State. Under this order he invested, during | filed with the record, that the said Chancery the months of April, July and November of that year, $33,508.82 of Confederate currency in Confederate bonds. A part of the slaves were sold, but nearly all the remainder of the personal and real property, except the debts, was retained during the war in the condition it was left by the testator at his death.

At the close of the war, proceedings were instituted in the Chancery or Circuit Court of the City of Richmond, against the executor, by the residuary legatees, looking toward a settlement of the estate; and November 9, 1865, the executor filed, in that court, a bill in chancery against all the legatees, including Ann Davis and her children, to have the whole estate settled up and distributed among the parties entitled thereto. In these proceedings the executor was ordered to render an account of his transactions, before one of the commissioners of the court, and the commissioner was directed to take an account of all the assets belonging to the estate, and of all claims due by the same. A report was filed by the commissioner, February 16, 1868, to which exceptions were taken both by the executor and the residuary legatees; and May 19, 1869, the report was recommitted to the commissioner, with the exceptions, for further examination and a restatement of the accounts, if necessary. November 16. 1869, Ann Davis and her children appeared and, by leave of the court, filed an answer to the bill of the executor, in which they claimed their full rights, 516] and particularly objected to the *investments in Confederate bonds as unauthorized

Court erred in overruling the appellant's 15th exception to the report of Commissioner Evans; instead of doing which, the said court ought to have recommitted the said report as to the matter of the exception, to a commissioner of the court, with instructions to make further inquiry, and report as to the debts of the estate of Hector Davis at the time of his death, by persons residing in the State; whether any of said debts, and which of them, reported as worthless or doubtful, are now available, or might have been collected or secured by lien upon real estate or otherwise, *or by suits [517 instituted since the death of the testator, and as to any other matters connected with said debts which the said commissioner might deem material, or concerning which either of the parties might require him to make inquiry and report; but the court is further of opinion that there is no other error in the said decree than as aforesaid. Therefore, it is decreed and ordered that so much of the said decree as is above declared to be erroneous be reversed and annulled, and the residue thereof affirmed; and that the appellee, R. D. James, pay to the appellants their costs by them expended in the prosecution of their appeal aforesaid here. And it is ordered that this cause be remanded to the said Chancery Court for further proceedings to be had therein, in conformity with the foregoing opinion and decree, which is ordered to be certified to the said Chancery Court of the City of Richmond."

This judgment has been brought here by Ann Davis and her children upon a writ of error, and the executor now moves to dismiss the writ, because the judgment of the Court of Appeals is not the final judgment or decree in the suit.

Our jurisdiction upon writs of error to State Courts is confined to the final judgment or decree in a suit in the highest court of the State in which a decision in the suit can be had. R. S., 709. This, we think, is not such a judgment. It decides some of the questions involved in the controversy between the parties, but the suit itself has been sent back to the Circuit Court for further proceedings, in conformity to the opinion filed with the record. In short the judgment is one of reversal only, which, as we have uniformly held, is not a final judgment in the suit. McComb v. Comrs., 91 U. S., 1, 23 L. ed., 185; Parcels v. Johnson, 20 Wall., 654, 22 L. ed., 410; Tracy v. Holcombe, 24 How., 427, 16 L. ed., 742. After the further

and illegal, so far as they were concerned. A second report was filed by the commissioner, May 4, 1870, from which, with that of 1868, it appeared that the debts owing by the estate amounted to about $23,000; that there was in the hands of the executor United States currency to the amount of $14,188.54; that the estimated value of the real estate was $15,435; that the estimated value of Virginia state stock and furniture was $1,524; and that there were also in the hands of the executor debts due the estate, marked "good" or "doubtful," of the nominal amount of $40,000, and more. In stating the account, the executor was allowed a credit for his investments in Confederate bonds. Many exceptions were filed to the report by the residuary legatees and, among others: because the executor was credited with the amount of these investments, and because he had not been "charged with every debt reported by him 'good, and every debt reported by him 'doubt-proceedings which have been ordered in the Cirful.' unless he had obtained judgments upon cuit Court, the suit may be again taken to the them, because it was his duty to have obtained Court of Appeals, and another judgment renderjudgments against all who did not pay, and ed there. were not deemed insolvent."

