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keeper. It is a matter of necessity that such wage earner should have prompt payment for his labor; he is unable, ordinarily, to endure long waiting for or litigation over his dues. He is unable to get a report on the financial standing of his employer. He is not in a situation to pick and choose. For this reason, it is eminently fit that the law should ensure his hire. Furthermore such a lien law is theoretically of benefit to the other parties interested, because as it insures the laborer his hire, it insures the owner and contractor the best possible service from the laborer and eliminates all difficulty arising from any question as to the solvency of the contractor. In other words, the
. real object of the first law enacted; namely, the encouragement of building is subserved by such a law.
By what process of reasoning have our law makers arrived at the conclusion that the material-man should be thus protected? He is able to drive sharp bargains; he is able to get security if he wants it; he can protect himself. He stands on an equality with the owner mentally and financially. It should not be the policy of the law to protect those who need no protection. The forgotten man in these innovations in legislation should not be forgotten altogether. He is entitled to a little consideration even if he be but a property owner. Common justice demands. that the material-man should have no claim against the owner's property for material sold the contractor at least until after he has notified the owner of such claim, and then only for the balance due the contractor, after paying all liens for labor. Why should there be any discrimination in favor of the material-man as against the owner ? Is there any reason why there should be one law for the recovery of debt for the seller of lumber and iron, stone and brick and hardware, and another law for the seller of groceries and clothing? Is not this most vicious class legislation ? Originally, the policy of the mechanics' lien was to encourage, not discourage the erection of houses and other buildings. That should be the policy now, but that is not the result of our present law. Now the owner is without any protection in the law, and is practically dependent upon the honesty and financial ability of the contractor. The spirit of our institutions is against such discrimination in favor of any class where such discrimination is unnecessary.
I respectfully submit that the interests of the people require and common justice demands the modification of the lien law so that either the material-man shall have no lien for materials furnished a contractor, or, if he have such a lien, it shall only be to the extent of the money due the contractor after notice of such claim has been given by the material-man to the owner, and after the payment of all labor liens.
I have made this paper short in the hope that there would be a general discussion on the subject, which would result in a recommendation to the legislature of an amendment of the lien law in one of the ways suggested.
Paper read by Orange Jacobs, of Seattle.
Called upon at the eleventh hour to fill the place of one well qualified by education, by experience and by a wider and more extended observation than myself in the field of legal reminiscences, I feel somewhat the embarassment of the situation. The committee showed the highest appreciation of the fitness of things and of persons when they made my friend, now recreating in the sunny clime of California, their first choice for the pleasing task now, unfortunately for this Association, devolved upon me. It is a case of devolution, not evolution. I possess not that gravity of countenance nor that gravity of demeanor nor that solemnity of vocal utterance so necessary to give full zest even to a weli told tale. My absent friend possesses these qualities in a high degree.
In every new and sparsely settled country there is always a closer social intercourse between the Bench and the Bar and a greater freedom of utterance than in after years. When population increases to the dignity of a Commonwealth and costly court houses are built, there is connected with every court room a sort of “holy of holies,” from which the Judge emerges in the morning and, after the crier performs his duties, into which he enters at night. This may, and probably does, aid in the dispatch of the public business, but it operates as an effectual curtailment of that free and easy social intercourse which once existed. We rarely see the Judge now except when he is fully clad with judicial thunder. I do not know that I desire a full return of the customs of other days, but I would if I could check this tendency to social isolation.
In those good old days, my absent friend was discussing a motion before his Honor, Judge Greene, involving the question of whether certain alleged facts amounted to fraud. In support of his contention, my friend was reading copious extracts from Browne on Frauds. In doing so, he was constantly calling that author's name Brown-e. This grated on the learned and critical ear of Judge Greene, and he interrupted our friend with the question: "Why do you pronounce that name Brown-e?" spelled," answered our friend with charming gravity, “B-r-o-w-n-e;" “ if that is not Brow-ne, I would like to know what it does spell ?” “I spell my name," said the judge, “G-r-e-e-n-e! “You would not call me Gree-ne, would you ?” “That depends,” replied our friend, “on how your Honor decides this motion." The Judge waived the contempt and joined in a general laugh.
It is a delicate matter to discuss the qualities, mental and otherwise, of a living and honored brother, and I hope to be pardoned for the following: Wit and humor though distinct, are often confounded. The grave and solemn man is often full of humorous conceptions. presses their utterance sometimes with difficulty. He consumes them in an internal feast of pleasure. It is an exhilarating but lonely feast. In this there may be a tinge of selfishness—but we will not condemn. But when he opens the mental throttle and allows them to flow forth, they give pleasure to all and continue as a pleasant and fragrant memory. Judge Greene, though not a wit, is full of humor. His description of an “Inspector afloat,” in an Admiralty case in this then District, in which he contrasted what an Inspector afloat ought to do and see with what this Inspector did not do and see, is an admirable specimen of genuine humor. I believe it was published at the time, but I presume but a few of my hearers have ever seen it. It ought to be re-published.
It is worth preserving. It was possibly this latent trait in the Judge's mental constitution that led to the following scene.
There was an attorney at Steilacoom, where court was
then held, by the name of Hoover. He was a bright, active young man, but his chirography resembled, in illegibility if not in form, the Egyptian Hieroglyphics. He filed an answer to a complaint for a client. The Hon. Frank Clark, attorney for plaintiff, demurred to it because it did not state facts sufficient to constitute a defense-in fact, did not state anything—that, if it did, it was wholly illegible and passed finding out. As soon as Mr. Clark had finished reading his demurrer, the Judge, who prided himself on his ability to read all forms of handwriting, asked Mr. Clark to hand the answer to him, saying that he thought he could read it. It was handed up to the Judge. He read the first line in the body of the answer all right, but utterly broke down on the second line. He scanned the remainder of the answer deliberately and with care, then handed it to Mr. Hoover, asking him to read it. The Judge meantime watching him with an intensified, if not admiring, gaze. When Mr. Hoover had finished, the Court said: “Mr. Hoover, hold up your hand.” Mr. Hoover did so, and in that solemn position the Court swore Mr. Hoover as to the correctness and truthfulness of his interpretation of that answer. Mr. Hoover has left the profession and gone into the more lucrative business of banking. On account of the unjust criticism sometimes made on my own hand manual, I feel inclined to treat him kindly.
There may be a dash of the ego in the following reminiscences, but it will be seen that I was but the incident or subordinate actor or, more often, victim, than otherwise.
While the Third was my judicial district, I was ordered by the legislature of A. D. 1869 and 1870 to hold court in the Second, as well. The docket at Vancouver, for various causes, not necessary for me to mention, had become very much clogged. There were over two hundred cases, civil and criminal, awaiting trial. The legislature gave me six weeks to clear up that docket. I went to Vancouver a little out of humor from the imposition of double dnties, but with the determination to accomplish the task within the allotted time if continued and sharp work