intention to hold a lien, and is authorized and empowered by said 
 A B, as his said clerk and agent, to prepare and file the above claim 
 and notice ; that deponent has read said claim and notice, and knows 
 the contents thereof, and that the same is in all respects just and true, 
 and contains a just and true statement of the demand due to said A 
 B, after deducting all just credits and offsets. That deponent has 
 personal knowledge of all the facts stated and set forth in said claim 
 and notice, and knows the same to be true, and that the reason why 
 this affidavit is made by this deponent and not by said A B, is that at 
 the making thereof, the said A B is temporarily absent from said city 
 and county of San Francisco. 
 
 E F. 
 
 Sworn to before me this ") 
 day of 1868. j 
 
 [L. S.] C D, Notary Public. 
 
 No. 9. 
 
 Claim of Lien by Material Man. 
 
 Notice is hereby given to all whom it may concern, that I, A B, of 
 the city and county of San Francisco, have furnished materials for the 
 construction of the building erected and now being upon the land and 
 premises hereinafter more particularly described. 
 
 That it is my desire to avail myself of the benefits of the Act of the 
 Legislature of the State of California, entitled " An Act for Securing 
 Liens of Mechanics and others," approved 30th of March, 1868 ; antf 
 that it is my intention to claim a lien upon the premises aforesaid and 
 
60 FORMS. 
 
 hereinafter described, and to claim and hold such lien, not only on said 
 building or superstructure so erected, but also upon the land upon 
 which the same is erected, with a convenient space about the same, or 
 so much as may be required for the convenient use and occupation 
 thereof, or as C D, the owner (or reputed owner) of said land and 
 premises, had on the day of 1868, when said materials 
 
 were commenced by me to be furnished for said building or super- 
 structure. 
 
 That E F is the person by whom I was employed to furnish the said 
 materials for said construction, and to whom, at his special instance 
 and request, I did furnish said materials, the said E F being engaged 
 as contractor, under said C D, in erecting said building, and said C 
 D is the owner of said land, building and premises. 
 
 That the following is a true statement of my demand, for which 1 
 claim such lien, namely : Materials, to wit : Lumber to the amount 
 and of the value of one thousand dollars, which said lumber was fur- 
 nished by me to the said E F, to be used, and was in fact used, in the 
 construction of the said building. That the said E F has paid to me, 
 upon account of said lumber so furnished, the sum of five hundred 
 dollars, and that there is now due to me from said E F therefor, the 
 sum of five hundred dollars, after deducting all just credits and offsets. 
 That the said lumber was commenced by me to be furnished, for said 
 construction, on the day of 1868, and was continued so to be 
 furnished up to and including the day of 1868, and that 
 
 thirty days have not elapsed since the completion of said building. 
 That the following is a description of the property to be charged with 
 said lien, viz : (Here describe property as fully as in No. 7, and add 
 the affidavit of verification.) 
 
 No. 10. 
 
 Claim of Lien by Journeyman Carpenter. 
 
 To all whom it may concern : 
 Take notice, that I, A B, of the city and county of San Francisco, 
 
FORMS. 61 
 
 have performed labor in the construction (or repair or alteration, as the 
 case may be) of the building and superstructure, erected and now 
 being upon the land and premises hereinafter more particularly de- 
 scribed, as a journeyman carpenter and joiner. 
 
 That it is my desire to avail myself of the benefits of the Act of the 
 State of California, entitled " An Act for Securing Liens of Mechanics 
 and others," approved 30th March, 1868, and it is my intention to claim 
 a lien for said labor upon the premises aforesaid and hereinafter de- 
 scribed ; and that it is my intention to claim and hold such lien, not 
 only upon the said building and superstructure, but also upon the 
 land upon which the same are erected, together with a convenient space 
 around the same, or so much as may be required for the convenient 
 use and occupation thereof. 
 
 That the following is a true statement of my demand on which I 
 found said claim for a lien, namely : 
 
 Thirty days work on said building or superstructure, as a journey- 
 man carpenter and joiner, commencing on the day of 1868, 
 and ending on the day of 1868, and performed between 
 said two dates, at the rate of five dollars per day, payable in gold coin 
 of the United States ; the amount of said thirty days work at said rate 
 being one hundred and fifty dollars, on which I have been paid the 
 sum of seventy-five dollars, leaving due to me for said work a 
 balance of seventy -five dollars, after deducting all just credits and offsets. 
 That the name of the owner (or reputed owner) of said building or 
 superstructure, and of the premises hereinafter described, is C D. That 
 the name of the person by whom I was employed to do said carpenter 
 and joiner work on said building is E F, who was the contractor (or 
 the sub-contractor under the principal contractor) employed by said C 
 D in the erection (or repair or alteration, as the case may be) of said 
 building and superstructure ; that thiry days have not elapsed since 
 the completion of said building or superstructure, and said sum of 
 seventy-five dollars remains due and unpaid. That the following is a 
 description of the property which I seek to charge with said lien, viz : 
 (Here insert description and then follow with affidavit of verification as 
 before.) 
 
62 FOEMS. 
 
 No. 11. 
 
 Claim of Lien by Laborer on Two Contiguous Buildings 
 Under Section 7. 
 
 To all whom it may concern : 
 
 Take notice that I, A B, of the city and county of San Francisco^ 
 have performed labor in the construction of the two contiguous and 
 adjoining buildings, erected and now being upon the land and premises 
 hereinafter more particularly described, as a hodman in carrying bricks 
 and mortar to said building, and attending as such on the masons and 
 bricklayers while engaged in the erection of said buildings (or whatever 
 else the work may be.) 
 
 That it is my desire to avail myself of the benefits of the Act, etc., 
 etc. (describe the intention to claim lien as in previous forms). 
 
 That the following is a true statement of my demand on which I 
 found my said claim for a lien, namely : 
 
 I performed labor of the kind above described on said two contigu- 
 ous and adjoining houses and buildings for the period of thirty days, 
 at the rate of three dollars per day, payable in United States gold 
 coin, making for said work, on said two buildings, the sum of ninety 
 dollars in all ; that twenty days of said labor, making the sum of sixty 
 dollars, was performed on the south house or building, on said premi- 
 ses, and ten days of said labor, making the sum of thirty dollars, on 
 the north house or building, on said premises adjoining and contiguous 
 to said south house. That said labor was performed between the 
 day of 1868, and the day of 1868. That no part 
 
 of said sum of ninety dollars has been to me paid, and the said sum of 
 ninety dollars, for the work and labor aforesaid, is justly due to me 
 after deducting all just credits and offsets. That the name of the 
 owner of said contiguous and adjoinihg houses and the premises here- 
 inafter described, is C D. That the name of the person by whom I 
 was employed to do said labor on said buildings, is E F, who was the 
 contractor employed by said C D in the erection of said contiguous 
 and adjoining buildings or houses ; that thirty days have not elapsed 
 since the completion of said contiguous or adjoining buildings or 
 houses, or either of them, and no part of said sum of ninety dollars 
 has been to me paid, but the whole thereof remains justly due and un- 
 paid as aforesaid. That the following is a correct description of the 
 
oar 
 
 FOKMS. 63 
 
 premises which I seek to charge with said lien : (Here insert descrip- 
 tion, and then follow with the affidavit of verification as in previous 
 forms. This form can be varied so as to be adapted to any other kind of 
 work, or for materials furnished.} 
 
 No. 12. 
 
 Claim of Lien by Sub-Contractor. 
 
 To all whom it may concern : 
 
 Take notice that I, A B, of the city and county of San Francisco* 
 have furnished certain materials and performed certain mechanical 
 work and labor, which materials and work and labor were used in the 
 construction, painting and finishing of a certain building or superstruc- 
 ture, in the city and county of San Francisco, hereinafter more 
 particularly described ; and that the said materials and work consisted 
 of painting materials and work and labor in painting said building or 
 superstructure, as more particularly hereinafter mentioned. 
 
 That it is my desire to avail myself of the benefits of the Act, etc., 
 etc. (Describe the intention to claim lien as in previous forms.) 
 
 That the following is a true statement of my demand on which I 
 found said claim for a lien : On the day of 1868, 1, as a sub- 
 contractor, entered into a contract in writing with one C D, who was 
 the contractor employed by E F, the owner of said building and premi- 
 ses, to erect said building on said premises, by which contract so en- 
 tered into between said C D and myself, I contracted with said C D, to 
 do and perform all the painting requisite and necessary to be done on 
 said building, according to the plans and specifications specified in the 
 contract in writing, between said C D and said E F for the erection of 
 said building, and furnish all the materials necessary for the same (or 
 whatever the contract was, setting it forth particularly, and the time the 
 payments became due), for which the said C D, by the terms of his said 
 contract with me, was to pay to me the sum of eight hundred dollars, 
 in United States gold coin. That I have fully completed my said con- 
 
64 FORMS. 
 
 tract, and said C D has paid me thereon the sum of five hundred dol- 
 lars, and that there remains due to me, by the terms of said contract, 
 for said work and materials, done and furnished, under said contract, 
 the just and full sum of three hundred dollars, after deducting all just 
 credits and offsets. 
 
 That E F is the owner of said building and the premises hereinafter 
 described, and said C D, the contractor under said E F, is the person 
 who employed me as sub-contractor, to do and perform said painting, 
 and furnish said materials therefor, and with whom I entered into the 
 contract aforesaid, for such painting and materials. That thirty days 
 have not elapsed since the completion of said building or superstruc- 
 ture, and said sum of three hundred dollars remains due to me and un- 
 paid. That the following is a description of the property which I seek 
 to charge with said lien, viz : (Here insert description and then follow 
 with affidavit of verification as before.') 
 
 No. 13. 
 
 Claim of Lien by a Miner. 
 
 NEVADA COUNTY, ss : 
 
 To all whom it may concern : Take notice that I, A B, of Grass 
 Valley, in said county, have performed labor as a miner in a certain 
 mine, commonly called the El Dorado Mine, situate at in said 
 
 county, and hereinafter more particularly described. 
 
 That for my said labor, it is my Desire to avail myself of the benefit, 
 etc., etc. (reciting the Act as in the foregoing notices'), and that it is my 
 intention to claim a lien upon said mine and its appurtenances, as here- 
 inafter described, and sufficient space around the same, or so much 
 thereof as may be required for the convenient working, use and occu- 
 pation of said mine. 
 
 That the following is a true statement of my demand for such labor, 
 under which I claim such lien, viz : 
 
 Thirty days labor in said mine, as a miner in (here describe the work 
 
FOKMS. 65 
 
 generally, showing it is labor performed in a mine). That the value of 
 said labor (or the amount agreed to be paid for said labor) is five dol- 
 lars per day, making the whole amount due for said labor one hundred 
 and fifty dollars. That said labor commenced to be performed by me 
 on the day of 1868, and ended on the day of 
 
 1868, and was done and performed within the said two dates. 
 
 That the name of the owner of said mine is " The El Dorado Mining 
 Company," a mining corporation created under the laws of this State, 
 and the person by whom I was employed to do the said labor was C 
 D, the superintendent of said mine, duly appointed such by said cor- 
 poration, and having authority from said corporation to employ me in 
 performing the labor aforesaid. 
 
 That no part of my said demand has been paid, and there remains 
 due to me therefor, the said sum of one hundred and fifty dollars, after 
 deducting all just credits and offsets. That thirty days have not ex- 
 pired since the performance by me of said labor in said mine. That the 
 following is a description of the said mine and property on which I 
 claim a lien as aforesaid, viz : (Here describe the mine, showing the 
 mining district in which it is located, the number of feet of ground over 
 which the mine extends and which it includes, all which will generally be 
 found in the deed or claim recorded in the office of the District Recorder, 
 and then close with the usual verification. This form can be changed so 
 as to be adapted to the claim of a contractor for excavating a mine, or 
 for repairing a mine, or for erecting an aqueduct leading to a mine, or 
 excavating a ditch or canal leading to a mine, excavating a tunnel or 
 other work connected with a mine. It is unnecessary to multiply forms 
 on the subject of mines or mills. The subject itself will suggest the pro- 
 per form taken in connection with the forms already given.) 
 
 No. 14. 
 
 Claim of Lien for Grading or Improving a Town or City Lot 
 Under Section 9. 
 
 CITY AND COUNTY OF SAN FRANCISCO, ss : 
 
 To all whom it may concern : Take notice that I, A B, of the city 
 
66 FOKMS. 
 
 and county of San Francisco, have performed labor and furnished 
 materials in filling in and grading a certain city lot in the incorporated 
 city of San Francisco aforesaid, and hereinafter more particularly 
 described. 
 
 That it is my desire to avail myself of the benefits of the Act, etc. 
 etc. (describing the Act as in foregoing forms), and that to secure me 
 payment for my said labor and materials, it is my intention to claim a 
 lien upon the whole of said lot, more fully and particularly hereinafter 
 described. 
 
