and construction of the same,' and " were used in the construction of said building." Manor v. Heffner, 15 Ind. App. 299 (43 N. E. Rep. 1011). An allegation in a complaint to enforce a lien "that the work of constructing and erecting said dwelling house and barn ceased on the first day of April, 1894, and said buildings were left in an unfinished condition, and still remain in an unfinished condition", in the absence of a special demurrer thereto, is sufficient to admit proof of the exact date of such cessation. San Joaquin Lum. Co. v. Welton, 115 Cal. 1 (46 Pac. Rep. 735). After judgment has been rendered in favor of a lien claimant in proceedings to foreclose his lien it is too late to raise the objection that his complaint was insufficient in failing to allege that "he had taken no personal security" for the payment of his debt, as required by Ga. Code, § 1979. Royal v. McPhail, 97 Ga. 457 (25 S. E. Rep. 512). Where a statute (S. & B. Ann. Stat., § 3315) requires a subcontractor to notify the landowner or his agent of his intention to claim a lien, within a specified time, a complaint to enforce a subcontractor's lien must show that he gave a sufficient notice within the prescribed statutory limit. Mark Paine Lumber Co. v. Douglas Co. Imp. Co., 94 Wis. 322 (68 N. W. Rep. 1013). Utah act March 12, 1890, applied-allegations in complaint to enforce subcontractor's lien, as to contract price to be paid the contractor and the payments which have been made thereon. Morrison v. Gamble, Utah. (46 Pac. Rep. 1104).

Sec. 536. Enforcement of lien-Parties. One who has parted with all his estate in land by a conveyance thereof to the trustees of a church is not a necessary party to an action to enforce a lien for the erection of a church building under a contract with such trustees. Harrisburg Lumber Co. v. Washburn, 29 Ore. 150 (44 Pac. Rep. 390). The assignee of a mortgage upon the premises should be made a party, although his assignment is unrecorded, and his rights cannot be adjudicated by making his assignor a party. Nashua Trust Co. v. W. S. Edwards Mfg. Co., 99 Ia. 109 (68 N. W. Rep. 587; 61 Am. St. Rep. 226). Construing and applying Hill's Ann. Ore. Laws, § 3679, which provides that an action to enforce a lien for materials furnished to a con

tractor shall be defended by him at his own expense, and ne shall become liable to the owner for any judgment rendereû against the property, it is held that the contractor is not an indispensable party to an action to foreclose such a lien, but his omission may be excused by failure to object thereto. Osborn v. Logus, Ore. (42 Pac. Rep. 997). Citing, Horstkotte v. Menier, 50 Mo. 160. In an action to foreclose a subcontractor's lien, it is not improper to join the contractor and landowner as parties defendant. Royal v. McPhail, 97 Ga. 457 (25 S. E. Rep. 512). But such joinder is not essential to the validity of the action. R. C. Wilder's Sons Co. v. Walker, 98 Ga. 508 (25 S. E. Rep. 571). Applying S. & B. Ann. Wis. Stat., §§ 2271, 2603, it is held that the landowner's wife is a proper party defendant. Hausmann Bros. Mfg Co. v. Kempfert, 93 Wis. 587 (67 N. W. Rep. 1136).

Sec. 537. Enforcement of lien-Defenses. A lien for work performed by a firm cannot be defeated by showing that the contract was taken by one member thereof. Wahlstrom v. Trulson, 165 Mass. 429 (43 N. E. Rep. 183). Where the contract provides that on the failure of the contractor to properly complete the work the landowner may do so and deduct the cost therefor, a landowner who avails himself of this privilege cannot defeat the recovery of the contract price, less the cost of the work done by him, on the ground of non-performance. Charles v. E. F. Halleck Lum.

& Mfg Co., 22 Colo. 283 (43 Pac. Rep. 518). The fact that the work for which a lien was claimed was not performed in accordance with the plans and specifications furnished for it can not be urged by the owner of the property, as a defense to the lien claim, after he has accepted the work. Harrisburg Lumber Co. v. Washburn, 29. Ore. 150 (44 Pac. Rep. 390). The liability of the owner of a building to a contractor for labor to be performed thereon is pro tanto compensated and discharged by a valid claim against the contractor, the claim being due to such owner when the contract for such labor is entered into; and in the absence of fraud and collusion, the owner may insist upon such compensation against a sublienor. Stark v. Simmons, 54 O. St. 435 (43 N. E. Rep. 999). But in Missouri, it is no defense against the claim of

a subcontractor for a lien to show that the principal contractor has been paid in full. Ittner v. Hughes, 133 Mo. 679 (34 S W. Rep. 1110).

Sec. 538. Enforcement of lien-Statute of limitations. The defense of statute of limitations is waived unless pleaded. Ala. Code, § 3041, applied. Garrison v. Hawkins Lum. Co., 111 Ala. 308 (20 So. Rep. 427). Under Ind. Rev. Stat. 1894, § 7259, a complaint to enforce a mechanic's lien must be filed within one year from the date of the receipt of the notice for record in the recorder's office, but it is not necessary that summons be issued within the year. Carriger v. Mackey, 15 Ind. App. 392 (44 N. E. Rep. 266). In an action' to enforce a mechanic's lien, service of summons upon the owner within the period of limitation prescribed by statute for the commencement of such an action does not preserve the lien as against other incumbrancers who are not made parties to such an action within the period of limitation. Wood v. Dill, 3 Kan. App. 484 (43 Pac. Rep. 822). Where an action to foreclose a mechanic's lien has not become barred by the statute of limitations on account of the non-residence of the owner of the land, it is not barred as against other persons holding liens upon the premises who have been residents of the state during the entire period. Leeds Lumber Co. v. Haworth, 98 Ia. 463 (67 N. W. Rep. 383; 60 Am. St. Rep. 199). Colo. Gen. Stat., §§ 2151, 2152, construed and applied -time within which action to enforce must be brought. Tynon v. Despain, 22 Colo. 240 (43 Pac. Rep. 1039).

