ated a statement containing-First, a notice of intention to hold and claim a lien; second, a description of the property to be charged therewith; third, the probable value of the work to be done, and the probable value of the materials to be furnished, as near as may be. Said statement may be filed before he begins to do such work or to furnish such materials. Likewise he may file such statement at any time after he begins to do such work or to furnish such materials, and before the completion of his undertaking under the contract. From the time he shall have filed such statement he shall have a lien for such work thereafter done by him, or for such materials thereafter furnished by him, not exceeding the sum stated as the probable value thereof. In case any such party claiming a lien shall have done work or furnished materials before the filing of such statement, he may include in such statement a statement of the value, or probable value, of the work already done and materials furnished, as near as may be, for which said last-named values, to the extent of the sum mentioned, said lien shall likewise attach," etc. This section is limited to subcontractors in either degree, and simply provides an additional safeguard if they choose to avail themselves of it. If a person enters into a contract with a contractor of a higher degree to do work or to furnish materials, and does not engage to enter upon the performance of it until at some future day, he may file this statement, and from the time he does file it "he shall have a lien for such work thereafter done or for such materials thereafter furnished by him, not exceeding the sum stated as the probable value thereof." The effect of this is to protect him against, and to give him priority over, any other subcontractors who might commence to do work or to furnish materials between the date of his making the contract and the date of his entering upon the performance of it, and no lien can attach in favor of any claimant until he files this statement or begins to work or to furnish materials. Counsel for appellant contend that the word "may," in the expression "may file in the office," etc., should be construed "shall." If this theory were correct, then the effect would be that no lien of a subcontractor would attach until the statement provided for in this section were filed. This might, and in many cases doubtless would, render nugatory the provision in the first section of the act that the claimant shall have a lien "to the extent of the interest or claim of such owner thereto at the time of the commencement to do such work or to furnish such materials," in so far as subcontractors are concerned, and would place them in a less favorable position than the principal contractor, whose rights are not disturbed by section 12. Under such an interpretation the owner might at any time before the filing of the statement convey or mortgage or otherwise incumber the interest which he had in the property at the time such contractor com menced to perform his contract. This would also be in derogation of the provision of seetion 2, and would render the provisions of the first two sections repugnant to those of section 12, giving no effect to the former, which would be contrary to the rule of construction, that, where an act is susceptible of two constructions, and one gives effect to all its provisions and the other does not, the one giving effect should be adopted. It is evident, from a careful consideration of the law in question, that the legislature intended to augment, rather than abridge, the rights of the laborer. The conclusion is that the word "may" was used in its ordinary sense, and that the provision of section 12 is permissive, and not mandatory. The claimant may avail himself of it or not, as he chooses. If he does not, it will in no way interfere with his lien, which attaches when he commences to do work or to furnish material. If he does file the statement, he is limited in his recovery to the sum specified therein. The last sentence in section 12, above quoted, to the effect that the subcontractor may file the statement at any time after he has done work or furnished materials, is also permissive, and the claimant may avail himself of it or not, at his pleasure. The intent of the legislature becomes more apparent by an examination of section 19 of the same act, which reads as follows: "All such liens shall relate back to the time of the commencement to do work or to furnish materials, and shall have priority over any and every lien or incumbrance subsequently intervening, or which may have been created prior thereto, but which was not then recorded, and of which the lienor under this act had no notice. Nothing herein contained shall be construed as impairing any valid incumbrance upon any such land duly made and recorded before such work was commenced, or the first of such materials were furnished," etc. This section provides in express terms that all such liens shall attach at the time the performance of the contract commenced; and again it provides that valid incumbrances upon such land, made and recorded before that time, shall not be impaired, thus clearly indicating that no act which the owner may thereafter do shall injuriously affect the lien of the claimant on the property. Those above mentioned appear to be all the sections which are material to the determination of the question raised in this case. While casual reading may develop some doubt as to the effect