 That the following is a true statement of my demand for such labor 
 and materials under which I claim said lien, namely : On the day 
 
 of 1868, 1 entered into a contract in writing with C D, to fill in 
 
 and grade said lot, and that I was by said contract, to (here describe 
 generally what A B was to do by the terms of the contract and what the 
 particular improvement was he was to execute, showing it was either gra~ 
 ding, filling in, o? otherwise improving the lot or the street in front of it 
 or adjoining it.) That by said contract, I was to be paid by C D, for 
 said work, labor and materials, when the same was completed, the sum 
 of one thousand dollars in United States gold coin (or that he was to 
 be paid so much afoot, and state what the total amount of the work is so 
 calculated.) 
 
 That I commenced the said work on the day of 1868, 
 
 and completed the same on the day of and that thirty 
 
 days have not expired since the completion of the said work by me. 
 That there is due to me for said work, labor and materials, the just and 
 full sum of one thousand dollars, and that said sum of one thousand 
 dollars is so due to me after deducting all just credits and offsets. 
 That said C D is the owner of said city lot, and he is the person by 
 whom 1 was so employed, and for whom and to whom I did said labor 
 and furnished said materials as aforesaid. That the following is a de- 
 scription of the lot of land on which I made said improvement and did 
 such work and labor, and for which I furnished said materials, viz : 
 That lot of land in the city and county of San Francisco, State of 
 California, bounded and described as follows, viz : Commencing at the 
 intersection of the south line of B street with the east line of A street ; 
 thence running south along the east line of A street one hundred feet; 
 thence at right angles easterly and parallel with B street, one hundred 
 and fifty feet ; thence at right angles northerly and parallel with A 
 
FOKMS. 67 
 
 street one hundred feet, to the southerly line of B street, and thence 
 westerly along the southerly line of B street one hundred and fifty 
 feet, to the place of beginning (and add affidavit of verification). 
 
 No. 15. 
 
 Complaint on a Lien Claimed by Material Man. 
 
 In the District Court of the Judicial District of the State of 
 
 California in and for the city and county of San Francisco. 
 
 JOHN BROWN, 
 
 Plaintiff, 
 vs. 
 
 JOHN SMITH, 
 WILLIAM JONES, 
 GEORGE MARTIN and 
 RICHARD WILSON, 
 Defendants. 
 
 State of California, City and County of San Francisco, ss : 
 
 John Brown, plaintiff in the above entitled action, by A B, his attor- 
 ney, complains of the above named defendants, John Smith, William 
 Jones, George Martin and Richard Wilson, and for cause of action, 
 shows to the Court as follows, viz : 
 
 That the defendant, John Smith, was at the time of the accruing of 
 the lien of the plaintiff after mentioned, and since hitherto, has been 
 the owner in fee of the following described piece or parcel of land 
 situate, lying and being in the city and county of San Francisco, and 
 bounded and described as follows, viz : Commencing at the intersec- 
 tion of the south line of A street with the east line of B street ; 
 thence running south along the east line of B street twenty-five feet ; 
 thence east at right angles and parallel with A street one hundred 
 feet; thence north at right angles and parallel with B street twenty- 
 five feet, to the south line of A street ; thence west along the south 
 line of A street to the place of beginning, with the appurtenances 
 thereto belonging. 
 
68 FORMS. 
 
 That on the day of 1868, the said defendant, John 
 
 Smith, entered into an agreement, in writing, with the defendant, 
 William Jones, at said city and county, by which the said William 
 Jones, for certain considerations therein expressed, agreed to erect, for 
 said John Smith, on the premises above described, a certain building 
 or dwelling house, of the dimensions in the manner and of the 
 materials in said written contract expressed. 
 
 That the said Jones, in pursuance of the said agreement, went on 
 and finished and completed said building or dwelling house, on or 
 about the day of 1868, and said building or dwelling 
 
 house is erected on said above described land, and within the bounda- 
 ries thereof, as above described and set forth. 
 
 That at sundry times between the day of 1868, and the 
 
 day of 1868, and while the said building or dwelling- 
 
 house was in progress of erection by the said defendant Jones, under 
 his said contract with the said defendant Smith, the said plaintiff did, 
 at the special instance and request of the said defendant William Jones, 
 furnish, sell and deliver to said Jones a large quantity of lumber, and 
 materials for the erection and construction of the said building so con- 
 tracted by him with said defendant Smith, to be erected as aforesaid, 
 and that the said lumber and materials were furnished by this plaintiff 
 for, and to be used, and were so used, by. said Jones in the erection of 
 the said building or dwelling house ; that said lumber and materials 
 were commenced to be furnished by this plaintiff, to said defendant 
 Jones, for the purpose aforesaid, on the day of 1868. 
 
 That the said lumber and materials so furnished, as aforesaid, were 
 of great value, to wit : of the value of one thousand dollars; and that 
 of the said amount, there has been paid to this plaintiff the sum of five 
 hundred dollars, and there remains due to the said plaintiff, for the 
 same, the sum of five hundred dollars, no part thereof having been 
 paid by said defendants Smith or Jones. 
 
 That within thirty days after the completion of the said house or 
 building, and on the day of 1868, the said sum of $500, 
 
 still remaining due to said plaintiff, the said plaintiff did file, with the 
 County Recorder, of the said city and county of San Francisco, a claim 
 in writing, containing a true statement of his said plaintiff's, said de- 
 mand for said lumber and materials, after deducting all just credits and 
 offsets, and showing that said $500 was justly due to him, said plaintiff, 
 
FOEMS. 69 
 
 therefor. Also, setting forth in said claim the name of the said defen- 
 dant, John Smith, as the owner of the said property above described, 
 and designating him as such, and also the name of the said William 
 Jones as the person to whom the said plaintiff furnished the said 
 materials, and by whom this plaintiff was employed so to furnish the 
 same, and also a description of the above described real estate, build- 
 ing or dwelling house and premises, which the said plaintiff seeks to 
 charge with a lien for said claim, and which description of said pro- 
 perty, in said claim, was sufficient for the identification of said pro- 
 perty ; which claim, so filed with said Recorder, as aforesaid, was duly 
 verified by the oath of this plaintiff, in writing attached to said claim, 
 and filed therewith, and which claim and oath were thereupon duly re- 
 corded by said Recorder, in a book kept by him for that purpose. 
 
 That by the premises aforesaid, the said plaintiff became entitled to 
 the benefit of, and to have a lien upon, the said building and dwelling 
 house, and the land upon which the same was erected and constructed, 
 or such a convenient part of said land around said building as is re- 
 quired for the convenient use and occupation thereof; and the said 
 plaintiff avers that the whole of said land is necessary for that pur- 
 pose ; and the said plaintiff further claims that said lien, attached to 
 said property, on the day of 1868, the day that said 
 
 materials were so commenced by this plaintiff to be furnished for the 
 erection of said building as aforesaid. 
 
 The said plaintiff further shows to the Court, on information and 
 belief, that the defendant, George Martin, also claims a lien upon said 
 property, for work and labor performed by him in the construction and 
 erection of said building or dwelling house, to the amount of fifty 
 dollars, and that his claim for that purpose has been filed and recorded 
 in said Recorder's Office, and remains unsatisfied of record in said office ; 
 but whether the same is a good and sufficient claim and lien upon said 
 property, the said plaintiff has no knowledge, information or belief. 
 
 The said plaintiff further shows, that since the creation and attaching 
 of his, said plaintiff's, lien, as aforesaid, the said defendant, John Smith, 
 has made and executed to the defendant Richard Wilson, a mortgage 
 on the said premises, to secure the payment of the sum of one thousand 
 dollars to said Wilson, in manner as in said mortgage specified, which 
 mortgage is also recorded in said Recorder's Office, and remains un- 
 satisfied of record. 
 
O FOKMS. 
 
 The said plaintiff further shows, that the said William Jones, as con- 
 tractor under said John Smith, has also filed a claim for lien on said 
 property, in said Recorder's Office, by which he claims the sum of 
 two thousand dollars as due to him from said defendant, John Smith, 
 for the erection of said building under said contract. 
 
 Wherefore the plaintiff prays judgment of this Court, and that it 
 may be decreed that the said defendant Jones is indebted to him in the 
 sum of five hundred dollars for the lumber and materials so furnished, 
 as aforesaid ; that the said plaintiff is entitled to have a lien upon the 
 aforesaid land and premises, for the said amount, and that said lien be 
 adjudged to attach at the said time of commencing to furnish said 
 lumber and materials ; that the rights and interests of the said defen- 
 dants Jones, Martin and Wilson, under their respective claims of lien 
 and mortgage respectively, above set forth, be ascertained and de- 
 termined. That this Court adjudge and determine how much of said 
 land is necessary for the convenient use and occupation of said dwelling 
 house, and having so determined, then that this Court order and direct 
 a sale of said premises by the Sheriff of the city and county of San 
 Francisco, in the manner prescribed by law, and direct said Sheriff to 
 make application of the proceeds of said sale as follows, to wit : 
 
 First To the payment of all the costs of this action and the ex- 
 penses of said sale. 
 
 Second To the payment of the plaintiff of his said demand, and 
 Ulso the payment of the demand, if any, found due the said defendant, 
 George Martin, on his claim aforesaid. 
 
 Third To the payment of the said defendant, William Jones, the 
 original contractor of the amount, which may be found due to him on 
 his said claim. 
 
 Fourth To the payment of the said Richard Wilson on his mort- 
 gage aforesaid, and the remainder to the defendant, John Smith ; and 
 if the amount realized from said sale be not sufficient to pay said 
 demands in their order, as aforesaid, then that the same be paid pro 
 rata, and in the order and manner provided for by an Act of the 
 Legislature of the State of California, entitled " An Act for Securing 
 Liens of Mechanics and others," approved 30th March, 1868. That in 
 case said proceeds are insufficient to pay said plaintiff his said demand, 
 then that he have execution against said William Jones for the defici- 
 ency, and that the said defendants and all persons claiming by, through 
 
FORMS. 71 
 
 or under them, may be barred or foreclosed of all right, title, claim, 
 lien, equity of redemption or interest in and to said premises ; or that; 
 the plaintiff may have such other further or different relief in the 
 premises as to this Court shall seem just, and as shall be agreeable to 
 equity and good conscience. 
 
 A B, Plaintiff's Attorney. 
 
 (Then add the usual verification. The above form may not be ample 
 enough, being drawn only to show the main facts required to be presented 
 in such a complaint. The pleader will, of course, frame the allegations 
 according to the peculiar circumstances of each case.) 
 
 No. 16. 
 
 Form of Summons on the Complaint. 
 
 In the District Court of the Judicial District of the State of 
 
 California, in and for the city and county of San Francisco. 
 
 JOHN BROWN ~) Action brought in the District Court of 
 
 vs. the Judicial District of the State 
 
 of California, and the Complaint filed in 
 the City and County of San Francisco, 
 in the office of the Clerk of said Dis- 
 
 JOHN SMITH, 
 WILLIAM JONES, 
 GEORGB MARTIN and 
 RICHARD WILSON. 
 
 trict Court. 
 
 The People of the State of California send Greeting to John Smith, 
 William Jones, George Martin and Richard Wilson. 
 
 You are hereby required to appear in an action brought against you 
 by the above named plaintiff, in the District Court of the Judicial 
 District of the State of California, in and for the city and county of 
 San Francisco, and to answer the complaint filed therein (a copy of 
 which accompanies this Summons), within ten days (exclusive of the 
 day of service), after the service on you of this summons if served 
 within this county; if served out of this county, but within this Judicial 
 District, within twenty days ; or if served out of said District, then 
 
72 FOEMS. 
 
 within forty days or judgment by default will be taken against you. 
 
 The said action is brought to obtain a decree of this Court for the 
 foreclosure of a certain lien described in the complaint, on file in this 
 action, obtained by the plaintiff on a dwelling house and the lot of 
 land on which the same is erected, situate at the southeast corner of 
 A and B streets, in the city and county of San Francisco, and which, 
 land and premises are more particularly described in said complaint, 
 which lien is for the sum of five hundred dollars, for lumber and 
 materials claimed by said plaintiff to have been furnished by him 
 in the construction of said dwelling house, erected by the defendant 
 Jones, under a contract with the defendant Smith, to have the rights of 
 the other incumbrancers and lien-holders settled ; and that the premises 
 on which said liens and incumbrances attach, may be sold, and the pro- 
 ceeds applied to the payment of said plaintiff's said lien and the other 
 liens and incumbrances, as the law directs ; and in case such proceeds 
 are not sufficient to pay the same, then that they may be distributed 
 as the law directs ; and that said plaintiff have execution against said 
 defendant Jones for any balance remaining due, and also that the said 
 defendants, and all persons claiming by, through or under them, may 
 be barred and foreclosed of all right, title, claim, lien, equity of redemp- 
 tion and interest in and to said premises, and for other and further 
 relief. 
 
 And if you fail to appear and answer the said complaint, as above 
 required, the plaintiff will take default against you, and apply to the 
 Court for the relief demanded in the Complaint. 
 
 Given under my hand and the Seal of the District Court of the 
 Judicial District, this day of in the year of our 
 
 Lord one thousand eight hundred and sixty. 
 
