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for he may do this, as well as give the bulk of his real estate by way of specific legacy. But, although the personal estate is thus decreed the general and primary fund for the payment of debts, and still remains so, notwithstanding the real estate is also chargeable collaterally, yet the rule is otherwise, or rather is differently applied, when the charge of the debt is primarily and principally upon the real estate, and the personal security of covenant is only collateral, for the primary fund ought, in conscience, in all cases, to exonerate the auxiliary fund. The debt or incumbrance may be, in its nature, real, or it may become so by the act of the person who has the power of charging both the real and personal funds; or the land, although it be auxiliary only to the personal estate of the original contractor of the debt or incumbrance, may yet become the primary fund, as between itself and the personal estate of another person, who may take the land either by descent or purchase, subject to the charge. In both these cases the personal estate is charged (if at all) only as a security for the land, and it ought to have the same measure of equity as the land is entitled to when it is pledged as a security for a personal debt." See Duke of Cumberland v. Codrington, 3 Johns. Ch. 229, 230, and cases there cited.

There is no dispute about these principles, but the appellants insist that, however this, may be and is, by the act of Mrs. Flood in making herself personally responsible by bond for this debt, she has made the personalty the primary fund to this debt of hers. Up to the point when Mrs. Flood bought at the judicial sale made January 17, 1889, there was no debt due from her personally on account of this Dillard debt. It was in no degree her debt. It was a debt subjecting the real estate, and that only. The real estate was not only primarily, but solely, the fund which could be looked to. By her purchase and the execution of her bonds to pay this debt, upon the delivery of the land to her unincumbered she bound herVOL. LXXXIX-14

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self, and so provided another fund out of which the said debt. could be satisfied-to-wit, her personal estate. But the debt

which she thus agreed to pay was the same debt which rested originally, primarily, and solely on the real estate. The charge of the debt was principally and primarily upon the real estate, and this personal undertaking of hers was only collateral. The land, being the primary fund, is bound to exonerate the auxiliary fund. If the primary fund is or shall prove to be insufficient to satisfy the debt originally and primarily fastened upon it, then the auxiliary fund may be called into requisition. This is the effect of the act of Mrs. Flood. Before her purchase her personal estate was not bound at all; since her purchase her personal estate is bound, but only secondarily; and the land-the real estate in the hands of her heirs is bound primarily to pay the debt originally charged on it, and which was charged on it when it came into the hands of Mrs. Flood. As between her creditors the question would be immaterial; but between her heirs and her distributee the land remains the primary fund, as it has been from the first, to satisfy this debt. The circuit court having so decreed, we perceive no error in the said decree, and the same must be affirmed.

JUDGMENT AFFIRMED.

Syllabus-Statement-Opinion.

Wytheville.

MOORE V. ROLIN.

June 16th, 1892.

1. MECHANIC'S LIEN-Premature filing-Damages. —A sub-contractor files a mechanic's lien before completion of the work, contrary to Code, § 2476. HELD:

He is liable to an action for damages for injury thereby done the contractor.

2. IDEM-Declaration-Special damages.—In such action the declaration should charge some special damage to plaintiff, as the language of the alleged lien does not necessarily import injurious defamation; but it is not necessary to give the name of any one whose custom has been lost to the plaintiff, nor to state that the alleged lien has been ended by limitation or decree.

3. REVIEW OF CASES.-Young v. Gregorie, 3 Call. 446, distinguished from case at bar.

Argued at Richmond. Decided at Wytheville. Error to judgment of circuit court of city of Richmond in an action for libel in prematurely filing a mechanic's lien, wherein Moore was plaintiff and Rolin defendant. Court below sustained demurrer to declaration, and plaintiff appealed. Opinion states the case.

Courtney & Patterson, for plaintiff in error.

L. O. Wendenburg, for defendant in error.

LEWIS, P., delivered the opinion of the court.

The declaration states, in substance, that the plaintiff, who is the plaintiff in error here, was, in the fall of the year 1890,

Opinion.

a carpenter and builder, of good name, fame, and credit; that about that time he was employed by the Virginia Land and Loan Company to build certain houses in the city of Richmond; that in the execution of this contract the plaintiff employed the defendant, as a sub-contractor, to do the brick-work, at a certain price, to be paid at a certain time; that before the work was done, and before anything was due by the plaintiff to the defendant, the latter maliciously, and without probable cause, intending to injure the plaintiff in his business, placed upon record in the clerk's office of the chancery court of the city of Richmond a mechanic's lien against the property of the Land and Loan Company, for the improvement of which the plaintiff had contracted as aforesaid; that the defendant also notified the company not to pay anything to the plaintiff on account of the said improvement, without the defendant's direction or approval. The meaning of all which, it is averred, was to charge publicly that the plaintiff was either unwilling, because dishonest, or unable, because insolvent, to pay whatever was justly due by him to the defendant on account of said work.

It is also averred that in consequence of the said wrongful acts of the defendant, the Land and Loan Company did, for a long time, and against the consent of the plaintiff, retain the price of said improvement, notwithstanding a large sum was due the plaintiff on account thereof, during all which time the plaintiff was deprived of the use of the money so due him as aforesaid, to the great injury of his name and credit, involving loss of customers in his business, &c.

There was a demurrer to the declaration, which was sustained by the judgment complained of; and the question thus presented is the single question to be determined.

That the lien was prematurely filed by the defendant is clear. The lien in favor of a sub-contractor in such cases is given by section 2475 of the Code, and by section 2477 it is

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provided that any sub-contractor, in order to perfect the lien so given him, shall comply with the provisions of section 2476. He must also give notice in writing to the owner of the property, or his agent, of the amount and character of his claim.

It is essential, therefore, to the validity of the lien that it be perfected according to the provisions of section 2476, and that section reads as follows:

"A general contractor, in order to perfect the lien given him by the preceding section, shall, at any time after the work done, or materials furnished by him, and before the expiration of thirty days from the time such building or structure is completed, or the work thereon otherwise terminated, file in the clerk's office of the county or corporation court of each county or corporation in which the building or structure, or any part thereof, is, or in the clerk's office of the chancery court of the city of Richmond, if the said building or structure is within the corporate limits of the said city, an account showing the amount and character of the work done or materials furnished, the prices charged therefor, the payments made, if any, and the balance due, verified by the oath. of the claimant or his agent, with a statement attached declaring his intention to claim the benefit of said lien, and giving a brief description of the property on which he claims. the lien."

It is also provided that such account and statement shall be recorded by the clerk in a book to be kept for the purpose, called the "Mechanic's Lien Record," and that from the time of such filing all persons shall be deemed to have notice thereof.

It is apparent from the language of this section that no lien can be perfected, in a case like the present, before the work for which the sub-contractor engages is donei. e., before his contract is completed. The statutes of the several states on this subject are not uniform. In