what steps their agent had finally got the money, their ignorance was their own fault.

There being therefore no defense shown on the merits, to the liability of defendants on the indemnity bond, we have further to consider whether there was any irregularity in the mode of entering the judgment. Correll had notice of the suit, and his reply to Stuart," Morgan & Co. are square people, and we will take care of you," shows that he knew the ultimate liability of his principals to save the bondsmen harmless, and acquiesced in what Stuart was doing in the action. Stuart of course had the right to appear for himself and his cosurety, and the notice 201 to Correll, and his conduct on receiving it are convincing evidence of his consent to Stuart's acting for Morgan & Co. also. That Stuart, for professional reasons, entirely proper, preferred to have the appearance, in a case to which he was a party, entered in the name of another attorney, is of no importance at all. There was no delegation by him of discretion or of authority; he conducted the case himself, and that he did so in the name of Mr. Swartz was a difference of form, not of substance.

There was no sufficient ground for opening the judgment. It was regular on its face, and the evidence shows no defense to it on the merits.

Order opening judgment reversed and rule discharged.

ATTORNEY AND CLIENT-AUTHORITY OF ATTORNEY TO GIVE INDEMNITY. A bond of indemnity under seal, executed by an attorney whose authority was by parol, is valid against his client as a simple contract without regard to the seal: Ford v. Williams, 13 N. Y. 577; 67 Am. Dec. 83. Attorneys at law who are employed to collect debts for nonresident clients, have authority to employ all the necessary and usual means for the accomplishment of this object. They have implied authority to indemnify an officer making a levy: Clark v. Randall, 9 Wis. 135; 76 Am. Dec. 252, and note. See the extended note to Kirk's Appeal, 30 Am. Rep. 358.

AGENCY-AUTHORITY OF AN AGENT GENERALLY.—Authority to an agent to do an act includes the power to do every thing necessary and requisite to its performance: Piercy v. Hedrick, 2 W. Va. 458; 98 Am. Dec. 774, and note; Benjamin v. Benjamin, 15 Conn. 347; 39 Am. Dec. 384, and note. See further the extended note to Huntley v. Mathias, 47 Am. Rep. 518.

JUDGMENTS ON UNAUTHORIZED APPEARANCE OF ATTORNEY-RELIEF FROM. -In order to enable a party represented by an unauthorized attorney to be relieved, he must negative the presumption of authority in the attorney to appear: Harshey v. Blackmarr, 20 Iowa, 161; 89 Am. Dec. 520, and note, When the court acquires jurisdiction of an action solely by the appearance

of an attorney the party for whom the appearance was made may deny the authority of such attorney, and, if the appearance was unauthorized, vacate the judgment: Winters v. Means, 25 Neb. 241; 13 Am. St. Rep. 489, and note. See Corbitt v. Timmerman, 95 Mich. 581; 35 Am. St. Rep. 586, and note; and also the extended note to Bunton v. Lyford, 75 Am. Dec. 146.

FIDELITY MUTUAL LIFE ASSOCIATION V. JACKSON.

[163 PENNSYLVANIA STATE, 208.]

MECHANICS' LIEns-Contract NOT TO FILE.-A building contract under which the contractor agrees to keep the lot and building free from mechanics' liens, and any and all manner of charges, precludes the prin cipal contractor, subcontractor, or any other person from filing and foreclosing any lien or charge against the building.

J. W. Eckels, for the appellant.

J. W. Wetzel, for the appellee.

208 GREEN, J. This is an appeal from the decree of the court below making distribution of the proceeds of the sale of the real estate of Newton Jackson. The question at issue is as to the right to file liens of certain mechanic's lien creditors, who furnished work and materials to one James Porter, who was the principal 209 contractor, for the erection of certain buildings on the premises sold by the sheriff. The contract be tween the owner and the principal contractor was an ordinary building contract, and contained the following provisions: "The party of the second part agrees that he will keep the lot and building free from mechanics' liens and any and all manner of charges." The auditor and court below held that this language precluded the principal contractor from filing any lien, and his lien was rejected from the distribution. But they also held that there was nothing to prevent subcontractors from filing liens, because it might be reasonably concluded that the parties meant by the foregoing language that if subcontractors should file liens, the principal contractor should remove them, and therefore that the case was brought within the ruling, in Nice v. Walker, 153 Pa. St. 123, 34 Am. St. Rep. 688, and Cresswell Iron Works v. O'Brien, 156 Pa. St. 172, 36 Am. St. Rep. 30. We cannot agree to this conclusion. The language of the clause in question, as we understand it, is absolute, and means just what it says, that the contractor shall "keep the lot and building free from

mechanics' liens, and any and all manner of charges." That is, the lot and building shall be free at all times from me. chanics' liens and any kind of charges. The lot and building would not be kept free from such encumbrances if they could be imposed at any time. They are to be kept free, and that condition could not be maintained if the liens were allowed to be filed and maintained during a continuous period and only released at the completion of the building, or some other indefinite time. If they are to be kept free they must by necessity be free all the time. It is very plain, therefore, that the words of the clause in question are the full equiva lent of a contract not to file, or permit to be filed, by any person, any lien or charge whatever. This brings the case directly within Schroeder v. Galland, 134 Pa. St. 277, 19 Am. St. Rep. 691, Benedict v. Hood, 134 Pa. St. 289, 19 Am. St. Rep. 698, and other kindred cases; and especially Ballman v. Heron, 160 Pa. St. 377, and it is entirely consistent with every thing contained in Nice v. Walker, 153 Pa. St. 123, 34 Am. St. Rep. 688.