At the hearing in the Circuit Court, both these exceptions were overruled, and a decree entered confirming the report, with some modifications. From this decree Ann Davis and the residuary legatees took an appeal to the Supreme Court of Appeals of the State, where the following judgment was entered, April 22, 1873:

"This day came again the parties, by their counsel, and the court, having maturely considered the transcript of the record of the decree aforesaid, and the arguments of counsel, is of opinion, for reasons stated in writing and

The object of the parties is to settle and distribute the estate of the testator, under the direction of the court. The plaintiffs *in [518 error are only interested in securing the payment of their legacy. A statement of the accounts of the executor, upon the principles settled by the Court of Appeals, may produce a fund sufficient to satisfy them. The only question upon which our jurisdiction can be invoked, arises out of the decision as to the liability of the executor to account for his investments in Confederate securities. As to this, the present plaintiffs in error, having been non-residents of the Confederate territory during the war, occu

of property, the lien claimed on one was to be considered separately from the lien claimed on the other; 3. That the notice, so far as the mill was concerned, was filed too late, the statute requiring the notice to be filed within sixty days after the completion of the work; and that the occasional repairs subsequently made could not be added to the work done months before, so as to render the whole work one continued performance, for which a single lien could be claimed within sixty days after the last repairs; 4. That it not appearing when the work upon the mine was commenced in 1870, it will not be presumed that it was commenced before the mortgage of the defendant was executed and recorded in September of that year, so as to give to the lien for the work priority over the mortgage. [No. 217.]

Submitted Apr. 10, 1877. Decided May 7, 1877.

Appeal from the Supreme Court of the Territory of Montana.

The appellees filed their complaint in the District Court of the Third Judicial District of Montana Territory, for the enforcement of certain alleged liens. A decree having been entered in their favor, and affirmed upon appeal by the Supreme Court of the Territory, Davis, one of the defendants, appealed to this court.

Messrs. R. T. Merrick, Robt. Leech and M. F. Morris, for appellants:

The work on the mill was substantially completed in the fall of 1869, or summer of 1870. Nothing was done after that except trivial repairs, the character and extent of which are not proved. Trivial repairs are not the subject of lien.

personal property of the defendant; and if none | during the summer of 1870. After that, nothis found, then a special fieri facias issues ing was done on the mill, except to make occaagainst the property bound by the lien. sional repairs as they were needed.

These provisions would seem to indicate that the proceeding was intended to have the character of an action at law, rather than a suit in equity.

If the case can properly be brought here by appeal, the judgment or decree in question is such a joint judgment as cannot be appealed from by Davis alone, without summons and severance, or some proceeding of an equivalent character, under the doctrine of Masterson v. Herndon, 10 Wall., 416, 19 L. ed., 953, and Simpson v. Greeley, 20 Wall., 157, 22 L. ed., 339.

In Germain v. Mason (supra), this court said that the judgment of which the defendant complained was "such a separate judgment against him as authorized him to ask a review of it here."

Mr. Justice Field delivered the opinion of the court:

It does not appear when the work was commenced on the mine. The plaintiff states that, in 1870, he put up steam hoisting works, laid tracks, and made cars, and did everything necessary to keep the mine in repair; but as to the commencement of the work in that year he is silent. The notices claiming a lien, and the affidavits attached, are not evidence on this point against the defendants.

The statute was designed to give security to those who, by their labor, skill and materials, add value to property, by a pledge of the interest of their employer for their payment; and for that purpose it subordinates all other interests acquired subsequent to the commencement of their work, although no notice that a lien may even be claimed is required, except within sixty days after the work is completed. Mortgagees and others acquiring interests in property against which such a lien is sought to be enforced have a right, therefore, to call for strict proof of all that is essential to the creation of the lien; and that includes proof of the commencement of the work, of its character, and of its completion. The commencement of the work must be shown, for from that date the lien attaches, if at all. The character of the work must be shown, for it is not for all kinds of work that a lien is allowed. The completion of the work must be shown, for notice of claiming a lien must be filed in the recorder's office within sixty days from that time. This proof must be furnished by the party who asserts the existence of the lien.

