cording to their judgment, pay the same without litigation, and that the whole cost of the adjustment shall be borne and paid by the contractor and his bondsmen out of any sums due or to become due the contractor. The expression, "and that the contractor shall pay all artisans, materialmen, etc.," in connection with what immediately precedes and follows it, cannot be construed to mean an express covenant to pay for materials used in the construction of the building.

A majority of the court, from a consideration of the provisions of the bond, in connection with the contract it was given to secure, is of the opinion that the bond was taken to indemnify the church from claims that might be asserted against its building, and that it was not made for the benefit of those who might furnish material to be used in the construction of the building. The case of Smith v. Bowman, 32 Utah, 33, 88 Pac. 687, 9 L. R. A., N. S., 889, contains a clear and instructive discussion of this subject, with a full and complete review of all the authorities. Hence, we are of the opinion that neither the materialmen nor the church for their benefit were entitled to recover against the surety on the contractor's bond.

The chancellor erred in holding that a church is subject to a mechanic's lien, and that part of the decree of the court fixing a lien on the church building and the property on which it is situated in favor of lien claimants is reversed.

220 The chancellor also erred in rendering judgment in favor of the church for the benefit of the lien claimants against the Eureka Stone Company, a surety on the principal contractor's bond, and the decree of the chancery court in that respect is reversed. In all other respects the decree is affirmed.

Chief Justice Hill is of the opinion that the bond secures the payment of material furnished to the contractors, and that the materialmen are entitled to recover on said bond because it was made for their benefit as well as to indemnify the church, and therefore dissents from that part of the opinion which holds that the surety on the bond of the contractor is not liable to the lien claimants for the amount of materials furnished by them to the contractor and used in the construction of the building, and concurs in the remainder of the opinion.

Mr. Justice Wood and Mr. Justice McCulloch dissent from that part of the opinion which holds that a church is not

subject to mechanic's lien, and concur in the rest of the opinion.

HILL, C. J., Dissenting. As indicated in the opinion of Mr. Justice Hart, I disagree with one conclusion reached by the majority of the court, and that is, that the bond is only one of indemnity against liens. Article 15 says: "That there shall be no liens filed on said building or work, either for labor done thereon or for materials furnished in its construction, and that the contractor shall pay all artisans, materialmen and laborers doing work on or about said building or other work; and if, for any cause, such lien shall be filed by any person, then and in such case the contractor shall pay and satisfy the amount that may be due and owing," etc.

As seen, this contains various covenants, among others the direct covenant that the contractor shall pay all artisans, materialmen and laborers doing work on or about said building or other work, and I think it unwarranted to qualify that positive agreement by limiting it to pay for liens only. The payment or indemnity against liens is abundantly provided for, and I think also the payment of all debts incurred to artisans, materialmen and laborers is equally provided for, and that the obligation is as much an obligation to pay as it is an obligation of indemnity.

The result of these views is, I reach the same conclusion which the majority reach, so far as the Eureka Stone Company 221 is concerned, as it occupied the dual relation of debtor and surety; but as to the other debtors I dissent from the refusal to give them judgment on the bond. I concur in all other parts of the opinion and the judgment.

A Mechanic's Lien cannot be Enforced against public buildings: Pittsburg Testing Laboratory v. Milwaukee Electric Ry. etc. Co., 110 Wis. 633, 84 Am. St. Rep. 948; Noonan v. Hastings, 101 Ky. 312, 72 Am. St. Rep. 419. A public library building erected by a town for free public use is not subject to a mechanic's lien: Young v. Inhabitants of Falmouth, 183 Mass. 80, 97 Am. St. Rep. 418. Neither is a public schoolhouse: Mayhofer v. Board of Education of San Diego, 89 Cal. 110, 23 Am. St. Rep. 451; Charnock v. District Township of Colfax, 51 Iowa, 70, 33 Am. Rep. 116; or a courthouse: Whiting v. Story County, 54 Iowa, 81, 37 Am. Rep. 189; Board of Commissioners v. O'Conner, 86 Ind. 531, 44 Am. Rep. 338.

BIGHAM v. DOVER.

[86 Ark. 323, 110 S. W. 217.]

A JOINT EXECUTION upon Two Separate Judgments in Favor of Two Plaintiffs is Void, and so also is the sale made thereunder. The result cannot be avoided by amending the writ. (p. 1097.)

Shaver & Pipkin, for the appellant.

323 WOOD, J. Appellee bought a saddle for twelve dollars at a sale under the following execution:

"County of Pope,

Town of White.

"The State of Arkansas to any constable of Polk County: You are hereby commanded that of the goods and chattels of E. T. Bigham you cause to be made the sum of nine dollars ($9) which W. W. Cranford late before me, a justice of the peace for said county, recovered against him for his costs in a replevin suit and also costs in a suit wherein S. S. Crockett was plaintiff and W. W. Cranford and F. T. Bigham were defendants, and that you have said sum of money within thirty days to render to said W. W. Cranford for his costs aforesaid.

"Witness my hand as such justice this the 16th day of September, 1906. B. F. MCMILLAN, J. P."

The sale was regular.

