and notwithstanding the owner has paid the contractor in full. To perfect the lien the act requires the subcontractor to present his claim to the owner with the contractor's certificate that it is correct within the 10 days named. If the contractor refuses to certify the account, the act points out the course to be pursued, but that is not material to the determination of this cause. The owner is required to pay the subcontractors who present their certified claims within the prescribed period out of this reserved fund. by Basham. The exact time of the first | terms of the act, although the notice required presentation is not shown, and the testimony by section 4403, supra, has not been given, is conflicting as to whether the account was certified by Moyer when first presented. The court instructed the jury that the presentation was in time, if made within 10 days after Basham had completed the work; refused to permit Basham to show that the market value of the materials was less than the amount certified to by Moyer; and, after a verdict for the plaintiff, condemned the property to be sold to satisfy the lien. Basham appeals. The appeal involves the construction of the act of March 17, 1885, under which the lien is asserted. The act is unnecessarily prolix, and some of its provisions fall under the imputation contained in the observation of BLACKBURN, J., in Reg. v. Scott. 4 Best & S. 374, in respect to an act passed in 1746, to the effect that "the statute, though not drawn in modern times, is somewhat obscure." It is supplemental to the mechanic's lien law as found in chapter 96, subd. 11, Mansf. Dig., and, when read in connection with the provisions found there, its true intent and meaning are more apparent. It was intended, as its terms and title show, for the better protection of "subcontractors, "—a term which includes, according to the statutory definition, all persons who are entitled to the lien, except those who have contracted with the owner or proprietor of the land to be charged. Mansf. Dig. § 4422. The last section of the act states that it was not intended to repeal any part of the prior law. An absolute right to a lien was already provided for the subcontractor by virtue of sections 4403, 4404, Mansf. Dig., in every case where he had given notice to the owner or proprietor of his intention to look to the premises for security before performing labor or furnishing materials for the contractor, and his lien was thereafter regulated by the value of the services rendered or of the materials furnished, without regard to the contract between the owner and the first contractor or the amount due thereunder. If notice was not given the owner in advance of furnishing materials or performing labor, the subcontractor's security was limited to the amount due from the owner to the first contractor. If nothing was due, no lien could be acquired. Mansf. Dig. § 4421. Where, therefore, the statutory notice had not been given, the owner could defeat the subcontractor's right to a lien by paying the contractor what the contract called for. It was to supply, in a measure, that supposed defect in the law that the act of March 17, 1885, was enacted. To accomplish that end, the act makes it the owner's duty to withhold from his contractor one-third of the cost of the improvement, or of the amount agreed to be paid therefor, for a period of 10 days after the work under the contract is completed; and to the extent of the sum thus required to be reserved subcontractors may establish liens upon the property that is improved by them, upon complying with the The first question that arises here is, shall he pay the material-man the amount agreed upon between the latter and the contractor, or only the fair market value of the materials? So long as the reserve fund is actually held by the land-owner for the benefit of the subcontractors, the law is plain. It is then a debt due from him to the contractor, and the act provides the means of appropriating it to the payment of what the contractor owes to the laborers and material-men who have contributed to the performance of the contract under which the fund was earned, and in doing so a beneficent end is worked out without injustice to any one. But when the land-owner has failed, as Basham did, to reserve the fund, is his property bound to the subcontractor only for the value of the materials, or for the price agreed to by the contractor? The former act in favor of material-men limits their right of recovery against the property to the value of the materials used, whether the owner was indebted to the contractor or not; and the question is, does the act of 1885 change the rule? As we have seen, the act declares it was not the intention to repeal any provision of the former law. Was it, then, the intention to fix different rules for the measure of recovery, to be determined only by the act under which