merchandise. The subcontractor must also, the same as the principal contractor, show a substantial performance of his contract, before he is entitled to a lien. It must be borne in mind that a subcontractor of a subcontractor has no lien. The lien of the subcontractor is not limited to the amount due the contractor at the time he gives notice of his lien, but attaches for whatever may thereafter become due to him. Where there has been partial non-performance of a contract by the principal contractor, statements made to the owner of a building or his architect, by a subcontractor to the effect that the credit of the principal contractor was perfectly good and that he had always paid his bills, does not deprive the subcontractor of the right to assert his lien, although the owner paid the principal contractor after such statements were made, if he was not misled by such statements or induced thereby to make such payment.

Filing of lien.-No lien can exist unless within six months from the date of the last charge for performing such work or labor or the furnishing of materials, a claim for lien shall be filed in the office of the clerk of the circuit court. Where different materials are furnished at different times under one contract, the time for filing a lien begins to run from the date of the last act done in executing the contract, and where, in a Wisconsin case, the owners of a mill bought certain machinery and two weeks after the completion of the contract bought additional appliances for increasing the power, and the party furnishing the machinery, within six months from the time of furnishing the additional appliances, but more than six months from the time when the original contract was completed, filed a lien for the whole materials furnished, it was held that the lien was effective as to the additional appliances but not as to the original machinery.

And where a party agreed to raft and boom all the logs in a certain stream and all logs were delivered July 11th, but in October the party delivered four more, the last delivery did not keep alive the right to file a lien for the whole amount, where the lien was required to be filed within thirty days. Where a mechanic applied certain gas fixtures to a building, it was held that the time for filing a lien began to run when the work was completed or accepted so that the contractor might recover for the same, and the fact that the owner afterwards had a counterclaim because the fixtures

were not as represented and the mechanic made certain changes in the fixtures in settlement of the difference, did not extend the time in which the lien must be filed. And if it is provided in a building contract that the architect shall be paid a certain percentage of the cost of the building on his certificate of the completion of the building, the time in which he may file a lien begins to run from the time such final certificate of completion is filed.

Priorities.-A lien for work or material is paramount to any other lien on the property originating subsequent to the commencement of the improvement or building. When several mechanic's liens are filed, the holders share equally in the proceeds of sale in case of foreclosure; this puts all holders of mechanic's liens on the same building on an equal footing. The attaching to the realty of any material used in constructing a building is the commencement of such building or repair within the meaning of the lien law. Our statute make a mechanic's lien subordinate to a vendor's lien for the purchase price, nor is a mechanic's lien prior to a mortgage on the same property which was executed before the lien attached but was not recorded until after such construction was commenced, but where money is loaned and a mortgage executed after the commencement of the construction of a mill and the making of a contract for machinery to be placed therein, the lien of the mortgagor on the debtor's interest in the premises is subsequent to the lien for machinery. Our statutes make an exception in favor of building and loan association mortgages and their mortgages have priority over all liens filed upon the mortgaged premises subsequent to the recording of such mortgage.

Notice. It is essential to the validity of a lien of a subcontractor that notice should be given as prescribed. The notice in writing required to be served by a subcontractor must be served on the owner or his agent within sixty days of the performance of the last work, or furnishing of the last material, if to be found in the county; otherwise, the notice may be filed in the office of the clerk of the circuit court for the county. Where a sub-contractor gave notice that he claimed a lien "under and by virtue of the laws of Wisconsin in such case made and provided," it was held sufficient. The description of the property in a notice given by the subcontractor cannot be amended after the sixty days have ex

pired, the purpose of the notice being to give the owner notice so that he may withhold the amount claimed from the principal contractor. The notice must be served on the owner personally or his agent.

How a lien may be waived or lost.-A lien, being merely a right or personal and individual privilege which certain persons have to charge the property of another with a certain debt, may be waived and this may be done in various ways. Thus a lien may be waived by a principal contractor by providing in the contract that no lien shall exist for the material and labor furnished, and this may be done after the material or labor has been partly or wholly furnished. The lien is, of course, lost if a claim for it is not filed within the statutory time, or if no notice is given by a subcontractor. While our statutes provide that the taking of a note or other evidence of indebtedness shall not be deemed a waiver of a lien, yet if the parties expressly stipulate that a note is in payment of a lienable claim, it will destroy the lien. Thus, where two contractors furnished material, and one filed a lien, but the other thereafter took a chattel mortgage on the material furnished by him, the latter waived his right of lien and the property covered by the chattel mortgage was subject to the lien of the former. Filing of a lien within the statutory time, but after the owner's death, is effectual. Assignment of a lien waives the right to lien unless the notice in writing of such assignment, together with a copy thereof, is served upon the owner of the property affected by the claim for lien within fifteen days after the assignment is made. This must be done or the lien is lost.

Equitable liens.-The law as to equitable liens is very indefinite, and an exposition of the same can hardly be attempted in a work of this character. An equitable lien is one which courts of equity alone will recognize. Equity treats that as done which ought to be done and will decree that there is a lien in certain cases when it is in the interests of justice to do so. Pomeroy in his work on Equity Jurisprudence says: "It is simply a right of a special nature OVER the thing, which constitutes a charge or incumbrance upon the thing, so that the very thing itself may be proceeded against in an equitable action, and either sold or sequestered under a judicial decree, and its proceeds, in the one case, or its rents and profits in the other, applied upon the demand

of the creditor in whose favor the lien exists." The form of the contract which creates such a lien is immaterial, but there must be a definite intention to charge some particular property with a debt or other obligation, and there must be a definite description of the property sought to be charged.

Equity sometimes also gives a right equivalent to a lien where no express contract has been made. Thus, where a person in good faith supposes himself to be the owner of property and makes permanent improvements thereon, if the real owner seeks equitable aid to establish an equitable right to or regarding the property, he will be required to repay the amount thus expended, for "He who seeks equity must do equity."

CHAPTER XXXI.

EXEMPTION AND HOMESTEAD RIGHTS.

SECTION I.

EXEMPTIONS.

Introductory.-At common law, all the property of a debtor was subject to seizure on execution to pay his debts. Not only this, but his body might be taken and held in prison until the debt was paid. Our state constitution provides that no person shall be imprisoned for debts arising out of or founded on a contract, express or implied, and the privilege of the debtor to enjoy the necessary comforts of life shall be recognized by wholesome laws, exempting a reasonable amount of property from seizure or sale for the payment of any debt or liability. In compliance with this constitutional provision, our legislature has passed liberal exemption laws. The exemption statutes are liberally construed in order to promote the object of their enactment. They are intended to benefit the laboring classes, and to enable them to better provide for those dependent upon them for support and maintenance, and to secure the family of an indigent debtor against want and distress for the necessaries of life.

What personalty is exempt.-Our statute provides: "No property hereinafter mentioned shall be liable to seizure or sale on execution on any provisional or final process issued from any court or any proceedings in aid thereof except as otherwise specially provided in these statutes:

1. The family bible.

2. Family pictures and school books.

3. The library of the debtor and every part thereof; but this provision shall not be deemed to extend to circulating libraries.