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the contract, from said owner to said contractor on being served with a notice by such sub-contractor, as provided in the last preceding section, said owner may withhold out of the first money due, or to become due under the contract, a sufficient sum to cover the lien claimed by such sub-contractor, journeyman, laborer, or other person performing the labor, or furnishing materials, until the validity thereof shall have been established by proper legal proceedings, if the same be contested; and if so established, the amount thereof shall be a valid offset to that extent in favor of the owner, against the contractor, and after such notice shall have been properly served upon such owner or owners, in case of failure to comply with the provisions of this section, then such sub-contractor shall have power to sue and recover from such owner or owners, whatever amount he may have lost by such failure. No attachment served on the funds in the hands of the owner of such building or superstructure, for claims other than expressed in this act, shall lie against the liens created by this act, nor shall such owner be held or legally bound to answer such attachment, until all claims under the contract, or liens created by this act, shall first be satisfied.

SEC. 4. The land upon which any building or superstructure shall be erected, together with a convenient space around the same, or so much as may be necessary for the convenient use and occupation of the premises, shall also be subject to the liens created by this act, if, at the time the labor was commenced, or the first of the materials were furnished the land belonged to the person who caused the said building or superstructure to be erected; but if such person owned less than a fee simple estate in said land, then only his interest therein shall be subject to such lien; and the liens created by this act shall be preferred to every other lien or incumbrance which shall have attached upon said property subsequent to the time at which the work was commenced, or the first of the materials were furnished, and also, to all mortgages and other incumbrances not recorded at the time such work was commenced, or the first of the materials were furnished; but nothing herein contained shall be construed as impairing any valid incumbrance upon the said land, duly made and recorded before such work was commenced or the first of such materials were furnished.

SEC. 5. The account required to be filed by the second section of this act, shall specify that it is the intention of the holder thereof to claim a lien upon the premises sought to be charged therewith, and it shall be the duty of the county clerk to file and record such notice and account, in a separate book

provided for the purpose, and from the time of such filing, all persons shall be deemed to have notice thereof.

SEC. 6. No such lien shall bind any building or superstructure for a longer period than six months after filing the same, unless suit be brought in a proper court within that time to enforce the same, or, if a credit be given, then within six months after the expiration of the credit; but no lien shall be continued in force for a longer time than two years from the time the work is completed, or the material furnished, by any agreement to give credit.

SEC. 7. Said liens may be enforced by suit in any court of competent jurisdiction, on setting forth in the complaint the particulars of such demand, with a description of the premises sought to be charged with said lien; and at the time of filing the complaint and issuing summons, the plaintiff shall cause a notice to be published at least once a week, for three consecutive weeks, in some newspaper published in the county, if there be one, and if not, then in such mode as the court shall direct, notifying all persons holding or claiming liens under the provisions of this act, on said premises, to be and appear in said court on the day specified therein, and during the regular term of said court, and to exhibit, then and there, the proof of said liens. On the appointed day, the court shall proceed to hear and determine the said claims in a summary way, or may refer the same to a referee, to ascertain and report upon said liens, and the amount justly due thereon; and all liens not so exhibited and proved, shall be deemd to be waived in favor of those which are so exhibited. On ascertaining the whole amount of said liens with which said premises are justly chargeable, as hereinafter provided, the court shall cause said premises to be sold in satisfaction of said liens and costs of suit, and any party in whose favor such judgment may be rendered, may cause the premises to be sold within the time and in the manner provided for sales on execution at law; and if the proceeds of such sale shall not be sufficient to satisfy the whole of such liens, established as aforesaid, then the same shall be apportioned according to the rights of the several parties.

SEC. 8. Nothing herein contained shall be construed to take away, or effect in any manner, any action which any such contractor, laborer, sub-contractor, or other person performing labor, or furnishing materials for such building or superstructure, would otherwise have against his employer.

SEC. 9. The holder of such lien, filed as aforesaid, on payment thereof, shall enter satisfaction of the same on record, at the request of any one interested in the property charged

with the lien, within ten days after such request, on the payment of the costs of such entry, and on failure to enter such satisfaction, he shall forfeit and pay to the party aggrieved, the sum of fifty dollars per day, until such satisfaction shall be entered, to be recovered in the same manner as other debts are recovered.