the subcontractor asserts his claim? Or, to put the question differently, was it intended to allow a recovery of only the value of the materials if proceedings were had under section 4403, Mansf. Dig., but to allow the price agreed to by the contractor if the claim was under the act of 1885? The double rule would be productive of uncertainty and confusion in many cases, and where both laws had been complied with, and the claim of the subcontractor was greater than the fund required to be reserved, we should have to apply each of the standards to the several parts of the same claim in one suit. We should not conclude that such was the legislative intent, unless it plainly appears. If the design to punish the owner for a failure to reserve the required fund, by holding him and his property liable for the contractor's agreed price, clearly appeared, effect would be given to it. Bullock v. Horn, 44 Ohio St. 420, 7 N. E. Rep. 737. But the rule for the construction of statutes which create charges against individuals or against their property without their assent is this: The burden shall not be extended beyond the plain mean- | under it must be regarded as completed ing of the terms creating it, (Flournoy v. within the meaning of the statute, else the Shelton, 43 Ark. 168; Peay v. Field, 30 Ark. subcontractor could not enforce his lien at 600; Dano v. Railway Co., 27 Ark. 564;) but, all when the owner has seen fit to pay off when the legislative intent to create the the contractor. As was said in Catlin v. charge is clearly ascertained, the remedy Douglass, 33 Fed. Rep. 569: "It would be inshall not be frittered away by a too close ad- equitable and unreasonable, and contrary to herence to those requirements of the statute the spirit of the law, to hold that parties are which are designed to regulate the procedure absolutely barred of all rights to the lien for enforcing the charge, (Buckley v. Tay- law, where the work is permanently stopped lor, ante, 281; Anderson v. Seamans, 49 Ark. or abandoned without fault of such parties. 475, 5 S. W. Rep. 799.) Now, the only pro- Such a construction would place materialvision of the statute prescribing the rights men and laborers at the mercy of the dishonof the subcontractors, in case the land-owner esty, fickleness, or misfortunes of the owner fails to reserve the fund for his benefit, is or contractor." But, if the work is comfound in section 4 of the act. It gives him pleted for the purpose of enabling the suba lien for the "work or labor done, or mate- contractor to enforce his lien, it is completed rials, machinery, or fixtures furnished." so as to allow the owner to settle with the Where the statute gives a lien for "mate- contractor after 10 days have elapsed, and so rials," without saying more, and the person bar the right to a lien. A change in the conwho has contracted for them is not the owner tract, or an amendment of it, as the statute or the owner's agent, the extent of the lien has it, or a suspension of the work for a is commonly held to be the market value of short period, will not affect the lien; but the materials when furnished. 2 Jones, when the contractor abandons his contract Liens, § 1306; Deardorff v. Everhartt, 74 Mo. after having done work under it, and the -37; Laird v. Moonan, 32 Minn. 358, 20 N. W. owner makes a new and independent conRep. 354; Lee v. Burke, 66 Pa. St. 336; Cat-tract with a stranger to the first one, or tanach v. Ingersoll, 1 Phila. 285. The other completes the work himself, the materialprovisions of the section relate only to the effect of the lien, and the mode of enforcing it, and have no bearing on the extent or amount of it. It is not plain, therefore, that it was intended to preclude the owner by the agreement as to value between the contractor and material-man, and we should not make a judicial extension of the terms of the act. The court erred in holding that the value of the materials was not open to inquiry. men and laborers under the first contractor cannot postpone the presentation of their claims to the completion of the improvement under the new contract, but must act within the prescribed period after the abandonment of the contract under which they have acquired their rights. 