Sec. 539.

Enforcement of lien-Amendments. It is proper to refuse to allow an amendment of the complaint virtually changing the action from an action to foreclose a subcontractor's lien into an action to foreclose a principal contractor's lien after the expiration of the time in which the plaintiff could have filed a claim for a lien as principal contractor. Segelke & Kohlhaus Mfg. Co. v. Hulberg, 94 Wis. 106 (68 N. W. Rep. 653). A defective description cannot be amended so as to include lands in which purchasers or incumbrancers have in good faith acquired an interest subsequent to the filing of the lien. Iowa Acts 16th Gen. Assem., ch. 100,

§ 6, applied. Chicago Lum. Co. v. Des Moines Driv. Park, 97 Ia. 25 (C5 N. W. Rep. 1017). Where a statute (Wash. Laws 1893, p. 31, § 5) authorizes amendments where the interests of third parties are not affected thereby, a court will allow a verification of the lien statement to be amended by the addition of the notary's place of residence, as required by statute, as against mortgagees who acquired their liens before the filing of the statement. Sullivan v. Treen, 13 Wash. St 261 (13 Pac. Rep. 38). For construction of §§ 14, 15, of New Jersey mechanic's lien law as to amendments, see Drinkhouse v. Gregg Manuf'g Co., 58 N. J. L. 432 (33 Atl. Rep. 950). S. & B. Ann. Wis. Stat., § 3320, applied-amendment of lien claim. Mark Paine Lumber Co. v. Douglas Co. Imp. Co., 94 Wis. 322 (C8 N. W. Rep. 1013).

Sec. 540. Enforcement of lien-Personal judgment. Personal judgment may be given to a plaintiff who fails to establish his claim for a lien. Sullivan Timber Co. v. Brushagel, 111 Ala. 114 (20 So. Rep. 498); Ascha v. Fitch,

Cal. (46 Pac. Rep. 298). The right of one whose claim for a lien fails, to have personal judgment is limited to the parties to whom he sustains a contractual relation. Lowrey v. Svard, 8 Colo. App. 357 (46 Pac. Rep. 619). A decree ordering a sale of the premises upon failure of defendants to pay the amount found due within a specified time does not impose a personal liability on defendants. Bumgartner v. Hall, 163 Ill. 136 (45 N. E. Rep. 168). Applying Ala. Code, § 2346, a personal judgment cannot be rendered against a married woman for materials used in improvements on her land, in the absence of a written contract by her for their purchase. McAnally v. Hawkins Lumber Co., 109 Ala. 397 (19 So. Rep. 417). Where in an action against a land owner and his contractor to enforce a lien for materials furnished to the contractor the right of the claimant to a lien is denied, but personal judgment is given him against the contractor for the amount due him, it is error to decree that the owner pay such judgment out of funds in his hands due the contractor after he has discharged other valid liens. Kennedy & Shaw Lum. Co. v. Priet, 113 Cal. 291 (45 Pac. Rep. 336); 115 Cal. 98 (16 Pac. Rep. 903). Under S. & B. Ann. Wis. Stat., § 3324,

a complaint by a subcontractor which is insufficient to establish a lien in his favor may be sustained and personal judgment rendered thereon against the contractor for amount due him. Mark Paine Lumber Co. v. Douglas Co. Imp. Co., 94 Wis. 322 (6S N. W. Rep. 1013).

Sec. 541.

Enforcement of lien-Attorney's fees. It is held that a statutory attorney's fee cannot be allowed in addition to an attorney's fee provided for by the contract. Bolster v. Stocks, 13 Wash. St. 460 (43 Pac. Rep. 532). Where the statute provides for the allowance of a reasonable attorney's fee an allowance by the trial court will not be set aside unless it clearly appears to be unreasonable. Stimson Mill Co. v. Riley, Cal. (42 Pac. Rep. 1072). Kan. Code Civ. Proc., § 638, does not authorize an allowance of attorney's fees in the supreme court. West v. Badger Lumber Co., 56 Kan. 287 (43 Pac. Rep. 239). A statute (16 Mont. Leg. Assem., p. 172) authorizing the allowance of a reason able attorney's fee to a successful plaintiff as costs, was held to authorize the allowance of attorney's fees in the trial court, but not in the supreme court. Such statutes are to be strictly construed. Murray v. Swanson, 18 Mont. 533 (46 Pac. Rep. 411).

Sec. 542. Enforcement of lien-Evidence-Presumptions-Variance. In an action to enforce a subcontractor's lien, a statement between him and the contractor in which the price of material or labor furnished by the subcontractor is fixed and liquidated, is admissible in evidence against the owners as prima facie evidence of their value. Charles v. E. F. Hallack Lum. & Mfg Co., 22 Colo. 283 (43 Pac. Rep.. 518). Evidence of this character may be rebutted. Joost v. Sullivan, 111 Cal. 286 (43 Pac. Rep. 896). Where the plaintiff in a mechanic's lien case has complied with all the provisions of the statute relating to the lien he claims, " it is presumed that the materials were furnished or the work was done on the credit of the buildings," but evidence that the material for which a lien is sought to be enforced was charged to the contractor and did not go into the building is admissible to rebut such presumption. W. Green & Co. v. Thompson, 172