Civil procedure.

Provision for continuing such laws as fail to be pro

acts.

ing Oaths, and Prescribing the Forms of Oaths of Office," approved February 12, 1858; "An Act to provide for Recording Contracts relating Lands, and for other purposes," approved February 12, 1858; "An Act establishing the office of County Treasurer, and prescribing the duties thereof," approved February 12, 1858; "An Act to enable Trustees to receive Lands and Donations, and convey the same for the use of Schools, Churches, Religious Societies, Masonic and Odd Fellows Lodges, Sons and Daughters of Temperance, and for the construction of Cemeteries, Houses of Worship and other Buildings therein mentioned," approved February 6, 1858. All other acts inconsistent with, or supplied by acts passed at the present session of the Legislature, are hereby repealed.

SEC. 4. If the "Act to Establish a code of Civil Procedure," introduced at the present session, revised and amended by the codifying commissioners, should fail to become a law, the "Act to Establish a Code of Civil Procedure," approved February 12, 1858, shall remain in full force and effect.

SEC. 5. If any other act submitted by the codifying commisvided for by new sioners, bearing substantially the same title as any one hereinbefore enumerated, as being repealed by this act, should fail to become a law, such act, so enumerated as being repealed, shall remain in full force unless otherwise supplied or expressly repealed.

Not to interfere with vested rights

SEO. 6. This act shall not be construed to affect or interfere with vested rights, but such rights shall be and remain as secure as if this act had never been passed.

SEC. 7. This act, except section six, shall take effect and be in force from and after the first day of June next; section six shall take effect immediately.

A. LARZALERE,

Speaker of the House of Representatives.

C. W. BABCOCK,

President of the Council.

Approved February 11, 1859.

S. MEDARY,

Governor.

AN ACT for securing Liens to Mechanics and others.

Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas:

SECTION 1. That artisans, builders, mechanics, and those who Lien of artizans,

&c.. for materials

furnish materials for buildings, under contract with the proprietor and labor. thereof, and all sub-contractors, shall have a lien for such materials furnished, and for work and labor done on houses and other Go144 edifices by them hereafter erected, in whole or in part, each Repered

artisan, builder, mechanic, laborer and sub-contractor, for his

own work and materials furnished.

an account on oath to be filed with the clerk of the district court.

لة

SEC. 2. It shall be the duty of every person, except a sub- Within one year contractor, who wishes to avail himself of the benefits of this act, to file with the clerk of the district court of the county in which the building to be charged with the lien is situated, and within one year after the materials shall have been furnished or the work and labor performed, a just and true account of the demand. due him after all credits are deducted; and he shall verify the said account by his own or by the oath of some other person; and shall also file, at the same time, a correct description of the property to be charged with said lien.

sub-contractor to

De

SEC. 3. Every sub-contractor, wishing to avail himself of the Proceedings of benefits of this act, shall give notice, in writing, to the owner or procure a lien. proprietor or his agent, of his intention to furnish materials for or perform labor on the building, and the probable value thereof; and, if afterwards materials are furnished or labor done, the subcontractor shall settle with the contractor therefor, and, having made the settlement, in writing, the same, signed by the contractor and certified by him to be just, shall be presented to the owner or proprietor or his agent, and left with him; and, within ten days from the time the materials shall have been furnished or the labor performed, the sub-contractor shall file with the clerk of the said court in the county in which the building is situate, a copy of the settlement between him and the contractor, which shall be a lien on the building for which the materials were furnished or on which the labor was performed, and shall, at the same time, file a correct description of the property to be charged with the lien.

SEC. 4. The certificate of settlement, made as aforesaid, shall be a justification to the employer in withdrawing from the contractor the amount appearing thereby to be due to the sub-con

Effect of certifisub-contractor.

cate of settlement and liability to

Payments made by proprietor betlement,

fore filing of set

not liable to pay

till the time of

credit has expired.

Duty of clerk re-
Jative to liens

tractor, until he is satisfied that the same has been paid. The employer shall become the debtor of the sub-contractor for the amount, and may use it as a set-off or plead its payment in bar of an action therefor by the contractor.

SEC. 5. All payments made by the proprietor or owner of a building, before he is served with notice of the filing of the settlement, shall be valid, and he shall only be liable to the subcontractor for the amount due from him to the contractor at the time of the service of the notice; and no owner or proprietor of any building shall, by virtue of anything contained in this act, be bound to pay the value of any work or materials, or subject to any suit therefor, before the expiration of the time for which credit for such work and materials may have been agreed upon between the owner and contractor, if such contract for credit shall have been made before the sub-contractor shall have furnished any materials or performed any work.

SEC. 6. It shall the duty of the clerk to make an abstract of Sled in his office. all liens filed in his office under this act, in a book to be by him kept for that purpose, containing the name of the person laying

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Plaintiff to proeeed by action

against whom.

When before a justice of the peace.

ко

Transcript may

be filed in district court.

Writs of execntion, how issued,

or imposing the lien, and of the person or persons against whom

or upon whose contract it is imposed, the amount of the said lien,

and a description of the property to be charged, for which the clerk shall be allowed to receive fifty cents.

SEC. 7. In all cases under this act, it shall be lawful for the plaintiff to proceed by action in the ordinary form against the original debtor, and against all and every person or persons, owning or possessing the property, against whom he wishes to proceed. The petition, in such cases, shall set forth the lien upon which the action is founded, and such other facts, constituting the cause of action, [as] in ordinary cases.