The cases of Evans v. Grogan, 153 Pa. St. 121, Murphy v. Ellis, 153 Pa. St. 133, Cresswell Iron Works v. O'Brien, 156 Pa. St. 172, 36 Am. St. Rep. 30, and Lucas v. O'Brien, 159 Pa. St. 535, are all cases in which the provisions of the contract were consistent with a privilege on the part of a subcontractor to file a a lien, and contained 210 nothing exclusive of such a right. They are therefore inapplicable to the present case, where the express words of the contract are in entire hostility to any such right. It follows that the claims of the mechanics' lien creditors in this case must be postponed to that of the appellant. The decree of the court below is reversed, and the record is remitted with instructions to distribute the fund in accordance with this opinion at the cost of the appellees.

MECHANICS' LIENS-AGREEMENTS NOT TO FILE.-If a contractor covenants with an owner not to file a lien nor to permit one to be filed by others, neither he nor any subcontractor under him is entitled to a lien: Nice v. Walker, 153 Pa. St. 123; 34 Am. St. Rep. 688; Taylor v. Murphy, 148 Pa. St. 337; 33 Am. St. Rep. 825, and note,

BOLLINGER V. GALLAGHER.

[163 PENNSYLVANIA STATE, 245.]

HUSBAND AND WIFE-MARRIED WOMAN'S NOTE-RIGHTS OF HUSBAND'S CREDITORS.—A statute authorizing married women to acquire property by purchase free from their husbands' debts and to give notes therefor, but only when their husbands join in their execution, cannot be construed, as matter of law, as clothing the husband with the title to property purchased solely on the credit of the wife, so as to render it liable for his sole debts, when the purchase price of the property is secured by a note signed by the wife, her husband and her sureties, and paid by the wife and her sureties alone.

LAWS OF ANOTHER STATE-PROOF OF CONSTRUCTION OF.-The construction of a statute of another state may be shown by the testimony of a lawyer practicing therein.

LAWS OF ANOTHER STATE-PROOF OF CONSTRUCTION.-The construction of a statute of another state by the courts of that state may be shown either by one familiar with or by the published reports of the decisions made by such courts or both methods may be used in the same case. TRESPASS for a wrongful levy upon personal property. Upon the trial, and after the court had admitted the statutes of another state in evidence to show what was the written law of that state in regard to the rights and capacities of married women, the plaintiff offered as a witness a practicing lawyer of that state, and proposed to prove by him the construction placed upon such statutes by the courts of that state. This offer was rejected by the court as incompetent. Judgment for the defendants, and plaintiff appealed.

H. C. Niles, W. F. B. Stewart, and G. E. Neff, for the appellant.

H. L. Fisher, G. G. Fisher, C. E. Ehrehart, and O. L. Quinlan, for the appellees.

249 WILLIAMS, J. This case was in this court in 1891, and may be found reported in 144 Pa. St. 205. The principal questions then raised 250 were: 1. Whether the attachment proceedings begun by Johns, before P. S. Bowman, Esq., against George Bollinger, were sufficient to support a seizure and sale of Bollinger's goods; 2. Whether, if they were sufficient as against the defendant therein, the plaintiff, who was the wife of George Bollinger, was bound to show a title in herself good against her husband's creditors to entitle her to recover; and 3. Whether in the absence of proof to the contrary the laws of a sister state were to be presumed to be the same as

our own, upon any question material to the rights of the parties.

Upon these questions the judgment appealed from was reversed, and a new venire awarded. A new trial has now been had. The plaintiff submitted to the jury the facts upon which she claimed title to the goods sold, and, under the instructions of the learned judge of the court below, these facts have been found insufficient to vest in her a title good against her husband's creditors. The important questions now raised are over the correctness of the instructions complained of, and are presented by the eighth and ninth assignments of

error.

It appears that by the statutes of Maryland a married woman may acquire property by purchase, and, when so acquired, it is not liable for her husband's debts. She is authorized to give notes, but only when her husband joins in their execution. She may be sued jointly with her husband on such notes, and the judgments obtained against them "shall be liens on the property of the defendants, and may be collected by execution or attachment in the same manner as if the defendants were not husband and wife." In 1886 and part of 1887 Bollinger and wife lived in Maryland. In October, 1887, the personal property of George Bollinger was sold by the sheriff of Carroll county. Eliza Jane Bollinger became a purchaser of property at this sale, amounting to seven hundred and forty-seven dollars and forty-five cents, under an arrangement that she was to pay for the same by giving her note, executed in accordance with the laws of Maryland, by herself and her husband, with Thomas J. Gorsuch and Jacob Bollinger as sureties. The husband was insolvent at the time, but his wife could execute a note that would bind her own property, only by his joining her in its execution. The sureties agreed with Mrs. Bollinger and the payee of the note that if she was not able to pay the note at its maturity they would pay it for her and take a bill of sale of the 251 property. When the note fell due she was able to pay but a small part of the money, and Mr. Gorsuch lent her the balance necessary to pay the note, and took a bill of sale as his security. This property, or portions of it, so bought and paid for, was levied on in Pennsylvania, by Gallagher at the suit of Johns, as the property of George Dollinger, and sold. Mrs. Bollinger gave notice of her claim,