This is a suit to recover a judgment against the defendant, Charles Hendrie, for labor performed by the plaintiff upon a quartz mine and a quartz mill in Montana Territory, of which that defendant is alleged to be part owner, and to enforce a mechanic's and laborer's lien upon his interest in the premises for its payment. It is essentially a suit in equity, requiring specific directions for the sale of the property, such as are usually given upon the foreclosure of mortgages and sale of mortgaged premises. The fact that, according to the modes of procedure adopted in the Territory, a personal judgment for the amount found due is usually rendered in such cases, with directions that if the same be not satisfied out of other property of the debtor, the property upon which the lien is adjudged to exist shall be sold, and the proceeds be applied to its payment, does not change the character of the suit from one of equitable cognizance and convert it into an action at law. It is not an uncommon practice in many of the States for the courts to direct, in suits for the foreclosure of mortgages, a formal rendition of judgment for the amount due upon the obligations secured, instead of directing a reference to a master to ascertain and report the amount. Rollins v. Forbes, 10 Cal., 299. The complaint is not open to objection for misjoinder of causes of action, because the personal judgment and the enforcement of the lien are both prayed for at the same time. The rendition of the judg-erty. It is the work of mechanics and laborers, ment is only a mode of judicially declaring the amount due, and in no respect affects the equitable jurisdiction of the court. The case is, therefore, properly brought here by appeal.

It appears from the record, that, on the first of August, 1869, the plaintiff entered into a contract with the defendant Hendrie, to work for him in erecting and repairing a quartz mill and in opening and developing a quartz mine, in Montana Territory, for the sum of $2,500 a year. The mill was distant about a quarter of a mile from the mine, and it was part of the contract that one half of the time of the plaintiff should be devoted to each.

547] *The erection of the mill was commenced
in August, 1869, and occupied about forty days.
It was substantially completed in the fall of
that year.
Some iron guides only were put in

From this statement the question as to the priority of the lien claimed by the plaintiff over the mortgages of the defendant, Davis, may be readily answered. The work being done on different parcels of property, the lien claimed on one is to be considered separately from that claimed on the other. The parties-the plaintiff and Hendrie-had an accounting on the 25th of June, 1871, when over $3,700 were found due to the plaintiff. It was then agreed between them that this *amount should be a lien [548 upon the mill and mine in equal proportions. Notices claiming a lien upon each for the amount thus apportioned were accordingly filed in the recorder's office on the following day. A lien did not, however, arise from this contract of apportionment, or from the special contract under which the work was done; it arose from the work which was performed upon the prop

or the material furnished by them or others, by which value is added, or supposed to be added, to property, which creates the lien under the statute, upon notice claiming it being seasonably filed in the proper recorder's office.

So far as the mill was concerned, the notice was filed too late. That building, as already stated, was completed in 1869, or at least in the summer of 1870, when the iron guides were put in.

Occasional repairs, if subsequently made (of which, however, the record furnishes no evidence), could not be added to the work performed in the erection of the building months before, so as to render the whole work one continued performance, for which a single lien could be claimed within sixty days after the last repairs.

So far as the mine is concerned, there is no

tion of defendant, the case was removed to the court below. Judgment was given for plaintiff, and the defendant sued out this writ of error. The case is further stated by the court. Messrs. Clarence A. Seward and Charles M. Da Costa, for plaintiff in error:

for his demand, is bound thereby and cannot recover on any common law liability, which the receipt of the shipment might otherwise have created.

evidence of the time in 1870 when the work upon it commenced. The hoisting works were put up, the track was laid, and the cars were made some time during that year; but beyond this we are not informed. All this might have been done after the last mortgage held by the defendant Davis was executed and recorded in The plaintiff having given the bill of lading in September of that year. We cannot presume, in evidence as part of his principal case, having the absence of proof to that effect, that the work proved its delivery to himself in the spring of was commenced before that time, and thus give 1865, one year after its date, and having proto the lien for the work priority over the mort-duced it to the defendant as his sole authority gage. The failure of the plaintiff to show the commencement of the work, when the proof of that fact was within his power, leads to the conclusion that the truth would not have subserved his interests. At any rate, as the case stands, there is nothing in the record which warrants a subordination of the interests of the mortgagee to the claim of the plaintiff. The finding of the District Court, that one half of the amount due to the plaintiff was a valid lien on the mine from August 1, 1869, and the other half a lien on the mill from that date, does not help the case; for 549] that finding is only a conclusion of law. No facts are stated upon which the conclusion can be sustained.