2 Jones, Liens, SS 1438, 1440. See Bertrand v. Byrd, 5 Ark. 651. The court erred in instructing the jury otherwise. For the errors indicated, the judgment is reversed, and the cause will be remanded for a new trial. LEVY V. FERGUSON LUMBER CO. JUSTICE OF THE PEACE-JURISDICTION. enforce a laborer's lien before a justice of the Act Ark. July 23, 1868, provides that, in order to peace, if the defendant is a non-resident, the justice must notify him to appear and show cause why judgment should not be rendered against him, either by insertions in a newspaper, or by posting the notice in some public place in the township where the property is. Held, where the evidence showed that the defendant was a non-resident of against him under the said statute, and it did not the state during the pendency of an action brought appear from the docket that the defendant had notice, actual or constructive, of such suit, that the the docket after judgment, so as to make it appear justice did not acquire jurisdiction by amending that the defendant had notice of the pendency of the suit, no notice having been given to the latter of the proposed amendment. The only remaining question presented by counsel which it is essential to determine is as to the correctness of the court's charge to the effect that a presentation of the certified account within 10 days after Basham had completed the work was in time. The time (Supreme Court of Arkansas. March 30, 1889.) of presentation is material. The language of the statute is that it must be within 10 days "after the work under such job or contract [that is, the job or contract previously mentioned as having been let by the owner to a contractor] as originally made or amended shall have been fully completed." Section 1, Act March 17, 1885. Now, as there is no contract and no privity of contract between the owner and the subcontractor, the completion of the work under the contract mentioned in the statute must mean the contract of the owner with the person through whom the subcontractor's lien must be worked out, i. e., the contractor; and that completion is the period from which the subcontractor must begin to compute the time allowed for the presentation of his account. The completion of the work under the contract need not be the completion of the contemplated improvement. It may be that only a part of the work has been let, or the completion of the structure may not be in present contemplation. And so, when the contractor abandons his contract, the work Appeal from circuit court, Pulaski county; MARTIN, Judge. Cohn & Cohn, for appellant. Blackwood & Williams, for appellee. BATTLE, J. The Ferguson Lumber Company sued Levy for damages sustained by it through his failure to perform a contract to deliver 500,000 feet of lumber. Levy an swered, denying the damage, and in a coun- | property is, and the other at the county ter-claim or set-off sought to recover the clerk's office-to appear and show cause why value of 250,000 feet of lumber received by judgment shall not be rendered and the prop-the company. Plaintiff admitted that it re- erty sold." The notice must be given at least ceived 180,000 feet of the lumber which had 10 days before the day of trial, and be accombelonged to Levy, but proved it purchased panied by a copy of the sworn statement of the same at a sale made by the sheriff under the plaintiff. At the time it is given, the and pursuant to orders or judgments of a sheriff or constable serving it is required by justice of the peace. The defendant insisted the act to take charge of the property dethat these orders or judgments were void, scribed in the sworn statement, and hold it because the justice who made or rendered subject to the decision of the justice, as in them did not have jurisdiction. The court cases of attachment. The other act requires refused to allow him anything on account of that such actions shall be commenced and his set-off, but rendered judgment for dam- prosecuted according to the laws regulating ages against him; and, after filing a motion attachments before justices. Mansf. Dig. for a new trial, which was overruled, and a §§ 4425-4428, 4430, 4450. Whether the latter bill of exceptions, he appealed. act repeals the former or not is not neces-The judgments under which the sale of the sary for us to determine. The suits before 180,000 feet of lumber was made were ren- the justice in this case were commenced dered in divers suits instituted by laborers under the act of 1868. To acquire jurisdicfor the purpose of foreclosing a lien for labor tion under that act the sworn statement must performed by them, at the instance of Levy, be filed, and notice, unless waived, must be in the manufacture of the lumber sold by the be given. It has often been held by this sheriff. They were rendered about the 29th court that "a justice's court is a court of the of January, 1887. Up to this time the docket lowest grade known to our constitution and of the justice fails to show that Levy had act- laws;" that "it possessed only a special, 1mual or constructive notice of the pendency of ited, and inferior jurisdiction;" and that, the suits against him. Long after the judg- "therefore, the proceedings therein, accordments were rendered and the sale was made, ing to the principle almost universally adand some time after the commencement of mitted, must show or set forth such facts asthis action, an amendinent was entered upon constitute a case within its jurisdiction. the docket of the justice of the peace, in | Otherwise the law regards the whole prowhich