which ought to be given to their several provisions, yet more deliberate consideration has a tendency to point out the real intention of the legis lature in enacting this law. Such intention cannot be ascertained by a consideration of the several sections separately. The whole act must be construed together, and, if possible, effect be given to every part of it. It is evident from a deliberate consideration of the whole act that the legislature intended to have the lien of subcontractors attach on the date of their commencing to do work or to furnish materials. The owner must be presumed to observe the presence of the subcontractors and others on his property when they commence to labor or to furnish materials. The law requires him to recognize their claim in the order of the priority of their liens, and he cannot treat any payment made to the principal contractor, after work has been commenced or materials furnished by subcontractors, as an offset to the claims of the lienors. He may make such payment without their consent, but it will be at his peril. After the work is completed or the materials are furnished the lien may be lost by a failure to file the statement provided in section 10 within the time allowed in section 11, or by a failure to foreclose within the time as limited in this act; but, unless there is such failure, or a payment of the claim, the property will be burdened with the lien, subject to prior incumbrances with which the property was burdened when the performance of the contract was commenced, or when the statement under section 12 was filed. Phil. Mech. Liens, §§ 225, 228; Teahen v. Nelson, 6 Utah, 363, 23 Pac. Rep. 764; Mellor v. Valentine, 3 Colo. 255; Monroe v. West, 12 Iowa, 119; Tritch v. Norton, 10 Colo. 337, 15 Pac. Rep. 680. In this case the liens were abandoned by agreement of the parties, so far as the owner of the property was concerned, upon his paying into court the sum found to be due from him to the principal contractor. Neither of the parties had filed a statement under section 12, but each of them had filed one under section 10. We think the trial court correctly de cided that the Carey-Lombard Company, who first entered upon the performance of its contract, had a superior llen, and was entitled to have the money so paid into court applied towards the payment of its claim. The judgment is affirmed. MINER, J., concurs in the result. (9 Utah, 85) NATIONAL BANK OF THE REPUBLIC v. HAPGOOD et al. (Supreme Court of Utah. June 6, 1893.) PARTIES-TRANSFER OF INTEREST PENDING SUIT. Under 2 Comp. Laws, § 3187, which provides that in the case of any transfer of interest the action or proceeding may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action or proceeding, an action to foreclose a mortgage may be continued in the name of the original plaintiff for the benefit of the indorsee of the mortgage note, who paid it to plaintiff during the pendency of the action. v.33P.no.4-16 Appeal from district court, Salt Lake county; C. S. Zane, Justice. Action by the National Bank of the Republic against H. F. Hapgood, James Thompson, Mary L. Christian, and Theodore Burmester for the foreclosure of a mortgage. From a judgment in plaintiff's favor, defendant Hapgood appeals. Affirmed. Hoge & Burmester and Arthur Brown, for appellant. J. G. Sutherland, for respondent. BARTCH, J. This is an action to foreclose a mortgage given to secure a note for $1,000. The note was given by defendant Hapgood to defendant Thompson. Thompson assigned the note to defendant Christian, who assigned it to plaintiff. Thompson and Christian guarantied payment. After this suit was commenced, Christian paid the note to plaintiff, and this action was continued in the name of plaintiff for the benefit of defendant Christian. A decree of foreclosure was made, and the mortgaged premises ordered sold. Defendant Burmester was a purchaser subject to the mortgage. Defendant Hapgood appeals from the judg ment. The only question presented by this appeal is whether, after defendant Christian paid the debt to plaintiff, it could prosecute the action to judgment for her benefit. Section 3187 of the Compiled Laws of Utah (volume 2, p. 233) is as follows: "An action or proceeding does not abate by the death or any disability of a party, or by the transfer of any interest therein, if the cause of action or proceeding survive or continue. * In * * the case of any transfer of interest, the action or proceeding may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action or proceeding." This section corresponds to section 385 of the California Code. This section of the Canfornia Code has been construed by the supreme court of that state in cases similar to the one at bar. See Mastick v. Thorp, 29 Cal. 446, which was an action concerning real estate, and the title was transferred pending suit; yet a recovery was permitted to stand in the name of the vendor for the benefit of his vendee. In the case of Moss v. Shear, 30 Cal. 468, the same court held that this section of the California Code not only allowed a recovery of the land sued for in the name of the original plaintiff, but also permitted a recovery of rents and profits after the sale, and up to the day of trial. This latter would appear to be a much more doubtful case than the one at bar. To the same effect are the cases of Hestres v. Brennan, 37 Cal. 385, and O'Neil v. Dougherty, 46 Cal. 576. We adopted this section of the California Code after the construction given in the above cases had been made. We are in clined to follow this construction. There is no error in the record, and the judgment is affirmed, with costs to respondent. MINER, J., concurs. (9 Utah, 101) HARRIS v. CHIPMAN. (Supreme Court of Utah. June 5, 1893.) ADMINISTRATION --BOND-FAILURE TO GIVE-EVIDENCE ESTOPPEL. 