SEC. 8. Any person, whose lien or claim does not exceed one hundred dollars, may commence his action in the ordinary form, before a justice of the peace, and the bill of particulars, in such case, shall refer to the lien. After judgment is recovered, a transcript thereof may be entered in the district court, and shall be proceeded upon in the same manner as if such judgment had been recovered in the district court.

SEC. 9. Where judgment is entered against the owner, a writ or writs of execution may issue thereon as in other cases; or, a special writ of execution may issue to make the amount recovered, by sale of the building and lands or both. Writs may be issued either separately or combined in one writ, and one may be issued

after the return of the other for the whole or residue, as the case

may require.

may be sold, un

conveyance under

SEC. 10. Under such special execution, the sheriff or other Building and lot officer shall advertise, sell and convey said building and lot, in der execution. the same manner as directed by law in cases of lands levied upon o for debt; and the deed given by such sheriff or officer, shall convey Title from deed of to the purchaser [of] said building, free from any former incum- sale on execution. brance on the lands, and shall convey the estate in said lands, which said owner had at or any time after the commencement of the building, within one year before the filing such claim in the clerk's office, subject to all prior incumbrances, and free from all incumbrances or estates created by deed or mortgage, made by such owner or any person claiming under him, and not recorded at the commencement of said building.

Liens concurrent divided pro rata.

on same building, proceeds of sale

Да

SEC. 11. All lien claims for erecting the same building shall be concurrent liens upon the same and the land whereon the same is erected, and shall be paid pro rata out of the proceeds thereof, when sold by virtue of this act; and, for the purpose of distribution, the sheriff or other officer shall pay such proceeds to the clerk of said district court, to be by said court distributed among such claims filed, or as shall be filed according to this act, and such district court shall have full power to adopt such rules of District court to practice as may be necessary to secure the proper disposition of the proceeds of sales to all persons entitled thereto by the provisions of this act.

adopt rules.

lien.

Ас

SEC. 12. No lien shall bind any building for a longer time Limitation of than twelve months after the said building is finished, by virtue of this act, unless a suit shall have been brought on such lien in the manner provided in this act.

file a release, when.

SEC. 13. Within five days after the demand of any sub-con- Sub-contractor to tractor, who may have filed his lien by virtue of this act, shall be satisfied, either by the principal contractor or the owner of the property, such sub-contractor shall file, in the office of the clerk in which the lien is filed, a release of the same, under a penalty not to exceed one hundred dollars, in the discretion of the court, to be recovered by action in the name of the owner of the property affected by the lien.

SEC. 14. Whenever any debt, which is a lien upon any building, shall be paid to any creditor other than a sub-contractor, he shall enter satisfaction on the margin of the record of said lien. SEC. 15. If any creditor refuses or neglects to enter such satisfaction or release to the owner, in writing, within ten days after the payment and request, he shall forfeit the amount of the lien

Satisfaction of

lien entered, when and how.

Creditor failing

to enter satisfao

tion, forfeituro.

Land not exceeding five hundred square feet clear

of building, subject to lien.

c

If title incumber

ed, person who

procures the work

done considered

the owner to the

and interest.

which he claimed, to be recovered, by action, in the name and for the use of the owner of the building.

SEC. 16. The land upon which any building shall be erected, together with a convenient space around the same, not exceeding five hundred square feet clear of the building, shall also be subject to the liens which may be created by virtue of this act, if the said land shall have been, at the time of erecting the said building, the property of the person who shall have caused the same to be erected.

SEO. 17. If the person, who shall have caused the building to be erected, has an estate in fee for life, or any less estate, either extent of his right in law or in equity; or, if the land on which the building is erected at the time of the contract for building, or for furnishing materials therefor, is mortgaged, or under any other lien or incumbrance, by contract or statute, the person who procures the work to be done shall, nevertheless, be considered as the owner to the extent of his right and interest in the land, and the lien before provided for by this act, shall bind his whole estate and interest therein, and the creditor may cause the right of redemption, or whatever other right or estate the owner had in the land, to be sold, and applied to the discharge of his debt, according to the provisons of this act.

Liens include the

estate of owner as

SEC. 18. The word "owner" in this chapter includes any perwell as building. son who has any estate or interest in the land, and the lien hereby given extends to the whole of his estate and interest in the land and no further; and the word "building" includes permanent machinery substantially connected with a building, and the lien applies to both building and machinery.

When sub-contractor must coinmence suit against principal.

Effects of subeontractor's suit against owner.

Sub-contractors

righte.

SEC. 19. A sub-contractor may commence an action against his principal within one year from the time payment should have been made under his contract, and, upon filing with the clerk or justice an affidavit of himself or his agent or attorney of his belief of the truth of his claim, and his belief that the said owner is indebted to the contractor, (whether it be on the given building or otherwise,) an order, in the nature of an order of attachment, may issue to the owner, returnable at the same term with the summons, and from the service thereof, all indebtedness of the owner to the contractor, and any property of the contractor in the hands of the owner, shall be stayed in the hands of the owner, and the proceedings shall have the qualities of and be conducted as an ordinary attachment.

SEO. 20. When a judgment is rendered in favor of a subcontractor against the owner as such garnishee, the record shall