it is stated that Levy was notified of the pendency of the suits against him by the posting of three notices directing him to appear on the day of trial, and show cause why judgments should not be rendered against him, and the property levied on sold to satisfy the claims of plaintiffs 15 days before the trial of the causes, one at the county clerk's office in the county, and the other two at two of the most public places in the township where the property was found, and by accompanying the same with a copy of the sworn statement of the plaintiff in each case. The docket fails to disclose that he was a non-resident, or that he had notice that a motion or application would be made to amend the docket. But the evidence shows that he was a non-resident of the state during the pendency of the suits before the justice. The manner of enforcing laborer's liens before justices of the peace is prescribed by two separate acts,-by the act of July 23, 1868, and by the act of March 21, 1883. To commence an action under the act of 1868, the laborer must make a sworn statement of the amount due him after all just credits are given, of the kind of service, and for whom rendered, of the materials furnished, and of the list of the land, property, crops, or other productions of his labor charged, and file the same with the justice, and the justice must then cause notice to be given to the defendant in the usual way, or, if the defendant is a non-resident, notify him "by at least two insertions in a newspaper, as prescribed by law, or by posting three notices-two in the most public places in the township where the ceeding as coram non judice, and absolutely void." Reeves v. Clarke, 5 Ark. 27; Ex parte Anthony, Id. 358; Pendleton v. Fowler, 6 Ark. 41; Levy v. Shurman, Id. 182; Latham v. Jones, Id. 371; Heflin v. Owens, 10 Ark. 265; Butler v. Wilson, Id. 315; Everett v. Clements, 9 Ark. 478; Boothe v. Estes, 16 Ark. 109; McClure v. Hill, 36 Ark. 271. The jurisdiction of inferior courts cannot be intended, but must be shown. But it has been held that "the rule that jurisdiction must be apparent on the face of the proceedings was limited to those jurisdictional facts which the law directs the court to set forth on its record," and that "any other fact essential to jurisdiction may be established by evidence aliunde." Visart v. Bush, 46 Ark. 153; Jolley v. Foltz, 34 Cal. 321; Van Deusen v. Sweet, 51 N. Y. 381; Freem. Judg. (3d Ed.) § 518. But it is not necessary for us to decide whether this can be done or not. If the amendment of the docket entries in the suits before the justice were void, no other question remains to be decided in this action. It has been held by this court that a justiceof the peace has the authority to so amend his docket as to make it speak the truth. Adams v. Thompson, 12 Ark. 670; Gates v. Bennett, 33 Ark. 489. The ends of justice require this. But it should be done on proper application, and notice to parties legally interested. Martin v. Bank, 20 Ark. 636; Alexander v. Stewart, 23 Ark. 18; King v. Clay, 34 Ark. 300. Where the amendment is made by a justice of the peace, it must be affirmatively shown that the notice was given before it can appear that the amendment is had lived separate and apart from him without his fault ever since. The judgment dismissing the appellant's petition must be reversed, and the cause remanded, with directions to grant the appellant a divorce in accordance with the prayer of the petition. valid. Unless it can be so shown, the amend- | pears that the appellee abandoned the appelment must be regarded as void. It does not lant, and that such abandonment was withappear that Levy had notice that an applica-out any fault of his whatever, and that she tion would be made to amend the docket entries in the suits before the justice of the peace, and, aside from the amendment, it does not appear that he had notice of the pendency of the suits against him. Consequently the amendment and judgments of the justice, in the absence of a better showing, must be treated as void. Being void, they are in legal effect nullities. "By them no rights are divested;" "from them no risk can be obtained;" and the sale under them is void, and Levy is entitled to recover the value of the lumber sold. McClure v. Hill, 36 Ark. 271; Campbell v. McCahan, 41 Ill. 45; Huls v. Buntin, 47 Ill. 397; Hollingsworth V. Bagley, 35 Tex. 345; Roberts v. Stowers, 7 Bush, 295; Morton v. Root, 2 Dill. 312; Freem. Judgm. (3d Ed.) § 117. Reversed and remanded for a new trial. NICHOLS v. NICHOLS. (Court of Appeals of Kentucky. March 14, 1889.) DIVORCE EVIDENCE. Where it is shown in a suit for divorce that defendant had abandoned plaintiff without cause, a written agreement between the parties, reciting a separation, and making certain arrangements in reference to their children, property rights, and alimony, does not justify an inference that there was