1. Evidence of the clerk of probate that he had been unable to find in his office any bond relating to the administration of an estate 15 years before, and that he did not know whether any such bond had been filed, as at that early day no papers were recorded, and attorneys frequently took out and kept such papers for months, does not show conclusively that no bond was given. 2. The fact that an administratrix failed to give bond, or that the letters of administration were not under seal, would not necessarily avoid the letters, but make them voidable only, to be corrected on appeal. 3. A purchaser who declines to take land acquired by the seller through mesne conveyances from an administratrix solely because the administratrix had failed to give bond, thus rendering the title defective, cannot, after litigation has been begun, change his ground, so as to object also to the letters,-that they were not under seal. Appeal from district court, Salt Lake county; C. S. Zane, Justice. Plain Action by Hyman Harris against Richard Chipman. Judgment for defendant. tiff appeals. Affirmed. Frank Pierce, for appellant. Bennett, Marshall & Bradley, for respondent. MINER, J. The plaintiff alleges that on the 17th day of June, 1890, the parties hereto entered into a written contract whereby it was agreed that the defendant should sell to the plaintiff, and plaintiff should buy of defendant, a certain piece of property in Salt Lake City for the consideration of $5,250. The property was to be conveyed on or before July 17, 1890, and the title was to be good and marketable. Seven hundred dollars was paid down. That the defendant failed to furnish a good and marketable title, as agreed, and this action is brought to recover back the $700 paid for the use of the plaintiff. The respondent denied the allegations in the complaint, and claimed the title was good and marketable; that he tendered a good and sufficient warranty deed, with full abstract of title, as agreed. The court found the issues for the defendant, for which same plaintiff appeals from an order denying him a new trial. The proof shows that, in 1873, Robert Wright owned the property, and died in 1874, leaving Elsie Wright, his widow and heir, and two minor children, both of whom died in 1874. That the widow remained in possession until 1879, when she conveyed it to Joseph Sowden, and he, through his grantors, conveyed it to defendant. No one disputed her right. Robert Wright left no debts, and the funeral expenses and expenses of administration are all paid. That in September, 1877, the probate court made an order setting aside said property for sole use and benefit of Elsie Wright. And evidence was introduced tending to show that defendant made tender of deed, and complied with his agreement. The plaintiff contends that in the settlement of the estate of Robert Wright, in 1877, the order of the court appointing Elsie Wright administratrix of said estate, the clause in the blank requiring a bond to be given was erased, as appears by the files in the office, and claims no bond was given by the administratrix as required by law. The clerk of the probate court testified that he was unable to find any bond among the files; that at this early date none of the papers in the probate court were recorded, and he could not say whether a bond was filed or not; that such papers were frequently taken out and kept by attorneys for months; that it was the custom of the office to keep the original letters in the files, and give certified copies to administrators. A copy of the letters of administration was in evidence, but had no seal attached, and other files were also in evidence. Under this state of facts the probate court proceeded to administer the estate, and treated Elsie Wright as duly-qualified administratrix. Fifteen years have elapsed since such administration. Letters of administration were duly issued to Mrs. Wright, and the property was awarded to her under its decree. The proof offered, that no bond had been given, was not conclusive on that point. In such case, error must be shown. It cannot be inferred, except where such inference is inevitable. Everything consistent with the record, which would have warranted the appointment and issue of letters of administration, will be presumed to have existed, and to have been found and acted upon by the probate court. "Acts done by the court, which presuppose the existence' of other acts to make them legally operative, are presumptive proof of the latter." Schnell v. Chicago, 38 III. 382; Bank v. Dandridge, 12 Wheat. 70; McNitt v. Turner, 16 Wall. 363. Even if it were shown that the administratrix failed to give a bond in this case, this fact would not necessarily avoid the letters of administration, but would only make them voidable, to be corrected on appeal. 