J. J. WILLIAMS and CHUMASERO & CHADWICK, for appellants.

The affidavits for a continuance showed a proper cause therefor. Civ. Prac. Act, § 158.

The respondent did not comply with the law securing liens to mechanics. He did not file with the county recorder a just and true account of his demand, after allowing all credits. Acts 1865, 333, § 6. This law is in derogation of the common law and must be strictly complied with by those who seek its benefits. It must be strictly construed. Houck on Liens, § 70; Brady v. Anderson, 24 Ill. 112.

Respondent filed his notice of lien and account in gross. The bill of items, that was furnished to appellants after this suit was brought, showed that respondent included in his notice of lien the use of a shop and tools for some of the workmen. He can only have a lien for "work and labor done and performed upon or for materials, machinery and fixtures for building," etc. Acts 1865, 332, § 1. The account required to be filed must be confined to those specific items. Any thing beyond these is fraudulent and invalidates the whole claim for a lien. Houck on Liens, $ 210.

If the account filed and proven is combined with other charges, for which no lien in given, so that it cannot be ascertained from the account filed how much of the gross charge is a lien, the whole benefit of the act is lost. Edgar v. Salisbury, 17 Mo. 271.

LAWRENCE & HEDGES, for respondent.

Appellants showed no diligence to obtain testimony of Appolonio and Rafferty. Their affidavit shows that they made arrangements with them to attend as witnesses, after the suit was commenced, and that Appolonio and Rafferty have not been beyond the reach of a subpoena. No subpœna was issued.

No exception was taken to the finding of the court below. Civ. Prac. Act, § 180. No objection was made to the introduction of the lien in evidence.

KNOWLES, J. This is an action to enforce a mechanic's lien against the Walla Walla Hotel, in the town of Helena, for work and labor done thereon in the erection of the same.

Judgment was given by the court below against Appolonio for $719, and a lien was awarded against the said property for the sum of $600.

The first error assigned is the refusal of the court below to grant a continuance on the affidavits filed and presented in the record.

The refusing or granting a continuance rests in the sound discretion of the court to whom the application is made. 11 Cal. 21; 23 id. 156.

This court cannot review this discretion, unless it was grossly abused. The court, as appears of record, upon the application of appellant, granted a continuance for one term for the purpose of allowing appellants to procure the testimony of the very witnesses named in this application. One of these witnesses, and the most important in the case, as appears by the decree, had been duly served with summons in this case, and had made default, and in law confessed the allegations of the complaint. A court, in passing upon a motion for continuance, is not confined to the statements in the affidavit, but can take into consideration those facts which are within his judicial knowledge concerning the condition of the country and the means of communication in determining whether due diligence has been used. Taking all these matters into consideration we can find no abuse of discretion.

The second point made by appellants is, that the lien should be set aside, for the reason that respondent claimed a lien for a greater amount than the court below found he was entitled to.

This court held, in the case of Mason & Duke v. Germaine, that a claim for a lien for a greater amount than a party shows himself entitled to would not vitiate the lien, if the same was unaccompanied by any fraud. This court cannot infer fraud from the facts presented in this record. The mere fact that an excess was claimed as a lien over VOL. I. 44.

what the court found the respondent entitled to is not sufficient.

The case of Edgar v. Salisbury, 17 Mo. 271, is not in point. The question of fraud was not presented in that case. All that the court then decided was, that where it appears on the face of the pleadings that a party has claimed a lien for services for which the law gives no lien in the same notice for a lien for services for which the law does give a lien, and in the notice of lien an amount is claimed in solido, and no items specifying the amount due for each service on demurrer, the court will give judgment for defendant, for the reason that it cannot separate the amount, and tell what is a valid lien and what not.