a separation by mutual consent. Appeal from circuit court, Mercer county; W. F. RUSSELL, Judge. Suit for divorce by D. E. Nichols against his wife, Maranda Nichols. The divorce was refused plaintiff, and he appeals. Thos. H. Hardin, for appellant. GREEN et al. v. ASHER. (Court of Appeals of Kentucky. March 23, 1889.) PRIVATE NUISANCE-ABATEMENT. Where one, in violation of law, takes an old boat left by high water on a highway, and fits it up as a grog-shop, where disorderly people assemble, one living near by, and owning the fee over which the highway runs, can sue in equity to abate the nuisance. Appeal from circuit court, Bell county; WILLIAM H. BRAFFORD, Special Judge. Bill by A. J. Asher against E. F. Green et al., to abate a nuisance. Defendants appeal. Leonard Farmer, for appellants. Hargis & Eastin, for appellee. PRYOR, J. It is well settled that a public nuisance may become a private nuisance, when special injury arises, and particularly when it is that character of nuisance that is continual, and affects the party complaining to a much greater extent than the public generally. It is alleged, and not denied, but confessed by the demurrer, that the appellant, by himself and others, and in violation of law, took an old boat that had been left by the high water in a highway or public road in Bell county, fitted it up for a grog-shop, BENNETT, J. The appellant alleged in his where a number of disorderly persons assempetition that he and the appellee were hus- bled day after day, and engaged in fighting, band and wife; that they were married in cursing, and other disorder, to the annoyMercer county, Ky., in 1871; that they both ance and disturbance of appellee's family, had lived in said county ever since their mar- who lived near by, and who owned the fee riage; that the appellee had abandoned him over which this high way ran. There was a dewithout his fault, and lived separately and murrer to the petition, which was overruled, apart from him for one year and more; that and no answer filed. It is now complained that he and appellee had resided in Mercer county the court erred in refusing permission to file for more than one year before the bringing an answer. No answer was offered to be of his action; that the cause of divorce had filed, and no defense made except by demuroccurred within five years before he brought rer. The chancellor properly abated the nuihis action. All of these allegations were sance. Ashbrook v. Com., 1 Bush, 140. fully proven, and there was no controverting Judgment affirmed. evidence whatever, yet the chancellor dismissed the appellant's petition. We are at a loss to know upon what ground the petition was dismissed, unless it was upon the ground that a writing was filed, executed in March, 1877, several months after the abandonment, in which it was stated that, the appellant and appellee having separated, certain arrangements in reference to their children and property rights and alimony were entered into, from which the chancellor might have drawn the inference that the separation was by mutual consent. In view of the facts stated in the record, such inference would be wholly unjustified; for it conclusively ap HASSON v. COMMONWEALTH. (Court of Appeals of Kentucky. March 16, 1889.) CRIMINAL LAW-CHANGE OF VENUE - HOMICIDE. 1. Where the testimony is conflicting as to whether or not a person accused of crime can have a fair and impartial trial in the court where arraigned, the supreme court will not disturb the conclusion of the trial court as to the right to a change of venue, under Gen. St. Ky. p. 185, art. 4, § 1, providing for a change if it "appears" that defendant cannot have a fair trial. 2. The return of a verdict, properly signed, into the judge, and by him to the clerk, who then reads court by the jury, and handed by the foreman to it aloud, is a sufficient compliance with Crim. Code * into court, * their foreman 3. Evidence of bad moral character of the defendant in a criminal case is competent for the purpose of impeaching his testimony in his own behalf. 4. An instruction that if the accused armed himself and sought deceased for the purpose of killing him, and, on finding him, engaged in a rencounter in pursuance of such purpose, he could not rely on the plea of self-defense, though deceased may have threatened him, and he may have supposed at the time that he was in imminent danger, is correct. Appeal from circuit court, Hancock county; LUCIUS P. LITTLE, Judge. Ky. 255, providing that "when a jury have to the evidence. In this instance five witagreed upon their verdict, they must be conducted nesses were introduced, who, in substance, stated that in their opinion the appellant could not obtain a fair trial in the county where the indictment was pending. Upon the other hand, six witnesses, one of whom was the sheriff of the county, and ail of whom appear to have had reasonable opportunity to