 Clerk. 
 Deputy Clerk. 
 
FORMS. 73 
 
 No. 17. 
 
 Affidavit of Non Residence of a Party to Procure Order 
 of Publication. 
 
 In the District Court of the Judicial District, in and 
 
 for the city and county of San Francisco. 
 
 JOHN BROWN 
 
 vs. 
 
 JOHN SMITH, 
 WILLIAM JONES, 
 GEORGE MARTIN and 
 RICHARD WILSON. 
 
 City and County of San Francisco, ss : 
 
 John Brown being duly sworn, deposes and says : that he is the 
 plaintiff in the above entitled action. That said action is brought by 
 this deponent to foreclose a lien which he claims in his favor, on certain 
 real estate, situate in the city and county of San Francisco, belonging 
 to the defendant, John Smith, consisting of a lot of land in said city, 
 with a dwelling house lately erected thereon by the defendant, William 
 Jones, by virtue of a contract entered into between said Smith and 
 Jones for such erection. That said lot of land, dwelling house and 
 premises are more particularly described in the Complaint on file in 
 this action, to which this deponent refers the Court. That the claim of 
 this deponent is for the sum of five hundred dollars, for lumber and 
 materials furnished said Jones, by deponent, at said Jones' request, and 
 used by him in the construction of said building ; and which sum re- 
 maining unpaid, this deponent duly filed a claim of lien on said premi- 
 ses in the Recorder's Office of said city and county, according to and 
 in pursuance of the statute in such case made and provided ; and for the 
 obtaining satisfaction out of said property for said demand, so secured 
 by said lien, this action is brought. That said defendant, George 
 Martin, is made a party defendant, and is a necessary party defendant, 
 because, as deponent avers, said George Martin also performed work 
 and labor on and in the construction of said building ; and for his de- 
 mand for the amount thereof, he filed a claim for a lien on said pro. 
 perty in said Recorder's Office, and same remains of record in said office 
 unsatisfied ; and deponent is informed and believes is in fact unsatisfied, 
 
74 FORMS. 
 
 and that by section ten of the Act of the Legislature of California, 
 entitled " An Act for Securing Liens of Mechanics and others," appro- 
 ved 30th March, 1868, the said George Martin is a necessary party to 
 this action. 
 
 Deponent further says that he is personally acquainted with said 
 George Martin, and that up to the day of the present month the 
 
 said Martin resided, and for years previously had resided, in the said 
 city and county of San Francisco. That on the day of 1868, 
 and before the commencement of this action, the said George Martin 
 removed from this State and went with his family to reside at Virginia 
 City, in the State of Nevada, where said Martin now resides. That 
 deponent heard from said Martin by letter, within the last few days, 
 and knows that he is now residing at Virginia City aforesaid. 
 
 JOHN BROWN. 
 Sworn to before me ) 
 this day of 1868. f 
 [L. S.] C D, Notary Public. 
 
 No. 18. 
 
 Form of Order on Foregoing Affidavit. 
 
 [Title of the Cause.'] 
 
 On reading and riling affidavit of John Brown, the plaintiff in the 
 above entitled action, by which it appears to the satisfaction of the un- 
 dersigned, Judge of said District Court, that the above named defen- 
 dant, George Martin, is a necessary and proper party defendant to the 
 above entitled action, and that personal service of the summons and 
 complaint in this action cannot be made on said George Martin, for 
 the reason that said Martin is not within this State, but resides at 
 Virginia City, in the State of Nevada. On motion of Mr. A B, of 
 counsel for said plaintiff, it is ordered that service be made on said 
 Martin, by the publication of the summons in said action. That said 
 publication be made in the newspaper published and printed in the city 
 
FOEMS. 75 
 
 and county of San Francisco, called " The Daily ," the pub- 
 
 lication in which is deemed, by the undersigned, most likely to give 
 notice to the said defendant, Martin, and that said publication be once 
 a week for four successive weeks. It is also hereby ordered and di- 
 rected, that a copy of said summons and complaint in this action, be 
 forthwith deposited in the postoffice, in the city and county of San 
 Francisco, enclosed in a proper envelope, with the United States post- 
 age chargeable thereon, prepaid and addressed to said George Martin, 
 Virginia City, State of Nevada, his present place of residence. 
 
 C D, District Judge. 
 Dated San Francisco, 
 day of 1868. 
 
 No. 19. 
 
 Order Appointing Attorney to Defend for Absent Defendant. 
 
 [Title of the Cause.'] 
 
 It appearing to the Court that, in pursuance of an order heretofore 
 made in this action, for the publication of the summons in this action, 
 said summons has been duly published, as by the Court in said order 
 directed, and also a copy of said summons and of the complaint in this 
 action, deposited in the postoffice, directed to the non-resident defen- 
 dant, George Martin, at his residence, Virginia City, State of Nevada, 
 in manner as directed by said order; and that on the proper affidavit, 
 now on file, of these facts, the said George Martin's default, for not 
 answering, has been duly entered, and that said Martin has not appeared 
 in this action, the Court hereby appoints R C, Esq., an attorney and 
 counsel of this Court, to appear for the said George Martin in this 
 action, and conduct the proceedings on his part therein. 
 
76 FORMS. 
 
 No. 20. 
 
 Notice of Lis Pendens in this Action Under the 27th 
 Section of the Practice Act. 
 
 In the District Court of the Judicial District of the State of 
 
 California, in and for the city and county of San Francisco. 
 JOHN BROWN 
 
 vs. 
 
 JOHN SMITH, 
 WILLIAM JONES, 
 GEORGE MARTIN and 
 RICHARD WILSON. 
 To all whom it may concern : 
 
 Take notice that the above entitled action is an action com- 
 menced in the District Court of the Judicial District of the 
 State of California, in and for the city and county of San Francisco, 
 and the names of the parties thereto, are correctly above set forth ; that 
 the object of the action is to foreclose a lien obtained by the plaintiff 
 therein, on certain premises hereinafter described, for certain materials 
 furnished by the said plaintiff, in the construction of a building or 
 dwelling house on the premises after mentioned, and the claim for 
 which lien is duly recorded in the office of the Recorder of said city 
 and county of San Francisco, and to have said premises sold to satisfy 
 said lien, and any other liens or incumbrances held by any of the de- 
 fendants on said premises. That the following is a description of the 
 property affected by said action, and which is therein claimed to be 
 sold to satisfy said lien, viz : All that certain piece or parcel of land 
 situate, lying and being in said city and county of San Francisco, 
 bounded and described as follows (here insert description), with the 
 buildings erected thereon, and the appurtenances thereunto belonging. 
 
 A B, Attorney for said Plaintiff. 
 
 Dated San Francisco, 
 this day of 1868. 
 
FORMS. 77 
 
 No. 21. 
 
 Decree in the Cause Setting Forth the Rights of the 
 Respective I Parties. 
 
 JOHN BROWN 
 vs. 
 
 JOHN SMITH, 
 
 And Others. 
 
 This cause having come on to be heard on the pleadings and proofs 
 in this action, and after hearing Mr. A B, of counsel for plaintiff, Mr. 
 C D, of counsel for the defendant, John Smith, Mr. E F, of counsel 
 for the defendants, William Jones and Richard Wilson, and Mr. G H, 
 counsel appointed by the Court to appear for the absent defendant, 
 George Martin, and conduct the proceedings on his part ; and the 
 Court having maturely considered the proofs and allegations of the 
 respective parties, does order, adjudge, decree and determine as fol- 
 lows, viz : That the said plaintiff, by reason of the demand in his 
 complaint, in this action set forth, for materials furnished by him in the 
 erection and construction of the building on the land of the defendant, 
 John Smith, in said complaint, and in this decree hereinafter described, 
 and his filing and recording of his claim, as in said complaint set forth, 
 acquired a lien on said land and premises on the first day of July, 
 1868, and the Court adjudges that there is due to him, from said de. 
 fendant, William Jones, on his said claim, the sum of five hundred 
 dollars. The Court further adjudges to the said plaintiff the costs of 
 his prosecuting this action, and allows as a part of said costs the sum 
 of ten dollars, paid by him for filing and recording his said lien, and 
 also the sum of three hundred dollars, as a reasonable amount for the 
 fees of his attorney and counsel in prosecuting this action, which said 
 two sums, for expenses and fees, together with fifty dollars, as taxed 
 and settled by the clerk of this Court, for said plaintiff's costs and dis- 
 bursements in this action, amount together to the sum of three hun- 
 dred and sixty dollars, and making together, with said sum of five hun- 
 dred dollars, so found due on his said claim, the sum of eight hundred 
 and sixty dollars, for which sum judgment is awarded in favor of said 
 plaintiff against said defendant, William Jones ; and also that the said 
 plaintiff have satisfaction therefor, out of the property, on which he 
 so, as aforesaid, acquired a lien, and hereinafter described. 
 
78 FOKMS. 
 
 The Court further adjudges and decrees, that there is due to the said 
 defendant, George Martin, from the said defendant, William Jones, the 
 sum of fifty dollars on his claim for a lien, set forth in the complaint in 
 this action, for work and labor performed by him in the construction 
 of said building, at the instance and request of said Jones ; and that by 
 reason of his filing and recording said claim, he acquired a lien on said 
 building and premises after mentioned, on the third day of July, 1868, 
 for which sum of fifty dollars, with costs, judgment is hereby ordered 
 in favor of said George Martin, against said William Jones, with his 
 costs by him incurred in this action; and the Court allows, as a part of 
 said costs, the sum f five dollars, paid by him, said Martin, for filing 
 and recording his said lien, and also the sum of one hundred dollars as 
 a reasonable amount for the fees of the attorney and counsel appointed 
 by the Court to conduct the proceedings in this action, on the part of 
 the said George Martin, which several items, for fees and expenses, 
 together with the sum of five dollars for said Martin's costs and dis- 
 bursements, as taxed and settled by the Clerk of this Court, amount to 
 the sum of one hundred and ten dollars, and making together, with 
 the sum of fifty dollars so adjudged to be due to him on his said claim, 
 the sum of one hundred and sixty dollars. 
 
 The Court further adjudges and decrees to be due from the said 
 defendant, John Smith, to the said defendant, William Jones, on 
 the contract for erecting said building on said premises, set forth 
 in the answer of said William Jones, in this action, the sum of 
 two thousand dollars; and that the same became a lien on said 
 building and premises on the 25th day of June, 1868, out of 
 which said sum, as a lien on said premises, is to be deducted the 
 sum of five hundred and fifty dollars, being the amount of the princi- 
 pal of the respective claims of said plaintiff and said defendant, 
 George Martin, leaving, after such application, the sum of one thousand 
 four hundred and fifty dollars due from said John Smith to said Wil- 
 liam Jones, for which judgment is awarded in favor of said defendant, 
 William Jones, against said defendant, John Smith, with his costs by 
 him incurred in this action ; and the Court hereby allows, as a part of 
 said costs, the sum of five dollars, paid by him for filing and recording 
 his said lien in his said answer set forth ; and also the sum of one hun- 
 dred dollars, as a reasonable amount for the fees of his attorney and 
 counsel, in his defending this action and establishing his said claim 
 
FOKMS. 79 
 
 therein, which said several sums, for fees and expenses, together with 
 the sum of ten dollars for his costs and disbursements herein, as taxed 
 and settled by the Clerk of this Court, amount to the sum of one 
 hundred and fifteen dollars, making together, with the sum of one 
 thousand four hundred and fifty dollars adjudged to be due to him on 
 his said claim, the sum of one thousand five hundred and sixty-five 
 dollars ; and it is adjudged and decreed that the said defendant, Wil- 
 liam Jones, have satisfaction thereof, out of the property hereinafter 
 described. 
 
 It is further ordered, adjudged and decreed, that there is due from 
 the defendant, John Smith, to the defendant, Richard Wilson, on the 
 promissory note set forth and described in the answer of said Richard 
 Wilson, the sum of one thousand dollars, principal, and thirty -five dol- 
 lars interest, from the date of said promissory note to the date of this 
 decree, making, together, the sum of one thousand and thirty-five dol- 
 lars, for which sum, with interest from this date, judgment is hereby 
 awarded against the said John Smith, in favor of said defendant, 
 Richard Wilson, together with the sum of ten dollars for his costs and 
 disbursements in this action, as taxed and settled by the Clerk of this 
 Court. It is further adjudged that the said sum, for which judgment 
 is so rendered, is secured by the mortgage on the premises set forth 
 and described in the answer of said defendant, Richard Wilson, in this 
 action, but that the mortgage, so held by said Richard Wilson, is sub- 
 sequent as an incumbrance and lien on said premises to the several 
 liens of the plaintiff, John Brown, and of the defendants, William Jones 
 and George Martin, above set forth. 
 
 It is further ordered, adjudged and decreed, that the whole of 
 the piece or parcel of land hereinafter described, is required and is re- 
 quisite and necessary for the convenient use and occupation of the 
 dwelling house erected thereon by the said William Jones, under his 
 contract with the defendant, John Smith, in the pleadings in this action 
 set forth, and in the erection of which the demands of said John 
 Brown, William Jones and George Martin, adjudged by this decree to 
 liens on said property, arose. 
 