It appears from the cases cited in Houck on Liens, that there is some conflict of opinion upon this point. While we are fully aware that the statute, giving mechanics and others liens, is in derogation of common law, and provides an extraordinary remedy, yet it is a remedial statute, and should be so construed as to further the object intended. Under our statute a mechanic can claim a lien for services under an implied contract. If the strict construction claimed is to prevail, then, should a mechanic fail to determine the exact amount a court or jury, under the testimony, might find his services to be reasonably worth, his lien would fail. It appears to us that all our statute requires is, that a person wishing to avail himself of the benefits of it should honestly state his account. The term, "just and true account," does not necessarily imply more than this. Neither does "a just or true account" imply, necessarily, the exact account a jury or court might find due under the contract. The case of Hoffman et al. v. Walton et al., cited in Houck on Liens, as a case decided in Missouri, gives too strict a construction of a statute similar to ours. In the case of implied contracts it would make it useless, and afford no relief to those it was intended to. If a mechanic should make a mistake in addition, and claim one dollar more than he was entitled to, this would vitiate his lien. The definition of "just and true account," it decides,

in effect, to be an exact account. Considering the character of this statute, securing to mechanics and others liens, and the class of community intended to be protected by it, this construction of the statute may be said to stick in the bark. Houck on Liens says, "that in States where a lien is given on an implied contract, it would be doubtful whether so strict a construction would be given as in Missouri." We can see no difference in principle in the construction of the statute, whether the claim for a lien was on an express or implied contract. Such a statute should be strictly pursued, while it should be liberally construed.

The court below found no fraud on the part of the respondent.

Judgment of the court below affirmed.

Judgment affirmed.

1 347

6 245

6 501

10 506

11 274

1 347

TRAVIS et al., respondents, v. MCCORMICK, appellant.*

PRACTICE-conflicting evidence. The judgment of the court below will not be reversed if the evidence is conflicting.

MORTGAGEE-personal property-issue of diligence. It is a mixed question of law and fact to determine the issue respecting the use of due diligence by the mortgagee of personal property to obtain possession of the same. MORTGAGEE-diligence-possession of property. The mortgagee of personal property, who makes no effort to obtain the possession thereof, within a month after the maturity of his debt, does not use the diligence that is required by law.

Appeal from the Third District, Lewis and Clarke County. THE facts appear in the opinion and the report of the case at the January term, 1870 (ante, 148). The action was tried by the court, SYMES, J.

CHUMASERO & CHADWICK, for appellant.

* Case affirmed. Travis v. McCormick, ante, 148, affirmed.

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W. F. SANDERS and J. J. WILLIAMS, for respondents. The only question presented is, the sufficiency of the diligence used by respondents to secure the possession of the mortgaged property. The statement that in Illinois a mortgagee should not delay one or two days is an illustration and not the assertion of a principle. Silence might sometimes be wiser diligence than many inquiries. Travel might sometimes not be diligence. No general rule can be established. The situation of the parties and the facilities of intercourse must be considered. Reed v. Eames, 19 Ill. 594; Cass v. Perkins, 23 Ill. 383.

If the facilities for finding the property were poor, and for hiding it absolutely good, if legal proceedings were of no probable avail, the length of time making due diligence would be modified. The court below found that due diligence had been used. Appellant asks that this finding of fact be reversed. Respondents claim that there should be a rehearing on the ruling in this case, at the January term, 1870.

SYMES, J. This was an action for the possession of personal property. The plaintiffs below claimed the possession of the horse in dispute, under a chattel mortgage executed to them by the vendors of defendant, who claimed the horse as an innocent purchaser after the debt the mortgage was executed to secure had become due, and contending that the plaintiff did not take possession of the horse or use due diligence to obtain possession after the debt became due.

The case was tried before the court below, and judgment rendered for plaintiffs. Motion for new trial overruled, and appeal taken from judgment and order refusing new trial.

The only question presented in the case is, did the respondent use such diligence as the law requires, or due diligence in endeavoring to obtain possession of the horse, when the condition of the mortgage became absolute. Section 3 of our chattel mortgage law provides that the property may remain in the possession of the mortgagor until the mortgage becomes due, if it is specified in the mortgage.