amended and made more definite, when it does not appear what the facts were.1 So a proceeding to enforce a mechanics' lien. may be converted by amendment into an ordinary action for work done and materials furnished.2 1. What Amendments Allowed.-Amendments which do not change the cause of action are allowable.3 If it appear that no lien can be established under the amendment, the privilege will be denied, or if the original proceeding so utterly fails to comply with the statute as to be a nullity, and the time has passed in which to begin proceedings, no amendment which amounts to an entire new proceeding will be allowed. A court has no power to reform by amendment an insufficient notice. But a complaint or summons may be corrected under the general power of amendment. A claim is not amendable, after the statutory period for filing it has elapsed.8 2. Parties. Where a new party defendant is brought into a suit to enforce a mechanics' lien by amendment of the petition, the suit as to him is brought only from the time he is made a party, and it can have no relation back, so far as he is concerned, to the time of bringing suit against the original defendants. The statute in Pennsylvania relating to mechanics' liens, does not authorize the introduction by amendment of an owner after the time within which a lien against him should have been filed.10 1. Broderick v. Poillon, 2 E. D. Smith (N. Y.) 554 2. Dunning v. Stovall, 30 Ga. 444. 3. Lackner v. Turnbull, 7 Wis. 105; Stevens v. Brooks, 23 Wis. 196; Larkin v. Noonan, 19 Wis. 82; Vilas v. Mason, 25 Wis. 310; Sweet v. Mitchell, 15 Wis. 641; Newton v. Allis, 12 Wis. 378; Newman v. Jefferson City etc. R. Co., 19 Mo. App. 100; Sherry v. Schraage, 48 Wis. 93. Under the act of 1863, the court is not bound to allow an amendment, introducing an entirely new defence. McGraw v. Godfrey, 56 N. Y. 610; s. c., 14 Abb. Pr. (N. S.) 397- See Gambling v. Haight, 14 Abb. Pr., N. S. 398 n. An amendment should not be allowed in a mechanics' lien proceeding and a decree entered nunc pro tunc in the absence of notice. Littlefield v. Schmoldt, 24 Ill. App. 624. Notice of the filing of amendment must be given to the defendant. Haight v. Schuck, 6 Kan. 192. 4. Phillips Mech. L., § 427; Bailey v. Johnson, Daly (N. Y.) 61. 5. Phillips Mech. L., § 427; Witte v. Meyer, 11 Wis. 295; Nason Mfg. Co. v. 6. Lindley v. Cross, 31 Ind. 110; Vreeland v. Boyle, 37 N. J. L. 346; Beals v. Congregation B'Nai Jeshurum, 1 E. D. Smith (N. Y.) 654; Wasson v. Beauchamp, 11 Ind. 18; Duffy v. Brady, 4 Abb. Pr. (N. Y.) 432; Schmidt v. Gilson, 14 Wis. 514. 7. Witte v. Meyer, 11 Wis. 295. 8. Dearie v. Martin, 78 Pa. St. 55; Hensen v. Byrne, 2 W. N. C. (Pa.) 96. If the complaint of a subcontractor, who seeks to enforce a mechanics' lien for labor or materials, fails to show that his own contract with the contractor was made in conformity with the terms of the contractor's contract with the owner he may amend the complaint. Broderick v. Boyle, 1 Abb. Pr. (N. Y.) 319; Broderick v. Poillion, 2 E. D. Smith (N. Y.) 554. 9. Crowl v. Nagle, 86 Ill. 437; Bennitt v. Wilmington Star Mining Co., 119 Ill. 9. 10. Knox v. Hilty, 118 Pa. St. 430. 3. Time to be Made.-A plaintiff who obtains leave to amend his petition must file his amendment within the time prescribed, or not at all unless further leave be given. Notice of the filing of such amendment, or amended petition, must be given to the defendant, unless such notice is waived.1 4. Bill of Exceptions.-Where the exception is to the ruling of the judge upon all the evidence in the case, the whole evidence must be made a part of the bill of exceptions.2 5. Dismissal of Parties-After the jury is sworn and the evidence is offered, the plaintiff may file a dismissal of the cause as against some of the defendants, so far as it is sought to obtain a personal judgment against them but retain them, as defendants so far as it is sought to enforce the lien on the premises.3 XXIII. CONSTRUCTION.-Mechanics' liens being purely statutory,4 their character, operation and extent must be ascertained by the terms of the statute creating and defining them, and the courts cannot extend the statute to meet facts and circumstances for which the statute itself does not provide, but which the courts think of equal merit with those provided for by the statute. If a statute be susceptible of two constructions, one consistent with. natural equity and justice and the other not, the court should give the former construction to it.6 1. Liberally Construed.