 It is further adjudged and decreed, that the said premises described 
 in the complaint in this action, and as hereinafter set forth, be sold at 
 public auction in the city and county of San Francisco, -by the Sheriff 
 of said city and county ; that the said Sheriff give public notice of the 
 
80 FOEMS. 
 
 time and place of said sale, according to law and the practice of this 
 Court ; that either or any of the parties to this action may purchase 
 at said sale ; that out of the moneys arising from such sale, after de- 
 ducting his fees and expenses on such sale, and any liens upon said 
 premises so sold at the time of such sale for taxes or assessments, the 
 said Sheriff pay 
 
 First The said John Brown and the said George Martin, or their 
 respective attorneys, the sums above found due to them respectively, 
 together with their respective costs, disbursements and attorneys' fees 
 to them above awarded respectively ; and if the proceeds be insufficient 
 to pay them in full their said respective demands, then that he, said 
 Sheriff, pay them pro rata according to their said respective demands. 
 
 Second If said sum is more than sufficient to pay the said demands 
 of said John Brown and George Martin, then that out of the remainder, 
 said Sheriff pay the said defendant, William Jones, the sum above 
 found due to him, together with his costs, disbursements and attorneys' 
 fees above awarded. 
 
 Third That out of the remainder, if any, he shall pay the said de- 
 fendant, Richard Wilson, the sum above found due to him on his said 
 promissory note and mortgage, with the legal interest thereon from 
 this date, together with his costs and disbursements in this action above 
 awarded. 
 
 That he, said Sheriff, take receipts for said sums respectively from said 
 parties, or their respective attorneys, and the surplus of said purchase 
 money, if any, after said payments, he deposit with the Clerk of this 
 Court, to be drawn out only on the order of this Court, and as it may 
 direct. That if the proceeds of said sale be insufficient to pay all or 
 either of said parties the amounts above directed to be paid and in the 
 order above directed, that said Sheriff then report said deficiencies 
 respectively, so that the said parties may have execution for such 
 deficiencies respectively, according to the statute in such case made 
 and provided. 
 
 The following is a description of the premises so ordered to be sold 
 to satisfy said demands and claims as hereinbefore mentioned. (Here 
 instrt a full description of the property.) 
 
FORMS. 81 
 
 No. 22. 
 
 Return of Sheriff upon the Writ of Execution or Order of 
 Sale in Same Cause. 
 
 In pursuance of. the preceding writ (or order) I, the undersigned 
 Sheriff of the city and county of San Francisco, do certify and return, 
 that I advertised the premises therein described to be sold by me at 
 the Sheriff's office, in the City Hall, in said city and county, on the 
 day of in the year 1868. That previous to said sale, I 
 
 caused notice thereof to be publicly advertised as follows, viz : By 
 causing a printed notice thereof, particularly describing said property, 
 to be posted in three public places, for twenty days successively, in the 
 city and county of San Francisco, where said property is situated, and 
 where it was to be sold, and by causing a copy thereof to be published 
 once a week for the same period, in a public newspaper published in 
 said city and county. 
 
 And I further certify and return, that on said day of in 
 
 the year 1868, the day on which said premises were so advertised to 
 be sold, as aforesaid, I attended at the time and place fixed for said 
 sale, and exposed said premises for sale at public auction, to the highest 
 bidder, and the said premises were then and there fairly struck off to 
 A B, at the sum of two thousand two hundred dollars, he being the 
 highest bidder therefor, and that being the highest sum bid for the 
 same. 
 
 I further certify and return, that I gave to said purchaser a certificate 
 in writing of said sale, containing a particular description of the said 
 property so sold, the price bid for the same, and that it was subject to 
 redemption according to law a duplicate of which certificate was by 
 me filed in the office of the Recorder of said city and county. 
 
 I further certify and return that I have disposed of and paid out said 
 sum of two thousand two hundred dollars, as follows, viz : 
 
 I have retained in my hands, being the amount of my fees, commis- 
 sions and disbursements on said sale, the sum of one hundred and 
 five dollars, $105.00 
 
 I have paid to the attorney of the plaintiff, John Brown, 
 the sum of eight hundred and sixty dollars, being the 
 amount awarded to him by the Court, in the decree in 
 this action, for his claim, attorney's fees, costs, expenses 
 
82 FOEMS. 
 
 and disbursements, 860.00 
 
 I have paid to the attorney of the defendant, George Martin, 
 the sum of one hundred and sixty dollars, being the 
 amount awarded to him by the Court in said decree, for 
 his claim, attorneys' fees, costs, expenses and disburse- 
 ments, 160.00 
 
 That I have paid the balance thereof, being one thousand 
 
 and seventy-five dollars, 1075.00 
 
 $2,200.00 
 
 to the attorney of the defendant, William Jones, to apply on hi s 
 claim of one thousand five hundred and sixty-five dollars, awarded 
 to him by said decree, for his claim, attorneys' fees, costs, expenses and 
 disbursements, leaving the sum of four hundred and ninety dollars of 
 his said claim unsatisfied, and leaving the whole of the amount, in- 
 terest and costs, adjudged to be due by said decree, from the defendant, 
 John Smith, to the defendant, Richard Wilson, unsatisfied. 
 
 That I have taken receipts for the said respective payments, which 
 I have hereunto annexed. 
 
 I further certify and return, that the premises so sold by me, as afore- 
 said, and as described in said certificate of sale, were as follows, viz : 
 (Here insert description). 
 
 Dated, etc. P W, Sharif. 
 
 No. 23. 
 
 Execution for the Deficiency in Favor of Contractor. 
 
 The People of the State of California to the Sheriff of the City and 
 County of San Francisco, greeting : 
 
 Whereas, on the day f in the year one thousand eight 
 
 hundred and sixty-eight, by a certain decree, made in the Dis- 
 
 trict Court of the Judicial District, in and for the city and 
 
 county of San Francisco, in a certain action wherein John Brown is 
 plaintiff and John Smith, William Jones and others are defendants, it 
 
OJT 
 
 FOEMS. 83 
 
 was, among other things, adjudged, that all and singular certain real 
 estate and premises mentioned and set forth in the complaint, in said 
 action, should be sold at public auction, by the Sheriff of said city and 
 county ; and that said Sheriff, out of the proceeds of said sale, retain 
 his fees, disbursements and commissfons on said sale, and pay, amongst 
 other demands and claims specified in said decree to the said William 
 Jones, the amount adjudged by said decree to be due by said John 
 Smith to him, for a certain claim he had against said Smith, secured 
 by a lien on said premises, or so much thereof as the purchase money 
 of said premises would pay upon the same ; and that if the money 
 arising from said sale should, after paying certain other claims in said 
 decree mentioned, be insufficient to pay the amount found due by said 
 decree from said Smith to said Jones, the said Sheriff should specify 
 the amount of the deficiency in his return, and the plaintiff have execu- 
 tion therefor ; and whereas, it appears from the return of the said 
 Sheriff, that the amount of the deficiency is four hundred and ninety 
 dollars, and which, after the due application of said proceeds, remains 
 due from said Smith to said Jones on the said claim of said Jones, 
 therefore, we command you that you satisfy the said balance of the 
 said claim of said Jones, as adjudged by said decree, out of the 
 personal property of the said John Smith, within your county; or if 
 sufficient personal property cannot be found, then out of the real pro- 
 perty in your county, belonging to the said John Smith, on the 
 day of one thousand eight hundred and sixty eight, the day on 
 
 which the said claim, as a judgment, was docketed in your county, or 
 at any time thereafter, in whose hands soever the same may be, and re- 
 turn the execution within days after its receipt by you to the 
 Clerk of this Court. 
 
 Witness : Hon. ABC, Judge of our said District Cottrt, of the 
 Judicial District, in and for said city and county of San 
 Francisco, this day of one thousand eight hundred and 
 
 sixty-eight. 
 
 D E F, (ll<rk of said Court. 
 
84 FORMS. 
 
 No. 24. 
 
 Order of Reference where there are Various Claims of 
 Different Classes. 
 
 [Title of the Cause.'] 
 
 This cause being at issue on the complaint of the plaintiff, and the 
 answers of the different defendants therein, on motion of Mr. A B, of 
 counsel for said plaintiff, all the defendants appearing by their respec- 
 tive counsel and assenting thereto, it is ordered that this action be re- 
 ferred to Mr. C D, an attorney and counsel of this Court, as Referee, to 
 take the proofs of the respective parties hereto, and report the same to 
 the Court ; that he also report for the consideration' of this Court, a 
 decree founded on the testimony so taken before him, showing the 
 amount, if any, due to the plaintiff from the defendant, E F, and also 
 the respective amounts due to the other defendants, respectively, on 
 the various claims set up by them in their respective answers in this 
 action, the time when their respective claims became liens on the real 
 estate and premises described in the plaintiff 's complaint, and the order 
 of preference to which they are respectively entitled in the payment of 
 their said respective claims ; also showing what space of the real 
 estate or land, of defendant E F, around the building or superstructure, 
 in said complaint mentioned, is required for the convenient use and 
 occupation thereof, and that he report to this Court with all convenient 
 si 
 
 No. 25. 
 
 Demurrer to a Complaint for Want of Parties Under 5th 
 Subdivision of Section 10. 
 
 [Title of the Cause.'] 
 
 And now comes the defendant, A B, by C D, his attorney, and 
 demurs to the complaint of the plaintiff in this action, and specifies the 
 following as the grounds of said demurrer, namely : 
 
FORMS. 85 
 
 there is a defect of parties defendant in this action, in 
 this, viz : That it appears by said complaint, that one E F is personally 
 liable for the claim of the plaintiff in this action, and that one G H has 
 a lien on the real estate and premises in said complaint described for 
 certain materials furnished by him in the erection of the superstructure 
 on said premises, and that neither said E F nor said G H are made 
 parties to this action. 
 
 Second That said complaint does not state facts sufficient to con- 
 stitute a cause of action. 
 
 L N, Defendant's Attorney. 
 
 No. 26. 
 
 Averments in Answer of Want of Parties Under Sections 
 44 and 45 of Practice Act. 
 
 And the said A B, defendant, farther answering, says that there is a 
 defect of parties defendant in this action in this : That at the com- 
 mencement of this action, one C D had a claim for materials furnished 
 by him in the erection of the building or superstructure in the plain- 
 tiff's complaint described, and which claim remains wholly unsatisfied ; 
 and that said C D, before the commencement of this action, had filed 
 and recorded a claim for a lien on said premises, in the Recorder's 
 office of said city and county of San Francisco, in pursuance of the 
 Act entitled " An Act for Securing Liens of Mechanics and others," 
 approved 30th March, 1868. 
 
 No. 27. 
 
 Petition of a Lienholder for Intervention Under Section 
 659 of Practice Act. 
 
 [Title of the Cause.'] 
 
 To the District Court of the Judicial District, in and for the 
 
 City and County of San Francisco. 
 
86 FO RMS. 
 
 The petition of A B showeth : That the petitioner, the said A B, 
 heretofore, on the day of in the year 1868, and on divers 
 
 and sundry days between that day and the day of in said 
 
 year 1868, furnished and delivered to C D, one of the defendants in 
 the above entitled action, and at his special instance and request, certain 
 articles of lumber and other materials, to be used, and which were 
 used, by him in the building or superstructure described in the plain- 
 tiff's complaint in this action ; that the value of the said materials so 
 furnished by this petitioner, as aforesaid, was five hundred dollars, no 
 part or portion of which has been paid to this petitioner, but the same 
 remains wholly due and unpaid. That within thirty days after the 
 completion of said building or superstructure, this petitioner duly filed 
 and recorded in the office of the Recorder of the city and county of 
 San Francisco, a claim in writing, containing a true statement of his 
 said demand, after deducting all just credits and offsets, with the name 
 of the owner of said building or superstructure and premises described 
 in said complaint ; and also the name of the said defendant, C D, as 
 the person by whom this petitioner was employed to furnish said lum- 
 ber and materials, and a description of the property sought by the 
 petitioner to be charged with a lien for said lumber and materials so 
 furnished by the petitioner, which description was sufficient for the 
 identification thereof, and which petitioner avers is the same property 
 described in the complaint in this action, and on which the plaintiff in 
 this action claims a lien for his demand in said complaint set forth, 
 which claim so caused to be filed and recorded in said Recorder's office 
 by this petitioner, was duly verified by the oath, in writing, of this 
 petitioner, annexed to said claim. 
 
 That on the grounds above set forth, your petitioner claims to inter- 
 vene in this action and to become a plaintiff therein, and claims judg- 
 ment therein against said defendant, C D, for said sum of five hundred 
 dollars, and for the costs of filing and recording said lien, his attorney's 
 fees and his costs and disbursements in this action ; that said demand 
 be declared a lien upon said premises; that said petitioner have satisfac- 
 tion thereout of his said demand, and if insufficient for that purpose, 
 then that he have execution agaiost said C D for the deficiency, or for 
 such other or farther or different relief as he may be entitled to under 
 the facts of this case, as they shall appear, and as may be agreeable to 
 
FORMS. 87 
 
 equity and good conscience. And your petitioner, etc. 
 