1 Woerner, Adm'n, p. 546; Ex parte Maxwell, 79 Amer. Dec. 62; Palmer v. Oakley, 2 Doug. (Mich.) 433; Bloom v. Burdick, 37 Amer. Dec. 301; Slagle v. Entrekin, 44 Ohio St. 637, 10 N. E. Rep. 675; Portz v. Schantz, 70 Wis. 497, 36 N. W. Rep. 249; Duffin v. Abbott, 48 Ill. 17; Wescott v. Cady, 5 Johns. Ch. 335. The appellant objects that the letters of administration were not made under seal. These letters conclude with the words, "Witness my hand, with the seal of said court hereto affixed, this first day of October, 1877," and were signed by the clerk. These letters were followed by an order of the court, dated October 26, 1877, setting apart said property for the sole use and benefit of Elsie Wright, and the objection may be answered by the authorities sustaining the doctrine already announced. The authentication of the letters as these were authenticated was held sufficient in Witzel v. Pierce, 22 Ga. 112. But, without relying upon this authority, let us see what appellant's first objection was to this title. It appears from the record that appellant refused to pay for the land, and declined to receive the deed, on the single and only ground that the absence of the bond avoided the administration, and made the title defective. No other objection was made or urged at the time for the refusal to accept the title, and the letter of advice of appellant's attorney places the defect on this ground only. It was held in Railway Co. v. McCarthy, 96 U. S. 267, "that, where a party gives a reason for conduct and decisions touching anything involved in a controversy, he cannot, after litigation has begun, change his ground, and put his conduct upon another and different consideration. He is not permitted to change his hold. He is estopped from doing it by a settled principle of law." Tayloe v. Insurance Co., 9 How. 390. The objection is taken that the court erred in allowing the defendant to introduce oral evidence outside the record title tending to show title under the statute of limitation, and under the contract proven in this case calling for a good marketable title. No exception was taken to the admission of this testimony, and we do not consider it necessary to review the many conflicting authorities bearing upon it, as the main question has already been disposed of. The judgment of the court below is affirmed, with costs. Laws 1892, c. 44, providing that in all civil actions a verdict may be rendered by a concurrence therein of nine or more members of the jury, is not in conflict with Const. U. S. Amend. 7, providing that in suits at common law, where the value in controversy shall exceed $20, the right of trial by jury shall be preserved. Appeal from district court, Salt Lake county; C. S. Zane, Justice. Action by H. A. Hess and others against Margaret White, administratrix, to recover on a written guaranty. Judgment was rendered for defendant, and plaintiffs appeal. Affirmed. 1 Rehearing denied. Richard H. Cabell and Ritchie & Ritchie, for appellants. Richards & Moyle, for respondent. PER CURIAM. This was an action at law, brought by the appellants against the respondent to recover upon a written guaranty to pay for goods sold and delivered to one Frances Brown. The guaranty was executed by the respondent's intestate. The cause was tried by a jury regularly impaneled. After the jury had deliberated upon their verdict, they brought into court a verdict, signed by ten of their number, but two of the jury dissented from it, and refused to sign it. The appellants objected to the entry of judgment upon this verdict "because the verdict was rendered in a manner not authorized or warranted by the constitution and laws of the United States applicable to the territory of Utah, but contrary thereto, in that said verdict was not a unanimous verdict, but was agreed to by ten of said jurors only, and is therefore illegal, and of no effect." Judgment was entered upon the verdict, whereupon a motion for a new trial was made, and as ground therefor the same objection was urged. The motion for a new trial was overruled, and appeal taken to this court. The sole question argued upon appeal is whether a verdict rendered by 10 out of the 12 jurors is legal under the constitution and laws of the United States and under the laws of the territory of Utah. The clause of the constitution relied upon is the seventh article of amendments thereto: "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." The laws of the United States applicable are cited as follows: Section 17 of the organic act, which provides "that the constitution and laws of the United States are hereby extended over and declared to be in force in said territory of Utah, so far as the same, or any provision thereof, may be applicable." This section was approved September 9, 1850. Also section 1891 of the Revised Statutes of the United States, which enacts: "The constitution and all laws of the United States, which are not locally inapplicable, shall have the same force and effect within all the organized territories, and in every territory hereafter organized, as elsewhere in the United States." Also there was an act in force April 7, 1874, which provided (18 Stat. 27) "that it shall not be necessary in any of the courts of the several territories of the United States to exercise separately the common-law and chancery jurisdiction vested in said courts; and that the several codes and rules of practice adopted in said territories, respectively, in so far as they authorize a mingling of said jurisdictions, or a uniform course of proceeding in all cases, whether legal or equitable, be confirmed; and that all proceedings heretofore had or taken In said courts in conformity with said codes and rules of practice, so far as relates to the form and mode of proceeding, be, and the same are hereby, validated and confirmed: provided, that no party has been or shall be deprived