of authority in the adjudicated cases. It has been well said by the supreme court of New York: "The statutes which allow a debtor, being a householder and having a family for which he provides, to retain, as against the legal remedies of his creditors, certain articles of prime necessity, to a limited amount, are based upon views of policy and humanity, which would be frustrated if such an agreement could be sustained." Knettle vs. Newcomb, 22 N. Y. 249. So by the Kentucky court: "Executory agreements are generally enforced, and as much obligatory on parties as if in fact executed; but there are exceptions to this general rule. No one in this state is entitled to the benefit of the exemption laws but a housekeeper with a family; and the legislature certainly intended by the enactment of such laws to provide more for the dependent family of the debtor than for the debtor himself. Every honest man has a desire to fulfill all his obligations, and such are always willing to comply with the demands of a creditor by giving to the latter any assurance he may exact as evidence of his intention to pay his debt. The law, in its wisdom for the poor and needy, has said that certain property shall not be liable for debt, not so much to relieve the debtor as to protect his family against such improvident acts as reduce the family to want." Moxley vs. Ragan, 10 Bush 156. Some of the courts, notably the supreme court of Pennsylvania, sustain such contracts. Bowman vs. Smiley, 31 Penn. St. 223.

But on sound principle such contracts cannot be sustained in consonance with the policy of the law. In this state the question is settled by statute, and such contracts authorized. Sections 484 and 489 Hill's Code.

The law should take notice of the readiness with which sanguine and incautious men will make improvident contracts which look to the future for their consummation, when if the results were to be presently realized, they would not enter into them at all.

If sections 484 and 489 of our code were repealed, the law of exemptions here would be symmetrical and logical.

At common law the creditor could not sell the debtor's land; and after provision for such sale was made by statute the protection and integrity of the family, ever a cherished object in Anglo-Saxon society, demanded that the homestead be saved from levy and sale.

"The law," said a learned court, in one of the early cases, "is based upon the idea that, as a matter of public policy, for the promotion of the property of the state, and to render independent and above want each citizen of the government. it is proper he should have a home-a homestead-where his family may be sheltered and live beyond the reach of financial misfortune and the demands of cred

itors who have given credit under such law." Charles vs. Lamberson, 1 Iowa 439.

In all legislation on this subject it must be borne in view by the state, that the amount and value of property exempted cannot be materially increased and the law have a retroactive operation. The highest tribunal in the land has decided that "the legal remedies for the enforcement of a contract, which belong to it at the time and place where it is made, are a part of its obligation. A state may change them provided the change involves no impairment of a substantial right." Gunn vs. Barry. 15 Wall, 610. The history of civilization illustrates very forcibly the economic value of protection of the means of production of the poor. Slave labor was but a small per cent. of the value of free labor. The mechanic with tools, and the farmer with land and implements to cultivate are worth infinitely more than those without them, and the very class that most frequently declaim against liberal exemption of property from execution-the creditor-is equally benefited by them; as debt paying is more certain and all creditors more surely paid, where the means of protection are assured to the debtor. We may all conclude that our excmption law is one of the consummate flowers of a higher Christian civilization, founded on the soundest economic and most humane principles, and tends to increase the value of life and property throughout the state.

APPENDIX "H."

Paper read by Frank H. Post, of Spokane.

Subject:

THE MATERIAL-MAN'S LIEN.

The Material-Man's Lien. The subject is one of great possibilities and impossibilities. It might be treated in a humorously sad manner by pointing out the absurdities of the conflicting decisions of the various courts. One might exhaust his hearers in drawing analogies between the statutory law in respect to such liens and the common law principles and the equitable principles deduced in respect to other classes of liens. But to my mind, such dissertation would be profitless, and not knowing the intention of the committee who prepared the program for this meeting of the State Bar Association, I have deemed it best to treat the subject on the line of the policy of the law.

Neither the mechanic nor the seller of materials had a lien at the common law on the structure upon which the work had been performed or in the construction of which the material had been used. The common law recognized no liens except those on personal property. Possession was essential at the common law to the creation of a lien. Neither did the courts allow such liens upon any principles of equity; the lien is controlled in no sense by principles of equity. Our English brothers have never in any manner recognized the justice or propriety of such liens, and no law has been enacted in Great Britain, unless at a very recent date, providing a lien for the mechanic or material man. Such liens were first recognized in the civil law which authorized a lien not only to the laborer and furnisher of materials, but also to the money lender when the money was loaned to be used in building the structure, which is a little further than the enterprising American has gone, on the probable theory, which has become an

established fact, that the money lender can take care of himself.

On September 9th, 1791, a memorial was adopted by the commissioners appointed for that purpose, at which meeting were present Thomas Jefferson and James Madison, praying the general assembly of Maryland to pass an act securing to master-builders a lien on the houses erected and the land on which they stood. An act in accordance therewith was passed on December 19th, 1791. This appears to be the first statute of this kind enacted in this country. The real object of the act was to encourage master builders to contract for erecting houses in the city of Washington. The law was not enacted because the general assembly of Maryland considered that contractors and mechanics were entitled in equity to a lien, but because by giving them such a lien contractors would construct houses for people of little means, and thus there would be much building of homes at the new seat of government. Under that act the material man acquired no new rights and no new remedies.

The next statute of the kind was enacted in Pennsylvania in 1803, and it was substantially the same as the act passed in Maryland in 1791. These statutes were limited in their application to cities or towns, and did not apply throughout the respecive states. The idea became at once very popular and now every state and territory has such a statute. The first few statutes did not apply to the material-man, but soon no distinction was made between the laborer and the material-man. In some states the law applies only to cities, but generally to the rural districts as well. The statutes of no two states are alike. But the tendency has been towards the extension of the remedy, towards granting it to all classes and without restrictions. In many states, notably New York and California, the mechanic and material-man whom the work is done for, or material furnished to a contractor can have a lien only to the extent of the unpaid balance due the contractor by the owner. In others, the owner has no protection against

double payment except that of eternal vigilance. In some states, although the owner contracts with the builder to give him other than money, for instance, land, in payment for his work, these liens are sustained by the courts and the contract practically abrogated, the alleged principle being that the lien is a remedy, not a right.

In some states the material-man is entitled to a lien for materials sold the contractor to be used in the structure although it was not, in fact, so used. The tendency is to give perfect protection to every one interested; no matter how remotely, in the construction of the building or other structures, except the owner. The modern idea seems to be that the owner shall have no protection but his wits. Being an owner of property he is, of course, a scurvy fellow and good only for plucking. This principle, if it be a principle, is recognized by the lien statutes in this state and perhaps sometimes, by the courts. The statute must be construed liberally, says the statute, ergo, all doubts, both of law and of fact, must be resolved against the owner. The owner has two methods only by which he can attempt to escape being obliged to pay more than the contract price; one, the contractor's bond, the other, by dogging the footsteps of the contractor, and ascertaining where he buys and what payments he makes. Taking a bond from the contractor, affords little or no protection. The principles of law govering sureties afford a perfect protection to the sureties on such a bond. It is a notorious fact, that judgments are never obtained, though an occasional attempt is made on a contractor's bond. To successfully dog the footsteps of the contractor, would require omniscience and omnipresence.

I- is undoubtedly a proper law, which gives the mechanic a lien for the enforcement of his just dues. He is entitled to it; however, under no principle of the common law or of equity. He is entitled to it, not on the doctrine of enrichment, not because he improves or injures another's property, but it is proper to give it to him, because the strong should protect the weak, because I am my brother's