 E F, Attorney for Petitioner. 
 (Here will follow an affidavit of verification in the usual form). 
 
 No. 28. 
 
 Notice to Contractor by Owner Under llth Section. 
 To Mr. A B 
 
 SIR : You will please to take notice that an action has been com- 
 menced against me in the District Court of the Judicial 
 District, of this State, in and for the city and county of San Francisco, 
 by C D, as plaintiff; and in his complaint therein, said C D claims a 
 lien on the building which you have, under the contract heretofore 
 entered into between us, been constructing for me, situate on F street, 
 in said city, for materials furnished by him, and for work and labor 
 done by him for you in the construction of said building, to the amount 
 of five hundred dollars. I hereby call upon you to defend said action, 
 at your own expense, and notify you that I will withhold payment o\ 
 any amount to become due under our said contract during the pendency 
 of said action ; and should judgment be obtained against me, upon the 
 lien claimed in said action, by said C D, I will deduct the same from 
 any amount to become due to you on said contract, and all costs and 
 expenses which I may incur in defending said action, should vou fail 
 to do so on my behalf. 
 
 Dated, etc. E F. 
 
88 FORMS. 
 
 No. 29. 
 
 Clause in a Decree where Contractor is made Personally 
 Liable to the Owner for the Excess under Section II. 
 
 [Title of the Cause]. 
 
 (After the adjudications on the claims of the different lienholders who 
 are parties to the action, then add): And whereas, it appears to this 
 Court from the proofs in this action, that the defendant, A B, entered 
 into the contract, in writing, with the defendant, E F, to construct the 
 building on which the foregoing liens are declared as in the complaint 
 and pleadings in this action set forth ; and that the defendant, E F, 
 was, by said agreement, to pay the said A B, for such construction, 
 according to the terms of said agreement, the sum of ten thousand 
 dollars. And whereas, it further appears that the said E F has paid 
 the said A B, on said contract, for such construction, the sum of eight 
 thousand dollars. And whereas, the different liens of the plaintiff in 
 this action, and of the defendants Gr H and O P, as established by 
 this decree, amount together to the sum of five thousand dollars, it is 
 adjudged and decreed that upon the payment, by said E F, of the 
 said claims of said plaintiff and of said defendants, G H and P, 
 as herein above in this decree settled and adjudged, or on the satisfac- 
 tion thereof by the sale of said property, as hereinbefore directed, the 
 said E F will be entitled to a judgment in this action against the said 
 A B, for the sum of three thousand dollars, the amount of the excess 
 of said payments and claims over said contract price; and that at any 
 time hereafter, on establishing, to the satisfaction of this Court, the 
 fact of such payments, said E F may apply at the foot of this decree, 
 for judgment and execution against the said A B, for the said sum of 
 three thousand dollars, and for his costs and disbursements. ( The 
 terms of the subsequent order for judgment against the contractor are so 
 plain and simple, that it is unnecessary to give a form.) 
 
FORMS. 89 
 
 No. 30. 
 
 Complaint by the Owner Against the Contractor for the 
 
 Excess. 
 
 [Title of the Cause.'] 
 
 The plaintiff in this action complains of the defendant, and for 
 cause of action shows to the Court as follows, namely : 
 
 That heretofore, to wit : On the day of in the year one 
 
 thousand eight hundred and sixty-eight, the said plaintiff entered into 
 a contract, in writing, with the said defendant, whereby the said defen- 
 dant, in consideration of the sum of five thousand dollars, to be paid 
 by said plaintiff to said defendant, on the completion of his said con- 
 tract, agreed to build and erect for said plaintiff a brick dwelling 
 house on the corner of A and B streets, in the city and county of San 
 Francisco, according to certain plans and specifications referred to in 
 said agreement, in writing, and to have the same finished and complete 
 by the first day of August, 1868. That the said defendant did finish 
 and complete the said dwelling house, according to said contract, on 
 the said first day of August, 1868, and the said plaintiff thereupon 
 paid to the said defendant the said sum five thousand dollars. The 
 plaintiff further shows, that during the construction of said dwelling 
 hoase by said defendant, one C D furnished to the said defendant, at 
 his special instance and request, lumber and other materials to be used 
 in, and which were by said defendant used in, the construction of said 
 dwelling house ; and the said defendant not having paid the said C D 
 therefor, the said C D, within thirty days after the completion of the 
 said dwelling house, filed and recorded in the Recorder's office, in and 
 for said city and county, a claim, in writing, containing a statement of 
 his said demand, after deducting all just credits and offsets, and show- 
 ing that said five hundred dollars remained unpaid, setting forth in 
 said claim the name of the plaintiff as owner of the said dwelling 
 house, and of the land on which it was erected, and also the name of 
 said defendant as the person by whom he was employed to furnish said 
 lumber and materials, together with a description of said property, 
 and claiming alien on said property for the same. 
 
 That afterwards, to wit : On the day of 1868, the said 
 
 C D commenced an action against this plaintiff, as the owner of said 
 property, in the District Court of the Judicial District, in and 
 
90 FOKMS. 
 
 for said city and county, to have his said demand declared a lien upon 
 said dwelling house, and on the land on which it was erected, and that 
 he obtain satisfaction of said demand by the sale of the same. That 
 such proceedings were thereupon had in said action ; that said sum of 
 five hundred dollars, together with two hundred and fifty dollars for 
 said C D's attorney's fees, costs and disbursements in said action, 
 making in all the sum of $750, were adjudged a lien on said property, 
 and said property ordered, by the said Court, to be sold to satisfy the 
 same. That said plaintiff was compelled to pay, and did pay, said C 
 D the sum of seven hundred and fifty dollars, and was put to great 
 expense in defending said action, in attorney fees, disbursements and 
 costs, to wit : the sum of two hundred dollars. And the said defen- 
 dant, although often requested by this plaintiff, has not paid this 
 plaintiff said sums of money so paid, laid out and expended by this 
 plaintiff, as aforesaid, wherefore the plaintiff prays judgment against 
 the defendant for the sum of nine hundred and fifty dollars, and in- 
 terest and the costs of this action. 
 
 L M, Plaintiff's Attorney. 
 (Add affidavit of verification in usual form.) 
 
 No. 31. 
 
 Complaint of Lien-holder for Repairs of a Dwelling House 
 and for a Lien Thereon Before all Prior Mortgages. 
 
 [Title of Cause.] 
 
 The plaintiff in the above entitled action complains of the defen- 
 dants, and shows to the Court as follows : 
 
 That heretofore, to wit : On the day of in the year one 
 
 thousand eight hundred and sixty-eight, this plaintiff was employed 
 by the defendant, C D, as a carpenter and joiner, to, and did, at his 
 special instance and request, repair the dwelling house of the said C 
 D, situate on E street, in the city and county of San Francisco, and 
 on the piece or parcel of land hereinafter more particularly described, 
 
FOKMS. 91 
 
 by putting a new roof thereon (or whatever the repair may be); and did 
 at the like request of said defendant, furnish all the lumber and 
 materials necessary for the said repair, by this plaintiff, as such carpen- 
 ter and joiner, of the said dwelling house; and the said defendant did 
 thereupon become indebted to the said plaintiff for his said services, 
 work and labor, as such carpenter and joiner, in making of said re- 
 pairs, and for the lumber and other necessary materials furnished by 
 this plaintiff in the making and completing said repairs, in the sum of 
 five hundred dollars, no part of which has been paid by said defendant, 
 C D, to said plaintiff, although to pay the same he has been often 
 requested by said plaintiff, for which sum the said plaintiff demands 
 judgment against said defendant C D. 
 
 The plaintiff further shows to the Court, that within thirty days 
 after the completion of the said repairs to the said dwelling house, to 
 wit : On the day of 1868, he filed with the Recorder of 
 
 the city and county of San Francisco, being the county in which said 
 dwelling house is situated, a claim, in writing, containing a true state- 
 ment of his said demand against said defendant, C D, for his said 
 plaintiff's services, work and labor done and materials furnished, as 
 aforesaid, in making said repairs, after deducting all just credits and off- 
 sets, stating therein the name of the said C D, as the owner of said pro- 
 perty, and as the person by whom he, the said plaintiff, was employed 
 to make said repairs, and also a description of the said dwelling house 
 and the land on which the same is situated, sufficient for identification, 
 which claim was duly verified by the oath in writing of this plaintiff, 
 attached thereto, and by virtue of which proceeding said plaintiff 
 claims a lien on said property for the satisfaction of the said sum of 
 five hundred dollars, so due to him as aforesaid, and for his attorney's 
 fees, costs and expenses, as the same may be allowed by the Court in 
 pursuance of the Act entitled " An Act for Securing Liens of Mechan- 
 ics and others," approved 30th March, 1868. 
 
 The plaintiff further shows that, as he is informed and verily be- 
 lieves, the defendant, E F, claims to have a lien upon said premises by 
 virtue of a mortgage for the sum of two thousand dollars, .made and 
 executed by said defendant, C D, to him prior to the commencement 
 of said repairs, and recorded before said commencement ; but this 
 plaintiff claims that under the Act aforesaid, the said lien of this 
 plaintiff, so obtained as aforesaid, for said repairs, is preferable to that 
 
92 FOKMS. 
 
 of the said defendant, E F, by his mortgage aforesaid, and prays that 
 such preference be so declared by decree of this Court, and his, said 
 plaintiffs lien, first satisfied out of said premises. 
 
 That the land on which the said dwelling house stands and to which 
 it is appurtenant, is bounded and described as follows, viz : (Here, 
 insert description of land). 
 
 The plaintiff demands judgment against the said defendant, C D, 
 for the said sum of five hundred dollars, and his attorney's fees, and his 
 costs and disbursements in this action, as the same may be taxed and 
 allowed, and that his said demand be declared a lien on said dwelling 
 house and so much of said land around the same as may be required 
 for the convenient use and occupation thereof ; that said lien be pre- 
 ferred to the lien by mortgage of said defendant, E F, and that said 
 premises be sold to satisfy said plaintiff's said demand, or for such 
 other further or different relief as the Court may adjudge the plaintiff 
 entitled to, and as may be agreeable to equity and good conscience. 
 
 R S, Plainti/'s Attorney. 
 
 (Add the usual affidavit of verification.) 
 
 No. 32. 
 
 Complaint of Lien-holder for Grading or Improving a 
 
 City Lot. 
 
 [Title of the Cause.'] 
 
 The plaintiff in the above entitled action complains of defendant, 
 and shows to the Court as follows, viz : 
 
 That heretofore, to wit : On the day of 1868, at said 
 
 city and county, the plaintiff entered into a contract in writing with 
 the defendant, to grade and improve a certain city lot of land, in 
 said city and county, commonly called a fifty vara lot, said city and 
 county being an incorporated city, under the laws of this State, by the 
 name of " the City and County of San Francisco ;" by which said con- 
 tract said plaintiff agreed with said defendant to (here describe what the 
 
FOKMS. 93 
 
 improvement was, whether to " grade, fill in or otherwise improve the 
 " same, or the street in front of or adjoining the same" so as to bring the 
 improvement within the terms of the ninth section}, and which improve- 
 ment, by the terms of said contract, was to be finished and completed 
 by this plaintiff, on the day of 1868, in consideration of 
 
 which, said defendant, by said contract, covenanted and agreed with 
 the plaintiff to pay him the sum of one thousand dollars, in United 
 States gold coin, on the finishing and completing of said improve- 
 ment. That the said plaintiff did commence the work of said im- 
 provement on the day of 1868, and finished and completed 
 said improvement, in the manner and by the time a agreed by him in 
 said contract, and did otherwise, in all respects, fully perform all the 
 covenants and agreements in said contract on his part to be fulfilled 
 and performed, and the said defendant thereupon became indebted to 
 the plaintiff in the said sum of one thousand dollars, no part whereof 
 has been paid by said defendant to said plaintiff, although to pay the 
 same he has often been requested by the said plaintiff. 
 
 The plaintiff further shows, that within thirty days after the com- 
 pletion of the said improvement and the completion of his, said plain- 
 tiff's said contract, to wit : on the day of 1868, he filed 
 with the Recorder of said city and county, a claim, in writing, con- 
 taining a true statement of his said demand against said defendant, 
 under said contract, after deducting all just credits and offsets, stating 
 therein the name of said defendant as the owner of said city lot, and 
 as the person by whom said plaintiff was employed to make the said 
 improvement, with a description of the said city lot sufficient for 
 identification, which claim was duly verified by the oath, in writing, of 
 said plaintiff attached thereto, and duly recorded in said Recorder's 
 office on the day and year aforesaid ; that the following is a correct 
 description of said city lot, viz : (Describe it.) 
 
 Wherefore (conclude with prayer for judgment and for a lien, etc., 
 as in previous forms, with affidavit of verification). 
 
94 FOEMS. 
 
 No. 33. 
 
 Complaint of a Miner on Lien for Labor in Mine. 
 