R. R. Co. v. Hale, 6 Mich., 243; R. R. Co. v. Worland, 50 Ind., 339; Latham v. Rutley, 2 B. & C., 20, and 3 D. & R., 211; Austin v. Manchester S. & L. R. Co., 15 Jur., 670; Davidson v. Graham, 2 Ohio St., 131; Ferguson v. Cappeau, 6 Harr & J., 394; Stump v. Hutchinson, 11 Pa., 533.

The bill of lading concluded the contract and alone created, as well as defined, the liability and undertaking of the Express Company. Any antecedent agreement, contract or arrangement was merged therein, and extinguished thereby, and therefore evidence thereof was not only irrelevant, but incompetent and illegal.

Long v. R. R. Co., 50 N. Y., 76; White v. Vankirk, 25 Barb., 16; Niles v. Culver, 8 Barb., 205; Wolfe v. Myers, 3 Sandf., 7; Angle v. R. R. Co., 9 Ia., 487.

Whilst the statute giving liens to mechanics and laborers for their work and labor is to be liberally construed, so as to afford the security intended, it cannot be too strongly impressed upon them, that they must not only bring themselves by their notices, as was done in this case, clearly within the provisions of the statute, but they must be prepared, if the priority of their lien be disputed, to show a compliance with it will carry the packages or goods intrusted to The contract of an Express Company is, that those provisions, and to fix with certainty the it, and deliver them to the consignee at the commencement and completion of their work; in which particulars the proof here is wanting. The decree of the District Court of the Terri-loss tory must, therefore, be modified so as to give the mortgages held by the defendant, Davis, a priority over the lien of the plaintiff in the distribution of the proceeds arising upon the sale of the interest of the defendant, Henrie; and the cause will be remanded to the Supreme Court of the Territory, with directions to modify the decree in that respect.

THE SOUTHERN EXPRESS COMPANY,
Plff. in Err.,

V.

JOHN F. DICKSON.

(See S C., Reporter's ed., 549-553.)

Carrier, delivery by.

Where it is known to the carrier that the goods are the property of the shipper, and have been shipped by him for delivery to the consignees as his agents at a distant place, the carrier cannot deliver the goods to such consignees or to their order, at another place, or without starting them on their journey.

proper time, and at the proper place, without or failure, except by act of God or of the public enemy.

Marshall v. Exp. Co., 7 Wis., 2.

The consignee is presumptively the owner of the property shipped. Price v. Powell, 3 N. Y.,

322.

Prima facie, the consignee is the owner. Thompson v. Fargo, 49 N. Y., 188.

The prima facie effect of a bill of lading, as regards the consignee, is to vest the ownership of the goods consigned by it in him. The Sally Magee, 3 Wall., 451, 18 L. ed., 197.

A consignee of goods has a right to libel a vessel in his own name for their non-delivery, unless there is something to show that he had no interest in them. The presumption is that he had an interest. Lawrence v. Minturn, 17 How., 100, 15 L. ed., 58.

The effect of a consignment of goods generally is, to vest the property in the consignee. Grove v. Brien, 8 How., 429.

There is no difference in point of law between common carriers on land and common carriers on water. King v. Shepherd, 3 Story, 349.

The designation in the bill of lading constituted Trent & Rea the actual consignees, and confirmed the presumption and made the Express Company their agent, and constituted it the Argued Apr. 25, 1877. Decided May 7, 1877. agent of Dickson, if he was the owner, to re

[No. 247.]

In Error to the Circuit Court of the United States for the Southern District of Alabama. Suit was brought in the Circuit Court of Chambers County, Alabama, by the defendant in error, to recover for certain goods. On peti

ceive and sell the goods and account for their proceeds. Bank of Rochester v. Jones, 4 N. Y., 500.

In Sheets v. Wilgus, 56 Barb., 662, the court held that the person named in a shipping bill as the consignee is the regular and only consignee

He may do the same thing by demanding delivery, because in such case the carrier acts as bailee for the person indicated in the bill of lad-given by the Company in the usual form. The ing as the consignee, and must recognize his right.