-Statutes enacted for the benefit and protection of mechanics, being eminently remedial, are liberally construed. 1. Haight v. Schuck, 6 Kan. 192. 2. Ricker v. Joy, 72 Me. 106. 3. Scoville v. Chapman, 17 Ind. 470. 4. Copeland v. Kehoe, 67 Ala. 594; Ehlers v. Elder, 51 Miss. 495; Frost v. Isley, 54 Me. 345, 351; McCay's Appeal, Pa. St. 125; Freeman v. Cram, 3 N. 37 395; Chambersburgh Mfg. Co. v. Hazelet, 3 Brewst. (Pa.) 98; Childs v. Anderson, 128 Mass. 108; Dinkins v. Bowers, 49 Miss. 219; Barnard v. McKenzie, 4 Colo. 251; Tilford v. Wallace, 3 Watts (Pa.) 141; Porter v. Miles, 67 Ala. 132; Grant v. Vandercook, 57 Barb. (N. Y.) 165; Willison v. Douglass, 66 Md. 99; Reindollar v. Flickeringer, 59 Md. 469; Wehr v. Shryock, 55 Md. 334; Shackleford v. Beck, So Va. 573; Mushlitt v. Silverman, 50 N. Y. 360. 5. Copeland v. Kehoe, 67 Ala. 594; Ex parte Schmidt, 52 Ala. 256; Barnard v. McKenzie, 4 Colo. 251, 253; Brady v. Anderson, 24 Ill. 110; Tilford v. Wallace, 3 Watts (Pa.) 141. repairing any house or furnishing materials therefor, in certain counties specified in the act, and made applicable to all the counties in the State except New York and Erie, by Laws of 1858, ch. 204 does not apply to the city of Brooklyn. Rafter v. Sullivan, 13 Åbb. Pr. (N. Y.) 262. The mechanics' lien law is to be confined strictly within the places allowed by act of assembly. Tilford v. Wallace 3 Watts (Pa.) 141. 6. Lombard v. Trustee of Young Men's Library Asso. Fund, 73 Ga. 322. 7. Hays v. Mercier, 22 Neb. 656; White Lake Lumber Co. v. Russell, 22 Neb. 126; Gilman v. Gard, 29 Ind. 291; Montandon v. Deas, 14 Ala. 33; s. c., 48 Am. Dec. 84; Barnard v. McKenzie, 4 Colo. 251; Buchanan v. Smith, 43 Miss. 90; Weathersby v. Sinclair, 43 Miss. 189; DeWitt v. Smith, 63 Mo. 263; Sharpe v. Spengler, 48 Miss. 360; Bayard v. McGraw, I Ill. App. 134; Baldwin v. MerLien Applying to Counties Do Not In- rick, 1 Mo. App. 281; Barns v. Thompclude Cities.-Chapter 402 of the laws son, 2 Swan (Tenn.) 313; Buck v. of 1854, which provides a method of se- Brian, 3 Miss. 874. See Öster v. Rabcuring a lien in favor of any person per- enean, 46 Mo. 595; Putnam v. Ross, 46 forming labor in erecting, altering or Mo. 337; Skyrme v. Occidental Mill 2. Prospective and Retrospective Laws. Statutes are not to be so construed as to have a retrospective effect, unless such construction be required in the most explicit terms; the presumption being, that they are to operate prospectively and not to impair vested rights.1 & Min. Co., 8 Nev. 219; Tuttle v. Montford, 7 Cal. 358. Compare Caussius v. Merrill, 65 Ill. 67; Bottomly v. Grace Church, 2 Cal. 90; Greene v. Ely, 2 Greene (Iowa) 508; Esterley's App., 54 Pa. St. 192; Cook v. Heald, 21 Ill. 425; Crowl v. Nagle, 86 Ill. 437; Stephens v. Holmes, 64 Ill. 336; Huntington v. Barton, 64 Ill. 502; Rothgerber v. Dupuy, 64 Ill. 452. The claims of mechanics are favored by our laws, and courts will give a free interpretation to statutes in favor of the laborer. Buchanan v. Smith, 43 Miss. 90; Weathersby v. Sinclair, 43 Miss. 189. The lien given to mechanics should not be defeated by a too rigid construction of the statutes. Barnes v. Thompson, 2 Swan (Tenn.) 313. Notwithstanding the mechanics' lien law was unknown to the common law, yet in view of the equitable character of the statute it should be liberally construed, but cannot by construction be extended to cases not provided for by the statute. Barnard v. McKenzie, 4 Colo. 251. In Tuttle v. Montford, 7 Cal. 358, it was held that the lien of the mechanic, artisan and material-man was favored in law, because those parties had in part created the very property on which the lien attached. Tuttle v. Montford, 7 Cal. 358. Where, under seventh section of the act of March 11th, 1843, as amended March 12th, 1853, Curwen's Stat., 2201, an account in this form: "L. Huesman to J. Harvey Thomas, Dr., 1854, December 22nd. To carpenter work on house as measured $951.05," was filed. Held, (1) that the same was sufficiently explicit; (2) that the fact that the amount due was only $891.53, instead of the $951.05, did not defeat the lien. SUTLIFF, J., said: "The equitable object of the statute is clearly expressed by the first section. It was to secure to the laborer his hire or reward for the construction or repair which he had made. The means devised was to permit him who had by labor, skill or material con tributed to constitute a permanent object of value to hold proprietorship pro tanto therein until paid the price thereof according to contract, if under contract, or otherwise according to the just value of such contribution. Looking thus at the object of the statute, and perceiving it to be one of an equitable character and beneficent tendency, section seven being directory to the mode of securing the object of the statute, the same ought to be liberally construed for the furtherance and attainment of such object." Thomas Huesman, 10 Ohio St. 152, 156. 