 [Title of Cause] 
 
 The plaintiff complains of defendant, and shows to the Court as 
 follows, viz : 
 
 That the defendant is a mining corporation under the laws of this 
 State, duly incorporated under the corporate name of " The El 
 Dorado Mining Company." That the said plaintiff performed work, 
 labor and services for said defendant, in their mine or mining claim, 
 situate in the county of Nevada, in this State, and more particularly 
 hereinafter described, at the special instance and request of said defen- 
 dant. That said work, labor and services, consisted in (Here de- 
 scribe the kind of labor generally.} That said labor commenced on 
 the day of 1868, and ended on the day of and 
 
 was reasonably worth the sum of one hundred and fifty dollars, which 
 the said defendant, though often requested by this plaintiff thereto, 
 has not paid nor any part thereof. 
 
 That within thirty days after the performance of said labor, said 
 plaintiff filed in the office of the Recorder of said county of Nevada, 
 a true statement of his said demand, after deducting all just credits 
 and offsets, stating therein the name of the defendant as owner of 
 said mine, and C D, who was the superintendent of said defendant 
 at the time of the performance of said labor, as the person by whom, 
 on behalf of said defendant, the said plaintiff was employed to do said 
 labor, with a description of said mine sufficient for identification, which 
 claim was duly verified by said plaintiff, and duly recorded in said 
 Recorder's office, on the day and year aforesaid. That the following 
 is a description of said mine. (Insert description as directed in 
 No. 13.) 
 
 Wherefore plaintiff demands (prayer for judgment and lien, etc., 
 as in previous forms, claiming a lien on the mine and appurtenances, and 
 sufficient space around for the convenient use and working of the same.) 
 
FOKMS. 95 
 
 No. 34. 
 
 Advertisement by Mechanic to Sell Personal Property 
 Under Section 15. 
 
 AUCTION SALE. 
 
 Notice is hereby given that I, the undersigned, will expose for sale, 
 at public auction, to the highest bidder, in front of the Merchants' 
 Exchange, in California street, in the city and county of San Francisco, 
 on the day of 1868, at twelve o'clock noon, of that day, 
 
 a certain wagon (here describe it generally), which said wagon was, 
 by A B, the owner thereof, left with me as a wagon maker, to be re- 
 paired on or about the day of 1868 ; that I made the 
 necessary repairs to said wagon at the instance and request of said 
 A B ; that said repairs were justly and reasonably worth the sum of 
 sixty dollars, and were completed on the day of 1868, 
 when said sum so became due to me from said A B, for said repairs ; 
 that the said A B, though often requested, has not paid said sum or 
 any part thereof, and said wagon has ever since the completion of said 
 repairs, and for more than two months since the said work was done, 
 been retained in my possession by virtue of my lien thereon, for said 
 repairs, and the proceeds of said sale are to be applied to the discharge 
 of said lien and of my costs of keeping and selling said property. 
 
 C D. 
 
DIGEST 
 
 OF ALL THE DECISIONS OF THE SUPREME COURT OF THE 
 
 STATE OF CALIFORNIA UP TO THE PRESENT TIME, IN 
 
 REFERENCE TO LIENS UNDER THE DIFFERENT 
 
 MECHANICS' LIEN LAWS EXISTING PRIOR TO 
 
 THE ACT OF 1868. 
 
 To enable those persons entitled to the benefit of the statute of the 
 mechanics' lien law to avail themselves of this-*extraordinary remedy, 
 all the provisions of the law must be strictly complied with. Walker 
 v. Hauss Hijo, 1 Cal. 185 ; Bottomly v. Grace Church, 2 Cal. 91. 
 
 A material man, to enforce his lien for the price of the material 
 furnished, must file the notice of his intention to hold a lien in 
 statute time, or his lien will be lost. Walker v. Hauss Hijo, 1 
 Cal. 185. 
 
 If the verdict of a jury fails to find a lien, the Court cannot render 
 a judgment essentially different from the verdict, and a verdict, so far, 
 will be reversed. Ib. 186. 
 
 Under Mexican law, a person who furnishes materials for the erec- 
 tion of a building has no lien on the building to secure payment for 
 the materials furnished. Macondray v. Simmons, 1 Cal. 394 ; Stow- 
 ell v. Simmons, 1 Cal. 452. 
 
 The description of property in a mechanic's lien, as situated on 
 Battery, between Pacific and Jackson streets, in San Francisco, is suffi- 
 ciently certain. Rotating v. Cronise, 2 Cal. 63. 
 
 A transfer ef property cannot defeat a lien which had already 
 accrued upon the property. Ib. 64. 
 
 The materials must not only have been used in the construction of 
 the building, but they must have been by the express terms of the con- 
 act furnished for the particular building on which the lien is claimed, 
 
98 DIGEST. 
 
 and these facts must be alleged and proven. Bottomly v. Grace, 
 Church, 2 Gal. 91 ; Houghton v. Blake, 5 Cal. 240. 
 
 One who advances money as a loan, although it is expressly for the 
 payment of materials and labor devoted to the erection of a building, 
 can have no claim to the benefit of the lien law, but must rest upon 
 the equity of his case. Godeffroy v. Caldwell, 2 Cal. 491. 
 
 The statue of April 12th, 1850, has placed liens for materials and 
 liens for labor on the same footing, and the proceeds of sale must be 
 distributed in conformity to the same. Moxley v. Shepard, 3 Cal. 64. 
 
 The statute of April 12th, 1850, limits the structures on which the 
 lien can exist to buildings and wharves. No lien can therefore exist on 
 a bridge. Burt v. Washington, 3 Cal. 246. 
 
 Where alien attaches upon a leasehold interest, it so attaches sub 
 ject to all the conditions of the lease, and he who holds it can enforce 
 it, notwithstanding a subsequent failure of the lessee to pay rent and 
 a surrender of the lease to the lessor. Gaskill v. Trainer, 3 Cal. 339 ; 
 Gaskill v. Moore, 4 Cal. 235. 
 
 It is necessary to record a mortgage to give notice only to " subse- 
 sequent purchasers or mortgagors without notice;" no mention is made 
 of liens ; hence it follows that a mechanic's lien will not precede an un- 
 recorded mortgage of prior date. Rose v. Munie, 4 Cal. 173. 
 
 Unless the answer of the garnishee discloses liens having a privity 
 of claim upon the funds in his hands, judgment must be entered for 
 the amount he admits due. Cahoon v. Levy, 4 Cal. 244. 
 
 A County Court has no jurisdiction to enforce a mechanic's lien 
 where the amount in controversy exceeds two hundred dollars. Brock 
 v. Bruce, 5 Cal. 279. 
 
 T. & Co. were in the possession of certain property under a verbal 
 agreement of sale from GL, and employed W. to erect a building upon 
 it. Before the completion of the building, G. signed a deed to the 
 land, and at the same time T. & Co. executed a mortgage for the pur- 
 chase money : Held, that the conveyance and mortgage were but one 
 act, and that no prior lien on the general property of T. & Co. could 
 have priority over the plaintiff's mortgage. Guy v. Carriere, 5 
 Cal. 512. 
 
 The statute concerning mechanics' liens was designated for two 
 classes of laborers and contractors : first, contractors or material men, 
 who contract directly with the owner of the building himself ; and 
 
DIGEST. 99 
 
 second, laborers, sub-contractors, etc., who have no privity of contract 
 with the owner. Cahoon v. Levy, 6 Cal. 296. 
 
 Contractors have an actual lien from the commencement of the 
 work until sixty days after its completion ; the subcontractors or 
 laborers have their remedy by giving notice to the owner, and their 
 lien attaches by the service of such notice. Ib. 
 
 A garnishment served on the owner, in a suit against the head con- 
 tractor after the commencement of the building, and before notice 
 served, must prevail over the lien of a sub-contractor or laborer. 
 Ib. 297. 
 
 The remedy given the sub-contractor is simply in its nature an 
 attachment without suit, but by notice, and having to give notice, he 
 must yield to the claim of the attaching creditor. Ib, 
 
 Mortgages and liens of record form no exception to the rule pre- 
 scribed by section 136 of the " Act to Regulate the Estates of De- 
 ceased Persons," and the claims secured by them must have been pre- 
 sented to the executor or administrator and rejected by him before an 
 action can be maintained. Ellissen v. Halleck, 6 Cal. 393 ; Falkner 
 v. Folsom, 6 Cal. 412 ; Hentsch v. Porter, 10 Cal. 558. 
 
 A mortgagee in possession has a legal title against the whole world, 
 subject to the rights of the mortgagor ; therefore, where he mortgaged 
 the property and subsequently erected a building on it, for the cost of 
 which a mechanic's lien was filed, the holder of the lien cannot object 
 to the legality of the mortgage in the face of which* he contracted. 
 Ferguson v. Miller, 6 Cal. 404. 
 
 The lien of a sub-contractor filed and notice given to the owner of a 
 building within thirty days after the completion of the work, under the 
 Act of 1855, attaches from the time the work was commenced, and 
 takes precedence over a garnishment served on the owner against the 
 head contractor after the work was commenced and before the filing 
 and serving notice of lien. Tuttle v. Montford, f Cal. 360. 
 
 The lien of the mechanic, artisan and material man is favored in law, 
 because those parties have in part created the very property on which 
 the lien attaches. Ib. 
 
 A mechanic's lien is in the nature of a mortgage ; is a charge upon 
 the land, and can only be assigned in writing. Ritter v. Stevenson, t 
 Cal. 389. 
 
 Where the owner of a lot contracted for the erection of a house 
 
100 DIGEST. 
 
 thereon, and agreed to pay certain sums of money as the work pro- 
 gressed, and on its completion to convey a certain other lot, for which 
 purpose R. releases a mortgage on the lot, and during the work the 
 owner of the lot on which the building was being erected mortgaged 
 it to R., and subsequently, on its completion, by agreement with the 
 builders, gave his note for $10,000, instead of the lot he was to con- 
 vey, and the builders filed a notice of lien and assigned note and lien 
 to plaintiff : Held, that as much of the claim as represented the value 
 of the lot which was to have been conveyed must be postponed to the 
 mortgage. Soule v. Dawes, 7 Cal. 576. 
 
 The lien of the contractor, if filed in time, takes effect, by relation, 
 from the dace of the commencement of the work, and all persons who 
 deal with the property during the work are charged with notice of 
 the claim of the contractor. But if a party is informed of the nature 
 of the contract between the owner and builder, and takes a convey- 
 ance of the property subject to it, no subsequent change of the terms 
 of the contract can create an incumbrance which will have priority of 
 his conveyance. Soule v. Dawes, 7 Cal. 576 ; Crowdl v. Gilmore, 13 
 Cal. 56. 
 
 The following notice of mechanic's lien does not contain such a de- 
 scription of the premises as the statute contemplates : " A dwelling 
 house lately erected by me for J. W. Conner, situated on Bryant 
 street, between Second and Third streets, in the city of San Francisco, 
 on lot No. :" Montrose v. Conner, 8 Cal. 347. 
 
 The evident intention of the Mechanic's Lien Act was to give 
 mechanics and artisans a lien on all work done by them, upon any de- 
 scription of property, and to give the mechanic a lien upon whatever 
 interest the person who caused the superstructure had. McGreary v. 
 Osborne, 9 Cal. 122. 
 
 Where a civil engineer's lien for work done for the defendants in 
 the construction of a canal or ditch was filed in the Recorder's office 
 of the county where the ditch is located on the sixth day of May, 
 1856, and suit was not commenced to enforce the lien until the twenty- 
 sixth day of January, 1857 : Held, that the time fixed by statute for 
 the enforcement of the lien had expired before the commencement of 
 the suit. Green v. Jackson Water Co., 10 Cal. 375. 
 
 A decree for the sale of premises in a suit to enforce a mechanic's 
 lien has the same and no greater effect upon the rights of purchasers 
 
TTif 7-*) 
 
 . 
 
 DIGEST. 101 
 
 and incumbrances prior to the commencement of the suit that a similar 
 decree would have upon the foreclosure of a mortgage. Whitney v. 
 Higgins, 10 Cal. 551. 
 
 The liens which, by the act of April 19th, 1856, entitled " An Act 
 for Securing Liens to Mechanics and others," are required to be exhib- 
 ited and proved upon publication of notice in some newspaper of the 
 county, or be deemed waived, are liens arising under that Act, and do 
 not apply to other liens. II. 
 
 All persons interested in the premises prior to the suit brought to 
 foreclose a mortgage, or to enforce a mechanic's lien whether pur- 
 chasers, heirs, devisees, remainder men, reversioners or mcumbrancers, 
 must be made parties, otherwise their rights will not be affected. 
 Persons who acquire interest by conveyance or incumbrance after suit 
 brought, need not be made parties. Ib. 552. 
 