know the sentiment of the county as to the case, testified that in their opinion he could; and upon this state of case the conclusion of the court should not, of course, be reversed. The verdict of the jury, properly signed, was returned by them into court, and handed by the foreman to the judge, and by him to the clerk, who then read it aloud. It was not announced by the foreman, unless the reading of it by the clerk under the circumstances is to be regarded and treated as a declaration of it by the foreman. It is urged that for this reason the verdict should have been set aside by the lower court. It has, however, been common from the earliest history of the courts of this state to thus receive verdicts; in fact, so usual that it may be regarded as the general practice. It is true, section 255 of the Criminal Code provides: "When a jury have agreed upon their verdict, they must be conducted into the court by the officer having them in charge, their names called by the clerk, and, if they all appear, their foreman must declare their verdict;" but, in our opinion, when a verdict is announced as was done in this case, it should be regarded as the declaration of it by the foreman. John H. Hasson was indicted for murder, and convicted of manslaughter, and appeals. Miller & Morrison and W. S. Roberts, for appellant. P. W. Hardin, for the Commonwealth. HOLT, J. In December, 1887, the appellant, John H. Hasson, shot and killed Jack O'Donnell. He was indicted at the May term, 1888, of the trial court, and the case, upon his application, then continued. At the November term following he applied for a change of venue, and, after hearing, it was refused, and a trial had, resulting in his sentence to the penitentiary for 14 years. Prior to the amendment of April 1, 1880, to the General Statutes, the accused was entitled as a matter of right to a change of venue, upon the filing of a petition verified by him, and supported by the affidavits of two or more credible persons, not of kin or counsel for him, and who were acquainted with the The evidence in the case is somewhat constate of public opinion in the county objected flicting as to whether the accused or the deto, stating that he could not obtain a fair ceased fired the first shot. Indeed, a considtrial therein. But at the time named the erable portion of the evidence tends to show law was so changed as to permit the court to that the deceased did not shoot at all. Howhear all testimony the parties might offer. ever this may be, it is certain the accused was The question is now raised whether it should the aggressor. He approached the deceased be granted, if upon all the evidence the trial in the night-time, with his pistol in hand, judge has a doubt whether the accused can and, as some of the testimony shows, with it obtain such a trial, or whether it should be presented at the deceased, when the latter shown by a preponderance of the testimony was standing quietly upon the street, and that he cannot. It is the motion of the ac- had made no aggressive movement or offer to cused. In the language of the law, it is to draw a weapon. The shooting immediately be granted "if it appears that the defendant took place, and in a moment O'Donnell was cannot have a fair trial in the county where a dead man, and the accused running away, the proceeding is pending," (Gen. St. Ky. saying he "had gotten his man," or words to p. 185, § 1,) and the court shall "from the ev- that effect. The consideration of the remainidence determine whether or not the applicant ing questions in the case does not demand a is entitled to change of venue." The burden further detail of the circumstances of the is upon him to make it "appear" to the court homicide. A witness was improperly allowed that he cannot obtain such a trial. The court to testify that the deceased, when notitied must determine upon all the evidence whether about an hour before the killing that the acit can be had, and if in his opinion, based cused was threatening him, said he had no upon it, it is not probable that a fair and im- pistol. This evidence, however, was not prejpartial trial can be had, he should change the udicial to the accused, because it was abundvenue. While this court has the right to re-antly shown that the deceased had one when view the judgment of the trial judge upon this question, yet, where the testimony is conflicting, it would ordinarily hesitate to disturb his conclusion. He usually knows the witnesses. He observes their manner of testifying, and has for many reasons a better opportunity to judge of the weight to be given the killing occurred; and in fact this same witness testifies that at the very time the deceased made the statement he gave him a pistol, although the deceased was protesting that he would not need it. An effort was made to prove a threat to kill the accused by the deceased; but the witness who was offered |