2. 1. Plumb v. Sawyer, 21 Conn. 351. See Capelle v. Baker, 3 Houst. (Del.) 344; Parker v. Mass. R. Co., 115 Mass. 580; Vanderpool v. La Crosse etc. R. Co., 44 Wis. 652; Smith v. Kolb, 58 Ala. 645; Donahy v. Clapp, 12 Cush. (Mass.) 440; Donaldson v. O'Conner, 1 E. D. Smith (N. Y.) 695; Gordon v. South Fork Canal Co., 1 McAll (U. S.) 513; Townsend v. Wild, I Colo. 10; Arbuckle v. Illinois etc. R. Co., S1 Ill. 429; Central etc. R. Co. v. Henning, 2 Tex. 466; Moore v. Mausert, 5 Lans. (N. Y.) 173; Church v. Davis, 9 Watts (Pa.) 304; McCrea v. Craig, 23 Cal. 522. as Statutes are never to be construed so to operate retrospectively, unless such legislative intention is unmistakable. Vanderpool v. La Crosse etc. R. Co., 44 Wis. 652. In construing a statute a prospective operation only will be given to it unless its terms show a legislative intent that it should have a retrospective effect. Knight v. Begole, 56 Ill. 122. The act of June 11th, 1879, relating to mechanics' liens, and authorizing the amendment of the same, must be construed to act prospectively. The act confers important rights on the claimant, and subjects the building to additional liabilities and its owner to increased risks, and as it is not therefore purely remedial it cannot be held applicable to cases pending at its passage. Fohnistock v. Wilson, 95 Pa. St. 301. Payment for labor performed under a contract with a person employed by the owner of land to erect a building thereon cannot be secured by a lien on said land under Stat. 1851, ch. 343, if the After work has been done for which the laborer was entitled to a lien by statute, and before the expiration of the time within which he might proceed to enforce it, it would be competent for the legislature to provide a new and more efficacious remedy, and such lien might then be enforced according to that.1 3. Statutes Enacted Subsequent to Existing Contract.-A mechanics' lien will attach for work done or materials furnished since the act took effect, although under a contract made before that date.2 The rights of the parties are to be ascertained and fixed by the law in force when the contract was made; but such rights may be established and enforced by the law existing at the bringing of the suit.3 4. Repeal of Lien Statutes. Where two acts of the legislative assembly on the same subject are repugnant to each other, the last should be regarded as repealing the first, and this is especially so when the latter act contains a clause repealing all acts and parts of acts inconsistent with it. So where work and materials are done and furnished under a lien law which is repealed before the completion of the building, and the building is furnished after the new law takes effect, the lien thus acquired is not lost by the repeal thereof. It should be prosecuted under the new statute.5 contract with the land owner for the erection of the building was made before that statute took effect, although after its approval, even if the contract for the labor was made and the labor actually performed, after the statute was in full force. Donahy v. Clapp, 12 Cush. (Mass.) 440. Payment for labor performed under a contract with a person employed by the owner of land to erect a building thereon cannot be secured by a lien on said land under Stat. 1851, ch. 343, if the contract with the land owner for the erection of the building was made before that statute took effect, although after its approval, even if the contract for the labor was made and the labor actually performed after the statute was in full force. Donahy v. Clapp, 12 Cush. (Mass.) 440. 1. Paine v. Woodworth, 15 Wis. 298. See McCrea v. Craig, 23 Cal. 522. 2. Hauptman v. Catlin, 4 Abb. Pr. (N. Y.) 472; Sullivan v. Brewster, 1 E. D. Smith (N. Y.) 681. See Gordon v. South Fork Canal Co., 1 McAllister (U. S.) 513; Miller v. Moore, 1 E. D. Smith (N. Y.) 739. A mechanics' lien growing out of a contract entered into before the passage of the Illinois act of 1839, but not completed until after it took effect should be prosecuted under that act. Turney v. Saunders, 5 Ill. 527. In Mason v. Heyward, 5 Minn. 74, the mechanics' lien law of March 20th, 1858, was construed as between the owner and contractor to be retrospective, and to give a lien for work commenced before and finished after its passage. 