 Where a mechanic's lien attached on certain premises January 18th, 
 1856, and a mortgage was placed on the same premises February 21st, 
 1856, and a suit was brought subsequent to the execution and record 
 of the mortgage, to enforce the mechanic's lien, in which suit the 
 mortgagees were not made parties, and under the decree rendered in 
 such suit a sale was made, and after the expiration of six months, no 
 redemption being had, a deed was executed to the assignee of the 
 sheriff 's certificate : Held, that the right of the mortgagees to redeem 
 the premises by paying off the incumbrances of the mechanic's lien 
 was not affected by the decree and the proceedings thereunder, and 
 that the purchaser of the premises upon a decree of foreclosure of the 
 mortgage, having received his deed upon such purchase, was entitled 
 to the same right to redeem. 1 b. 553. 
 
 In a mechanic's lien, it is not necessary to give the items of the 
 work and materials in the statement of the lien filed, where the con- 
 tract for the construction of the building is in a sum in gross. Heston 
 v.Martin, 11 Cal. 42. 
 
 Neither the Mechanic's Lien Law of 1855 or 1856 give a lien upon 
 canals or ditches. The language of the statute is " building, wharf, 
 or other superstructure." A ditch is not a building or a wharf, and 
 in no sense can be designated a superstructure. Ellison v. Jackson 
 Water Co., 12 Cal. 554. 
 
 Under the Mechanic's Lien Act of 1856 the owner of a building may 
 contract to pay for it as soon as completed, and he is not liable to 
 
102 DIGEST. 
 
 material men until notice served on him, and then only to the extent 
 of the sum due the contractor at the date of the notice. Knowhs v. 
 Joost, 13 Cal. 621. 
 
 Under the Mechanic's Lien Act, it is not necessary that the account 
 to be filed in the Recorder's office should remain in the office after it 
 is recorded. Mars v. McKay, 14 Cal. 128. 
 
 A suit to enforce a particular lien, under the Act, is a proceeding to 
 enforce all the liens against the property, and an intervention in a suit 
 already pending, if filed within the six months, is as much a compli- 
 ance with the Act as an original suit. Ib. 129. 
 
 In a suit to enforce a mechanic's lien on a ditch, a mortgagor of the 
 ditch subsequent to the lien has no absolute right of intervention, and 
 where the suit has been pending some time, and the application to in- 
 tervene was made just as plaintiff was taking judgment, the application 
 was properly refused. Hooker v. Ktlley, 14 Cal. 165. 
 
 For extra work on a building by the contractor, in pursuance of the 
 general provision in the contract for extra work, at the will of the 
 owner, there may be a lien on the property, as against a mortgagee, 
 given by the owner before the extra work was commenced ; provided, 
 the work was done with the knowledge of the mortgagee, and without 
 objection from him. Soule v. Dawes, 14 Cal. 250. 
 
 R. & Co., defendants, had two mechanic's liens upon certain proper- 
 ty, one filed October 30th, 1854, the other filed December 8th, 1854, 
 against defendant, Y. In 1855, R. & Co, signed an. entry on the 
 record of liens, stating that the liens did not fall due until January 15th, 
 1856. This was done on the supposition that the Act of 1855 permit- 
 ted such extension of credit with safety. Discovering that such Act 
 in this respect did not apply to existing liens, R. & Co., November 
 16, 1855, brought suit on the liens, obtained judgment, sold the pro- 
 perty, bought it in and received a Sheriff's deed. Plaintiff, as mort- 
 gagee of the property subsequent to the liens, obtained judgment, sold 
 the property, bought it in, received a sheriff's deed, and now files his 
 bill to set aside R. & Co.'s judgment and sale on the ground of fraud : 
 Held, that R. & Co. and Y. had a right to rescind the arrangement 
 made to extend the lien, such extension having been made under 
 misapprehension, the debt being legal and just, and plaintiff having 
 acquired no rights which it would be inequitable to disturb ; that 
 such rescission is no evidence of fraud. Gamble v. Voll, 15 Cal. 509. 
 
DIGEST. 103 
 
 The fact that judgment on the liens in this case included a charge of 
 interest at two per cent, given on a prior extension of the lien, which 
 interest is over and above the original contract price for the articles 
 for which the lien was claimed, is not of itself conclusive proof of 
 fraud in the judgment, but such interest cannot be charged on the 
 premises as against plaintiff. Ib. 510. 
 
 As subsequent mortgagee, plaintiff would have a right, in a proper 
 case, to redeem the premises from the sale under the judgment of the 
 liens, by paying the money justly due, interest, costs, etc. he not 
 having been party to the suit by the lien-holder. Ib. 
 
 Plaintiffs here cannot object that the premises are not so described 
 in the liens as to pass title under such sale. If from insufficient de- 
 scription R. & Co. got no title, plaintiffs have their remedy in eject- 
 ment. Ib. 
 
 In this case, the only ground for the interposition of equity being 
 fraud, and this being ignored by the findings, the bill is dismissed ; but 
 the decree will be confined to the disposition of the fraud alone, leav- 
 ing plaintiff at liberty to pursue his remedy in ejectment, if he have 
 any, without prejudice from the decree. Ib. 
 
 Under the Mechanic's Lien Act of 1858, material men, sub-contrac- 
 tors, etc., have a lien upon the property described in the act to the 
 extent if so much be necessary of the contract price of the princi- 
 pal contractor ; but they must give notice of their claims to the owner, 
 or the mere existence of such claims will not prevent the owner from 
 paying the contractor, and thereby discharging himself from the debt. 
 By giving such notice, the owner becomes liable to pay the sub-con- 
 tractors, material men, etc,, as on garnishment or assignment ; but if 
 the owner pay according to his contract, in ignorance of such claims, 
 the payment is good. McAlpin v. Duncan, 16 Cal. 127. 
 
 The notice of mechanic's lien, filed in the Recorder's office, need not 
 set out the items of the account ; a general statement, of the demand, 
 showing its nature and character, and the amount due or owing 
 thereon, is sufficient. Brannan v. Swasey, 16 Cal. 142. 
 
 A party having secured a mechanic's lien under the statute, does 
 not forfeit or waive it by causing an attachment to be issued and 
 levied upon property of the debtor to secure the same demand. The 
 two remedies are cumulative, and both may be pursued at the same 
 time. Ib. 
 
104 DIGEST. 
 
 If the party attempts to pursue them in separate actions, he might 
 be put to his election ; but it is no defense to an action to enforce the 
 mechanic's lien, that in a previous suit for the same debt an attach- 
 ment was issued and levied upon the property of the debtor, particu- 
 larly when such suit has been dismissed, and nothing was realized by 
 the attachment. Ib. 
 
 The notice of mechanic's lien filed in the Recorder's office, need not 
 set out the items of the account. Nothing more is required than a 
 statement of the demand showing its amount and character. Selden 
 v. Meeks, 17 Cal. 128. 
 
 Defendant employed plaintiff, a mechanic, to erect certain improve- 
 ments upon a lot owned by the former. As part of these improve- 
 ments, plaintiff was to place on the lot a small frame house, which he 
 had previously constructed, and make certain additions thereto ; and 
 for the house plaintiff was to receive a certain sum. Plaintiff com- 
 plied with his agreement, and defendant gave his note for the amount 
 due : Held, that although the Mechanic's Lien Act does not probably 
 afford a lien for the price of a building already constructed, and then 
 sold to be put on a lot, still, as in this case, the building sold was to 
 constitute part of a larger structure, the erection of which was pro- 
 vided for by the agreement ; and as it Was used in accordance with the 
 provisions of the agreement, it may be regarded as material furnished 
 for that purpose, and hence within the statute giving a lien. Ib. 
 
 Query: Whether a flume is a "superstructure" within the Mechan- 
 ic's Lien Act of 1856. Head v. Fordyce, It Cal. 149. 
 
 Under the Act of 1856, the mechanic making the first contract, or 
 first commencing work on a building, has no priority over others com- 
 mencing work subsequently. The statute places all claimants on an 
 equality, and directs the property to be sold and the proceeds applied 
 to all without preference. Crowdl v. Gilmore, 18 Cal. 370. 
 
 This rule of equity would not apply if some mechanics began work 
 before a mortgage was executed by the owner of the property, and 
 some afterward. In such case the first lien-holders would have 
 priority over the mortgagee, while the latter would not. The first class 
 would be paid in full before the mortgage ; then the mortgage, then 
 the last class each lien -holder having equal claims with the others of 
 his class. Ib. 
 
 Where machinery is sold for the purpose of being placed in a build- 
 
DIGEST. 105 
 
 ing owned by the vendee, with a view of converting it into a manu- 
 factory, and is actually used for that purpose, the vendor has a 
 mechanic's lien upon the building for the price. Donahue v. Cromartie, 
 21 Cal. 80. % 
 
 Where the sale of materials, employed in the construction or altera- 
 tion of a building, is made by a written contract, which is silent as to 
 the purpose for which the articles sold are intended to be used, parole 
 evidence is admissible to show such purpose and to establish thereby a 
 mechanic's lien for the price in favor of the vendor. Ib. 
 
 It is not necessary to the establishment of a mechanic's lien that the 
 labor or materials shall be employed in the making or erection of a 
 building. It is sufficient if they are employed in the alteration of a 
 building to adapt it to other than the original uses, or to change its 
 form or structure. Ib. 
 
 Knowledge by a sub-contractor on a building, that there is an agree- 
 ment in writing between the original contractor and the owner, is suffi- 
 cient to put him upon inquiry as to the contents of the writing, and 
 charge him with notice thereof. Bowen v. Aubrey, 22 Cal. 566. 
 
 When the owner makes a contract for erecting or doing work upon 
 a building, no sub-contractor or person furnishing labor or materials 
 for the original contract can acquire any rights against the owner in 
 contravention of the terms and conditions of the original contract. Ib. 
 
 Where an original contractor, sub-contracts work upon a building, 
 there is no privity between the sub-contractors and the owner, and the 
 latter cannot be made liable upon the sub-contract. Ib. 
 
 P and others contracted, in writing, with A, that the latter should 
 erect a building for them, and in the agreement covenanted that he 
 would not incumber or suffer to be incumbered the said building, or lot 
 on which it is erected, by any mechanic's liens, or debts of material 
 labor-men, contractors, sub-contractors or otherwise. A sub-let the 
 brick work to C, who had notice of the existence of the written agree- 
 ment. Held, that C was precluded by the condition in the original 
 contract from acquiring a mechanic's lien upon the building for the 
 work done by him. Ib. 
 
 A mechanic's lien which describes the property as a "quartz mill 
 being at or near the town of Scottsville, in Amador county, known as 
 Moore's New Quartz Mill," contains a sufficient description to hold the 
 property, where there is no evidence that there was any other quartz 
 
106 DIGEST. 
 
 mill at the place so designated as to render it uncertain, which was 
 intended. Tibbets v. Moore, 23 Cal. 208. 
 
 Where the lien describes the land around the building on which a 
 lien is claimed in these words, "with such convenient' space of land 
 "around the same as may be required for the convenient use and occu- 
 " pation thereof," the description is also sufficient ; but it is proper for 
 the Court, by its decree, to define the amount and extent of the land 
 connected with the building which is properly subject to the lien ; and 
 if the decree follows the description in the lien, it is doubtful whether 
 the purchas* will acquire any land beyond that covered by the build- 
 ing. Ib. 
 
 The lien of the material man accrues at the time he has the 
 materials, which he has contracted to furnish ready for delivery at the 
 place where he has agreed to deliver them. Ib. 
 
 Where the notice of lien states that the materials were furnished to 
 A & Co, when in fact they were furnished to A, this does not invali- 
 date the lien, for the material fact is, whether the materials were fur- 
 nished for and used in the construction of the building on which the 
 lien is claimed. Ib. 
 
 When a proceeding is commenced to enforce a lien under the Act of 
 1862, persons having a lien by mortgage upon the property upon 
 which the lien is sought to be enforced, have no right to intervene. 
 Van Winkk v. Stow, 23 Cal. 457. 
 
 The lien given by the statute to the mechanic or the material man 
 for work and labor performed or materials furnished in the construc- 
 tion of a building, commences and attaches to the property at the time 
 of the commencement of the work or the beginning to furnish the 
 materials. McCrea v. Craig, 23 Cal. 522. 
 
 The reasonable construction in an allegation in a complaint that 
 " plaintiff furnished the materials between the 6th of April, 1862, and 
 the 28th of June, 1862," is that plaintiff commenced furnishing the 
 materials on the 6th of April, and continued furnishing the same from 
 time to time up to June 28th. Ib. 
 
 Where the contract was made and the materials were furnished 
 while the lien law of 1858 was in force, but the notice of lien was not 
 filed in the Recorder's office until after the lien law of 1862 went into 
 effect : Held, that the lien was not lost, but must be enforced in ac- 
 cordance with the provisions of the Act of 1862. Ib. 
 
DIGEST. 107 
 
 The statute gives one who has entered into a contract in writing to 
 construct a building, a lien on the same as security for the payment of 
 the money becoming due to him according to the terms of the contract, 
 but this lien cannot be enforced for an amount exceeding the sum to 
 become due the contractor. Dore v. Sellers, 2T Cal. 591. 
 