The execution was based on two judgments against appellant in the justice court, aggregating the sum of nine dollars for costs. The judgments were in favor of different parties. The judgments were valid. Appellants, claiming that the execution was 324 void, and that the sale thereunder was void, brought replevin against appellee for the saddle. The cause was tried by the court sitting as a jury, and the above appear as the undisputed facts.

The court found that the sale was valid, and that the title to the saddle was in appellee, but that appellant was entitled to the difference between twelve dollars, the amount for which the saddle was sold, and five dollars and fifty cents, the amount of the Cranford judgment, and rendered judgment accordingly. The appellant duly prosecutes this appeal.

Our statute provides that: "An execution may issue upon any final judgment, order or decree of a court of record for a liquidated sum of money, and for interest and costs, or for costs alone"; Kirby's Digest, sec. 3203.

There is no law or rule of practice that authorizes a single execution for the amounts of two separate and distinct judg ments: 17 Cyc. 932. A joint execution upon two separate judgments is not voidable merely, but void: Merchie v. Gaines, 5 B. Mon. (Ky.) 126; Doe v. Rue, 4 Blackf. (Ind.) 263, 29 Am. Dec. 368. Such an execution is defective, not in form merely, but also in substance, and is therefore not susceptible of amendment: See Blanks v. Rector, 24 Ark. 496, 88 Am. Dec. 780; Hightower v. Handlin, 27 Ark. 20; Hall v. Doyle, 35 Ark. 445; Jett v. Shinn, 47 Ark. 373, 18 S. W. 693; and Downs v. Dennis, 83 Ark. 71, 119 Am. St. Rep. 120, 102 S. W. 699, as to executions that may or may not be amended. An execution based on a valid judgment, but which contains an excessive amount only, may, according to some decisions, be amended: Hunt v. Loucks, 38 Cal. 372, 99 Am. Dec. 404; Bogle v. Bloom, 36 Kan. 512, 13 Pac. 793; Otis v. Nash, 26 Wash. 39, 66 Pac. 111. But this not that case. The ruling of the court eliminating the amount of one of the judgments did not cure the error of taking and selling appellant's property under process that was absolutely void. Such error was prejudicial, and could not be cured by amendment. Appellee acquired no title by his purchase at a sale under the void execution.

The judgment is therefore reversed, and the cause is remanded for new trial.

Hill, C. J., and McCulloch, J., dissent.

As to What Defective Executions may be cured by amendment, see the note to Kipp v. Burton, 101 Am. St. Rep. 550. Where a fieri facias against two defendants is levied on land "as the property of the defendant," the court may, after the sale, allow the officer, who is still in office and present in court, to amend his entry of levy by naming which of the two defendants' property was levied upon: Dorminey v. De Lang, 130 Ga. 618, 124 Am. St. Rep. 193. On the amendment of writs of scire facias, see the note to Bank of Eau Claire v. Reed, 122 Am. St. Rep. 96.

CHEROKEE CONSTRUCTION COMPANY v. BISHOP. [86 Ark. 489, 112 S. W. 189.]

FORFEITURES-Enforcement of in Equity.-Though equity will not ordinarily enforce a forfeiture, it will do so where the forfeiture works equity and protects the rights of the parties. (p. 1104.)

LEASES Forfeiture of in Equity.-Where a lease provides that all machinery placed on the property by the lessee shall remain thereon until the royalties reserved are paid, and that the leased property shall be operated for mining purposes with due diligence, and if it remains idle for more than thirty consecutive days the lease shall be forfeited, the forfeiture arising from the removal of such machinery and the failure to prosecute such work will be enforced in equity. (p. 1108.)

MINING FIXTURES, When Remain the Property of the Lessee. If a lease of a mine provides that the machinery placed thereon may be removed after the royalty reserved is paid, such machinery becomes a removable fixture, and remains the property of the lessee. The only interest which the lessor has therein is a lien for unpaid royalty. (p. 1110.)

Winchester & Martin, for the appellant.

Sam R. Chew, for the appellee.

491 BATTLE, J. On the twenty-sixth day of February, 1901, Araminta D. Bishop and others leased certain lands to Jerry M. Cravens for a period of thirty years. The lease is as follows:

"This contract and agreement, made and entered into this 26th day of February, A. D. 1901, by and between Araminta D. Bishop, widow of R. A. Bishop, deceased, Titula W. Hocott and Thomas Hocott, her husband, Lee S. Bishop and wife. Hay Bishop, Almira T. Shelton and her husband, John H. Shelton, Ben Bishop and wife, Minnie Bishop, of Sebastian County, Arkansas, parties of the first part, and Jerry M. Cravens of Sebastian County, Arkansas, party of the second part.

"Witnesseth: That the parties of the first part, for themselves, their heirs, executors, administrators and assigns, in consideration 492 of the sum of one dollar to them in hand paid by the party of the second part, the receipt whereof is hereby acknowledged, and for the further consideration and covenants hereinafter mentioned, have leased and do hereby lease and let to the party of the second part, his heirs, executors and assigns, the following described lands for the purpose hereinafter named situated in the Greenwood District of Sebastian County, State of Arkansas, to wit: the northeast quarter section thirteen and north half of northwest quarter and north half of the southeast quarter of northwest quarter, sec