3. Willamette etc. Co. v. Riley, I Oreg. 183; Andrews v. Washburn, 11 Miss. 109; Turney v. Saunders, 5 Ill. 527. After work had been done for which the laborer was entitled to a lien under section 12, ch. 153, R. S. 1858, and before the expiration of the time within which he might proceed to enforce it, it was competent for the legislature to provide a new and more efficacious remedy, as was done by ch. 215, Laws of 1860; and the lien might be enforced according to that act, although no steps had been taken for its enforcement under the former statute. Paine v. Woodworth, 15 Wis. 298, 299. 4. Purmort v. Tucker Lumber Co., 2 Colo. T. 470. See Hanes v. Wadey (Mich.), 41 N. W. Rep. 222; Meyer v. Berlandi, 39 Minn. 438; Pond Machine Tool Co. v. Robinson, 38 Minn. 272; Best v. Baumgardner, 122 Pa. 17. 5. Turney v. Saunders, 5 Ill. 527; Willim v. Bernheimer, 5 Minn. 288. 5. Successive statutes securing to mechanics and laborers liens for their labor and material furnished are all in pari materia, and are to be construed together as forming one entire system, in which prior enactments, so far as they are consistent and necessary to the proper operation and enforcement of the liens intended to be secured by the statutes, are to be held to apply to all subsequent provisions on the same subject.1 So where a statute amendatory of a former one sets forth the original statute as amended, retaining a portion of the old, omitting a portion, and incorporating therein new provisions, the effect is not to repeal and re-enact the portion retained, but such portion continues in force from the time of the first enactment; the portions omitted are abrogated, and cease to form part of the statute from the time the new act takes effect, and the new provisions also become operative from that time.2 6. Acts Repealed by Implication. It is the undoubted rule that repeals by implication are not favored. Where there is no repealing clause in a later statute, and that and a former one can stand together, and both have effect, they will generally both be held to be in force. But where a later statute, not purporting to amend a former one, covers the whole subject, and was plainly intended to furnish the only law upon the subject, the former statute must be held repealed by necessary implication.3 XXIV. JURISDICTION.-A suit to enforce a mechanics' lien may be where the land is, without reference to the residence of the The Stat. 1837, ch. 273, "to secure to mechanics and others payment for their labor and materials expended in erecting and repairing houses and other buildings," does not impair rights previously acquired under the Stat. 1821, ch. 159, on the same subject. Conner v. Lewis, 16 Me. 268. Where a law relating to mechanics' liens is repealed by a new law containing all the essential parts of the law repealed, held that the repeal of the old law does not destroy existing rights thereunder. Capron v. Strout, 11 Nev. 304; Skyrme v. Occidental Mill & Min. Co., 8 Nev. 219, 220. was Work and materials were done and furnished upon a house while the lien law of 1855 was in force, but the mechanic filed no petition or claim as required by that law before it repealed by the act of March 20th, 1858; he did not lodge with the register of deeds as required by the latter act any certificate within sixty days, nor do anything till after the act of August 12th, 1858, when instead of filing a sworn account with the register of deeds, as required by that act, he filed with the clerk of the district court a 1. Gilson v. Emery, 11 Gray (Mass.) 430; Goddard v. Boston, 20 Pick. (Mass.) 407, 410. See Germania etc. Assoc. v. Wagner, 61 Cal. 349. 2. Moore v. Mausert, 49 N. Y. 332. Woodbury v. Grimes, 1 Colo. 100. 3. Heckmann v. Pinkney, S1 N. Y. 211, 215; Shilling v. Templeton, 66 Ind. 585; Daviess v. Fairbairn, 3 How. (U. S.) 636; Norris v. Crocker, 13 How. (U. S.) 429; Farr v. Brackett, 30 Vt. 344; Wakefield . Phelps, 37 N. H. 295; D. and L. Plank road Co. v. Allen, 16 Barb. (N. Y.) 15; Burbridge v. Marcy, 54 How. Pr. (N. Y.) 446; Ellison v. Jackson Water Co., 12 Cal. 542. When a married woman makes improvements upon her separate estate by building, it is not necessary that she should contract with a view of charging such estate, as it is the law and not the contract which gives the mechanic his lien. If there is any irreconcilable conflict between the proviso to section 5 of the act touching the marriage re- · lation, R. S. 1876, p. 550, and the |