of the right of trial by jury in cases cognizable at common law." At the time this last statute was passed there was a law of the territory of Montana which authorized the rendition of a verdict upon the concurrence of three-fourths of a jury. This law had been enacted in January, 1869. The law of the territory of Utah was passed under the grant of legislative power in the organic act, section 6 of which provides "that the legislative power of said territory shall extend to all rightful subjects of legislation, consistent with the constitution of the United States and the provisions of this act," and that "all the laws passed by the legislative assembly and governor shall be submitted to the congress of the United States, and, if disapproved, shall be null, and of no effect." In pursuance of this grant of legislative power, section 493 of the Code of Civil Procedure, which is section 3371 of 2 Comp. Laws 1888, p. 286, in force August 1, 1884, provided: "When the jury have agreed upon their verdict, they must be conducted into court, their names called by the clerk, and the verdict rendered by their foreman. The verdict must be in writing, signed by the foreman, and must be read by the clerk to the jury, and the inquiry made whether it is their verdict. If any juror disagrees, they must be sent out again; but, if no disagreement be expressed, and neither party requires the jury to be polled, the verdict is complete, and the jury discharged from the case. Either party may require the jury to be polled, which is done by the court or clerk asking each juror if it is his verdict. If any one answer in the negative, the jury must be sent out again." This statute had superseded section 174 of an act approved February 17, 1870, Comp. Laws 1876, p. 447, which provided: "When the verdict is given, which must be by unanimous agreement, except by the consent of the parties, it shall be read aloud," etc. In 1892 the legislature amended section 3371, supra, to read as follows: "In all civil cases a verdict may be rendered on the concurrence therein of nine or more members of the jury. When the jury have agreed upon their verdict, they must be conducted into court by their foreman. The verdict must be in writing, and signed by their foreman, if he is a concurring juror, and if he is not a concurring juror it must be signed by all the concurring members, and be read by the clerk to the jury, and the inquiry made whether it is their verdict, and the answer may be made by any juror signing the verdict. If more than three jurors dissent, they must be sent out again, but, if not more than three jurors dissent, and neither party requires the jury to be polled, the verdict is complete, and the jury discharged from the case. Either party may require the jury to be polled, which shall be done by the judge or clerk asking each juror if it is his verdict. If more than three answer in the negative, the jury must be sent out again." Laws Utah 1892, p. 46.1 It will be seen that until 1892 the statutes of the territory by express enactment required the verdict of the jury to be unanimous. The original act of 1870 permitted this unanimity to be waived by the consent of the parties, but the act of 1884 was silent upon such waiver. It is apparent that the sole question here is whether the provision for a verdict by three-fourths of the jury in a civil case was a rightful subject of legislation consistent with the constitution of the United States, providing that the right of trial by jury shall be preserved. In other words, do the words "trial by jury," as used in the seventh amendment of the constitution, mean a jury which renders a verdict by the unanimous action of its 12 members? It may be remarked that unanimity of action was not considered a constituent part of trial by jury by the framers of the California constitution of 1879, which provided in section 7, art. 1: "The right of trial by jury shall be secured to all, and remain inviolate; but in civil actions three-fourths of the jury may render a verdict." This is not preserving the right of trial by jury inviolate if a trial by jury in a civil action requires unanimous action by the members of the jury. At the time the amendments to the constitution were proposed in the house of representatives by Mr. Madison, the original proposition applied to trial of crime the express qualification of unanimity for conviction, but did not apply the same to suits at common law. At that period unanimity of action on the part of the jury was not required in Scotland, and such a requisite had been strongly attacked in England by John Locke and Jeremy Bentham. Originally, unanimity of action had not been required, even by the common law of England. One of the qualifications of jurors at the time of the adoption of the constitution was that they should be freeholders, yet this qualification has not been considered as a part of the trial by jury; but, if the words "trial by jury," as used in the seventh amendment, means a jury trial with all its accustomed requisites, it is difficult to see how the qualification as to freeholders could be changed. Upon this question the supreme court of the United States has, so far as we have been referred, never passed. That court expressly declined to pass on the question in Dunphy v. Kleinsmith, 11 Wall. 610, where this precise question was involved in an appeal from the territory of Montana. We are aware that there are decisions in large number which affirm that 'Chapter 44. |