 If a contractor engages to construct a building in consideration 
 in whole or in part of a debt then due from him to the employer, or 
 of a sum paid him by the employer upon the execution of the con- 
 tract, that portion of the contract price represented by the debt 
 or the advanced payment cannot become a lien on the building. Ib. 
 
 The employes of the contractor have no lien on the building as 
 principals, and cannot acquire a lien on the building independent of 
 the one existing on the original contract, which they may enforce to 
 the amount due them, so that the same does not exceed the sum for 
 which the contractor has a lien. I b. 
 
 If the contractor has paid the sub-contractor according to the 
 terms of his contract with him, and has not made premature payment, 
 the employees of the sub-contractor are not entitled to demand any- 
 thing from the contractor or employer. Ib. 
 
 The employees of the sub-contractor cannot intercept any money 
 due from the employer to the contractor, nor can they enforce the lien 
 of the contractor for any of the same beyond what is due from the 
 contractor to the sub-contractor at the time. Ib. 
 
 One claiming title to property under a Sheriff's deed, execution on 
 the foreclosure of a mortgage may, in an action brought by him to 
 quiet his title against one who claims under a Sheriff's deed, executed 
 on the foreclosure of a mechanic's lien, in which foreclosure he was 
 not a party, go behind the decree foreclosing the mechanic's lien, and 
 show that no lien in fact existed. Horn v. Jones, 28 Cal. 194. 
 
 The notice of a sub-contractor or material man, given to the 
 employer, claiming a lien under the contract of the contractor, should 
 contain a statement that the amount for which the lien is claimed is 
 due over and above all payments and set-effs. .Davis v. Livingston, 
 29 Cal. 283. 
 
 The sub-contractor or material man, in order to hold a lien for work 
 done for or materials furnished to the contractor, must comply strictly 
 with the provisions of the Act. Ib. 
 
 If the sub-contractor or material man serves more than one notice 
 
108 DIGEST. 
 
 claiming a lien for the same account, the several notices cannot be 
 considered together for the purpose of determining the sufficiency of 
 notice to hold a lien, but each must stand on its own merits, and the 
 lien will not exist unless one of the notices is sufficient in itself to 
 give it. Ib. 
 
 The notice of a material man claiming a lien for materials furnished 
 the contractor, need not state the particular character of the materials 
 furnished, nor that the materials were used in constructing the build- 
 ing, and if there are several contractors the notice is sufficient if it 
 name one of them. Ib. 
 
 If joint contractors apportion the job and compensation of construct- 
 ing a building among themselves by a written contract, to which the 
 employer is not a party, it is no defense in an action by a material man 
 to enforce a lien for materials furnished one joint contractor that when 
 notice was given there was nothing due the contractor furnished, under 
 the apportionment. Ib. 
 
 The lien of the material man or laborer can be enforced for all 
 sums to be paid the contractors, and not due when the notice given. Ib. 
 
 The right of a material man to a lien on the laud and building, as 
 against the owner for materials furnished the contractor, depends for 
 its existence upon the fact of an indebtedness from the owner to the 
 contractor at the time of or subsequent to the notice. Blythe v. Poult- 
 ney, 31 Cal. 233. 
 
 If the contractor agrees with the owner to erect a building and 
 furnish the materials for a sum certain, to be paid as the work pro- 
 gresses, with a reservation of twenty-five per cent, until completed, 
 and he abandons the work, having collected all that is due him except 
 the twenty-five per cent., one who has furnished the contractor with 
 materials has no lien as against the owner. Ib. 
 
 Material men and mechanics who are entitled to a lien on a build- 
 ing, but whose claims are several without any community of interest 
 in the claims themselves, may, under the statue, join as plaintiffs in an 
 equitable action to establish and enforce their lieng. Barber v. Rty* 
 nolds, 33 Cal. 491. 
 
 When a person proceeds to erect a building without making any 
 contract for the erection of the same, material men who furnish the 
 materials and mechanics wiio labor on the building, in pursuance of 
 section seventeen of the Lien Law of 1862, are entitled to liens with- 
 out making a written contract, even if the value of the materials fur- 
 nished or labor performed exceeds two hundred dollars. Ib. 
 
GENERAL INDEX. 
 
 Sec. No. of 
 Page, of Act. Form. 
 
 ACTIONS. 
 
 Within what time actions on liens to be brought 26 8 
 
 Must be brought in district court 27 10 
 
 Who must be parties to 27 10 
 
 ALTERATIONS. 
 
 Lien given for 5 1 
 
 Preferred to all prior liens 15 3 
 
 ANSWER 
 
 Averments in on setting up want of parties 85 . . 26 
 
 AQUEDUCT. 
 
 Lien given for construction of 5 1 
 
 AKCHITECT. 
 
 To be deemed agent of owner 6 1 
 
 His certificate of no liens should be procured 8 
 
 Form of statement by contractor to 55 . . 5 
 
 ARTISAN. 
 
 His right to lien 5 1 
 
 His lien on personal property repaired. 35 15 
 
 Common law concerning 35 
 
 Form of advertisement of sale of 95 . . 34 
 
 How to be published 46 15 
 
 ASSIGNEE OF LEASE. 
 
 Purchaser under lien sale to be 13 2 
 
 His liability as such 13 
 
 How he may relieve himself therefrom 13 
 
 ATTACHMENT. 
 
 May be issued for debt secured by lien 34 13 
 
 Affidavit in such a case what to state 45 13 
 
 Amount collected thereon to be credited on lien 46 13 
 
 ATTORNEYS' FEES. 
 
 To be allowed by the court to lien-holder 29 10 
 
 Clause in decree allowing 78 . . 21 
 
 BOND. 
 
 From contractor to owner, necessity of 7 
 
110 INDEX. 
 
 Sec. No. of 
 
 Page, of Act. Form. 
 
 Form of such bond 54 . . 4 
 
 BRIDGE. 
 
 Lien for construction of 5 1 
 
 BUILDING. 
 
 Convenient space around same covered by lien 10 2 
 
 Clause in decree determining Auch space 79 . . 21 
 
 Necessity of 30 
 
 Purchasers right to remove on paying rent 16 3 
 
 To be removed in thirty days 16 3 
 
 BUILDING CONTRACT. 
 
 How owner may be protected in 8 
 
 Form of builder's contract 48 . . 1 
 
 Shorter form 51 . . 2 
 
 Bond for performance of 54 . . 4 
 
 CITY LOT. 
 
 Lien for improving 9 9 
 
 Form of claim of lien for 65 . . 14 
 
 Form of complaint on such lien 90 . . 31 
 
 CLAIM FOE LIEN. 
 
 What it shall state 19 5 
 
 When it must be filed 18 5 
 
 Claim of contractor. 56 . . 7 
 
 Verification of claim by agent 59 . . 8 
 
 Claim by material man 59 9 
 
 Claim by journeyman carpenter 60 . . 10 
 
 Claim on contiguous buildings 62 . . 11 
 
 Claim by sub-contractor 63 . . 12 
 
 Claim by miner 64 . . 13 
 
 Claim for improving city lot 65 . . 14 
 
 COMPLAINT. 
 
 On claim of material man 67 . . 15 
 
 For grading city lot 92 . . 32 
 
 On claim of miner 94 . . 33 
 
 Of lien-holder for repairs 90 . . 31 
 
 By owner against contractor for excess 89 . . 30 
 
 CONSTITUTION. 
 
 Protects rights existing before the act 11 
 
 CONTRACT. 
 
 What is, completion of 22 
 
 F6rm of contract with builder 48 . . 1 
 
 Shorter form 51 .. 2 
 
 With mason and plasterer 53 . . 3 
 
 CONTRACTOR. 
 
 To file lien in sixty days 18 5 
 
INDEX. Ill 
 
 Sec. No. of 
 Page, of Act. Form. 
 
 Held agent for owner. 6 1 
 
 His employees not bound by his contract 7 
 
 Form of his claim of lien 56 . . 7 
 
 Form of statement by him of no liens 55 . . 5 
 
 Liens to be deducted from his claim 33 11 
 
 Complaint against him by owner for excess 89 . . 30 
 
 CONTIGUOUS BUILDINGS. 
 
 How claim of lien on to be sta ted 26 7 
 
 Effect if not so stated 26 7 
 
 Form of claim on 62 . . 11 
 
 DECEEE. 
 
 Must describe convenient space around building 30 
 
 Form of decree making contractor liable for excess 88 . . 29 
 
 Decree setting forth rights of different parties 77 . . 21 
 
 DEMUEEEE, 
 
 To complaint for want of parties 84 
 
 DESCEIPTION OF LAND IN CLAIM. 
 
 What description necessary 20 
 
 DIGEST 
 
 Of the decisions of supreme court under former acts .... 97 
 DITCH. 
 
 Lien for construction of 5 1 
 
 EXECUTION. 
 
 Eeturn of sheriff showing deficiency 81 . . 22 
 
 Form of for deficiency 82 . . 23 
 
 FENCE. 
 
 Lien for erecting 5 1 
 
 INTEEVENTION. 
 
 Petition of lien-holder for 85 . . 27 
 
 LABOEEE. 
 
 Eight of to lien -. 5 1 
 
 When to file claim 19 5 
 
 Form. of laborer's claim 62 .. 11 
 
 Form of journeyman's claim 60 . . 10 
 
 LEASE. 
 
 Interest of lessee liable to lien 11 2 
 
 Effect of lessee forfeiting his interest 11 2 
 
 Lessor bound to receive arrears of rent from purchaser .. 11 2 
 
 Lease cannot be divided 14 
 
 Purchaser to become assignee of 14 2 
 
 His liabilities as such . . ... 13 .... 
 
112 INDEX. 
 
 Sec. Wo. of 
 Page, of Act. Form. 
 
 LIEN ACT. 
 
 To be strictly construed 25 
 
 Decisions of supreme court in reference to 25 
 
 Difference between and act of 1862 24 
 
 Kepeals all former acts 36 17 
 
 LIEN. 
 
 How long it continues 26 8 
 
 When it attaches 32 
 
 On what land around building 10 2 
 
 Not denned as to some improvements 9 
 
 When lien ceases 26 8 
 
 LIS PENDENS. 
 
 Notice of 76 . . 20 
 
 MACHINERY. 
 
 Lien on 5 1 
 
 MACHINIST. 
 
 Bight to lien 5 1 
 
 MATEEIAL MAN. 
 
 His right to lien 5 1 .. 
 
 When to file claim 19 5 
 
 When it attaches 32 .. 
 
 Form of claim by 59 .. 9 
 
 Complaint on 67 .. 15 
 
 When materials not subject to execution 31 12 
 
 MINER. 
 
 His lien for labor 5 1 
 
 When to be filed 19 5 
 
 Form of 64 . . 13 
 
 Complaint on 94 .. 33 
 
 MORTGAGE. 
 
 Lien preferred to subsequent mortgage 14 3 
 
 And to unrecorded mortgage 15 3 
 
 Lien for repairs preferred to all prior mortgages 15 3 
 
 Effect of the law 15 
 
 Complaint claiming preference 90 . . 31 
 
 How preferred in distribution of proceeds 32 10 
 
 NON-RESIDENT DEFENDANT. 
 
 How publication of summons against to be made 28 10 
 
 Form of affidavit for order of 73 . . 17 
 
 Order of publication on 74 . . 18 
 
 Order appointing attorney for 75 . . 19 
 
 OWNER. 
 
 When personally liable 7 1 
 
INDEX. 113 
 
 Sec. No. of 
 Page, of Act. Form. 
 
 Form of notice that he will not be responsible 56 16 6 
 
 His interest in the land liable 18 2 
 
 His name to be stated in claim 21 5 
 
 To recover of contractor excess paid 32 11 
 
 Clause in decree for judgment for excess 88 . . 29 
 
 Form of complaint for excess 89 . . 30 
 
 Notice to contractor to defend action 87 . . 28 
 
 PAKTIES TO ACTION. 
 
 All lien-holders and persons personally liable to be 27 10 
 
 RAILROAD. 
 
 Lien on 5 1 
 
 RECORDER. 
 
 Claim to be filed in office of 26 6 
 
 His fees 26 6 
 
 REFERENCE. 
 
 Order of where there are various claims 84 . . 24 
 
 REPAIRS. 
 
 Lien given for 5 1 
 
 To be preferred to all prior liens 15 3 
 
 Complaint for and to have preference declared 90 . . 31 
 
 SUB-CONTRACTOR. 
 
 Declared agent of owner 5 1 
 
 - When to file claim 19 5 
 
 Form of his claim 63 . . 12 
 
 SALE. 
 
 Proceeds of, how divided 31 10 
 
 SUMMONS. 
 
 Form of in action for lien 71 . . 16 
 
 TUNNEL. 
 
 Lien on 5 1 
 
 VERIFICATION OF CLAIM. 
 
 Form of by party 58 . . 7 
 
 Form of by agent 49 8 
 
 WAGON ROAD. 
 
 Lien on 5 1 
 
 WHARF. 
 
 Lien on , . 51 
 
E R R, A T A.. 
 
 Page 42, line 16, for " effects," read " offsets." 
 
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