SEC. 10. When any person shall make an express contract in writing with the owners of any lot or lots in any city or town, or with the person or persons who were, at the time of such contract, in the actual possession of such lot or lots, by himself or themselves, or by his or their tenant or tenants, under bona fide claim of ownership, to grade, fill in, build upon, or otherwise improve the same, or the street in front of and adjoining the same, and shall go on and complete the said grading, filling in, or improving of said lot, or street adjoining the same, it shall be considered an improvement on said lot or lots, and he or they shall have a lien upon such lot or lots, for the amount contracted to be paid; and all the provisions of this act, respecting the mode of recording, securing, and enforcing mechanics' liens, shall apply thereto.

SEC. 11. When any person or persons shall make an express contract in writing with the owner or owners of any tract or tracts of land, or with the person or persons who were at the time of such contract, in the actual and bona fide possession of such tract or tracts of land, by himself or themselves, or tenant or tenants, to cut and cord the timber growing or being thereon, or any portion thereof, or for the purchase of said timber, or any part thereof, to be paid for when the same shall be cut and corded, and shall go on and complete such contract he or they shall have a lien on such wood so cut and corded, for the amount contracted to be paid, and may hold, take and retain possession of such wood until such contract price shall be paid, and if not paid within one month after the contract shall be completed, or work done, or purchase made as aforesaid, then all the provisions of this act, respecting the mode of securing and enforcing mechanics' liens, shall apply thereto.

SEC. 12. When any person or persons shall make an express contract in writing with any organized or incorporated mining company, or with the owner or owners of any lode or lodes of gold or silver bearing quartz, or of any other metal of value, or with the person or persons who were, at the time of such contract, in the actual possession of such lode or lodes, by himself or themselves, under bona fide claim of ownership, to cut, excavate, or run a tunnel, from any given point, into or through said lode or lodes, or sink a shaft thereon to the depth of fifty feet or more, and shall go and complete such contract,

he or they shall have a lien upon such lode or lodes, together with the tunnel thereto cut and run, or the shaft thereon sunk for the amount contracted to be paid; and all the provisions of this act respecting the mode of recording, securing and enforcing mechanics' liens shall apply thereto.

SEC. 13. This act shall be so construed as to include in its provisions bridges, ditches, flumes, acqueducts, to create hydraulic power for mining purposes, and all improvements on mining claims.

SEC. 14. Any artisan or mechanic who shall make, alter, or repair any article of personal property, at the request of the owner, or legal possessor of such property, shall have a lien on such property so made, altered, and repaired, for his just and reasonable charges for his work done and materials furnished, and may hold and retain possession of the same until such reasonable and just charges shall be paid, and if not paid for within two months after the work shall be done, such mechanic or artisan may proceed to sell the property by him so made, altered or repaired, at public auction, by giving three weeks notice of such sale, by advertisement in some newspaper published in the county in which the work may be done, or, if there is no such newspaper, then by posting up notices of such sale, in three of the most public places in the town where such work was done, and the proceeds of said sale shall be applied, first, to the discharge of such lien, and the costs and expense of keeping and selling such property, and the remainder, if any, shall be paid over to the owner thereof.

SEC. 15. This act shall take effect and be in force from andafter its approval by the governor.

APPROVED, January 23d, 1864.

LOCAL AND SPECIAL LAWS.

AN ACT

To Organize the County of Owyhee.

Be it enacted by the Legislative Assembly of the Territory of Idaho as follows:

SECTION 1. That all that part of said territory lying south of Snake river, and west of the summit of the Rocky Mountain chain be, and the same is hereby organized into a county to be called Owyhee.

SEC. 2. That all quartz claims that have been taken or may hereafter be taken within the bounds of the said county of Owyhee, be recorded in the county auditor's office of said county, in a well bound book, or books, with notes, or margins indicating the name or names of the person or persons who located the same; as also any and all tranfers that have been or may hereafter be made in quartz claims; which said books notes, and margins, shall be open to inspection by any and all persons whatever.

SEC. 3. That the county seat of the said county of Owyhee shall be, until otherwise ordered, at such place as the county commissioners of said county may select.

SEC. 4. This act to be in force when approved by the governor of the territory.

APPROVED, December 31, 1863.

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