by plaintiff under a contract with the Jackson Water Company, for the construction of a ditch or canal, and also for the enforcement of a mechanic's lien upon the work.

On the twenty-second day of December, 1855, the plaintiff contracted, in writing, to and with the Jackson Water Company for the construction of a certain ditch or canal in continuation of one owned by the company. By the terms of the contract, the plaintiff was entitled-after the water was let into the ditch-to collect the water rents and retain one half thereof, which was to be applied in discharge of his debt against the company for the construction of the work. It is alleged by the plaintiff that he completed the ditch within the contract time. A breach of the contract is alleged by the plaintiff, on the part of the company, by depriving plaintiff of the right to collect the water rents of the ditch after he had collected only $2,790.36, leaving unpaid for the work $14,154.17. On the twenty-eighth of February, 1857, the plaintiff filed in the office of the county recorder where the ditch is located, certain papers claiming a lien upon the ditch and its appurtenances, in pursuance of the provisions of the Mechanics' and Laborers' Lien Law. In the notice of his intention to hold a lien upon the work, it is alleged that the ditch was. constructed by plaintiff between the twenty-second of December, 1855, and the twenty-eighth of January, 1857.

Prior to the making of the contract between plaintiff and the company, the company had mortgaged the ditch to the defendant, Bayerque, to secure the payment of $50,000. While plaintiff was in progress of the work, the mortgage debt fell due, and Bayerque instituted an action to foreclose the mortgage, and subsequently obtained a decree to that effect. Plaintiff alleges that in June, 1856, he gave Bayerque notice of his contract, etc. Here is the allegation of the complaint upon which the plaintiff secks to hold Bayerque responsible for the payment of the construction of the ditch: "On the day of June A. D. 1856, the defendant Bayerque, by himself and by his agents and attorneys, in consideration that plaintiff would not abandon his said work, and would not sue defendants at that time, adopted and ratified said contract, and agreed and stipulated that plaintiff should finish the work aforesaid contracted for, and that he be paid therefor by the

receiver, Thomas B. Wade, who, it is prayed, be made a party to this suit, and who was appointed said receiver in the suit for the foreclosure of the mortgage aforesaid between the defendant Bayerque and the Jackson Water Company; and, pursuant to said stipulation, the said receiver was directed to pay plaintiff for such work, according to said contract, as expressed in the terms thereof. And the said plaintiff avers that in consideration of said satisfaction of said contract, and believing that the defendant Moss was a party to such ratification as plaintiff is informed and believes he was-the plaintiff proceeded to finish said work, and to complete the contract on his part; and plaintiff avers that it ever was the intention of defendants, Moss and Bayerque, that said contract should be carried out, and that said defendants, knowing the premises, agreed and stipulated that the same should be done.

On the seventh day of July, 1856, the ditch was sold under the decree of foreclosure, and Bayerque became the purchaser; and subsequently a sheriff's deed was duly executed and delivered to Bayerque.

Plaintiff had judgment in the court below for the amount of his demand and for the enforcement of his lien; Bayerque appealed therefrom to this court. No appeal was taken by the company.

LEVI PARSONS, for appellant.

SMITH & HARDY, for respondents.

FIELD, J., delivered the opinion of the court, TERRY, C. J., and BALDWIN, J., concurring.

It is unnecessary to pass in review the several objections raised on demurrer to the sufficiency of the complaint, and which are urged upon the attention of the court by the counsel of the appellant in a very elaborate brief, as the case can be disposed of upon its merits, independent of any question of pleading. The action is brought to recover a judgment against the Jackson Water Company and Bayerque, for work performed by the plaintiff in the construction of a ditch, under an alleged contract between him and the company made in December, 1855, and to obtain a decree enforcing a

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lien claimed for the work upon the ditch thus constructed. Other parties were made defendants, but as no judgment passed against them they may be dismissed from the consideration of the case. The action, as against the company, rests upon the alleged contract, and as against Bayerque, upon what is inaptly termed by the plaintiff its "adoption and ratification" by him. The contract purports to have been made on the part of the company by only three of its five trustees, one of that number acting as attorney in fact for the third; but whether for this reason, or for any of the reasons assigned, it was without binding obligation, it is immaterial to inquire. The company have not appealed from the judgment, and can not, therefore, raise any question as to the legality of the contract, and the defense of Bayerque rests upon independent grounds. As against the company, the judgment for damages must be affirmed. It is only necessary, then, to determine the effect of the alleged "adoption and ratification" of Bayerque, and the validity of the lien asserted upon the ditch.

It can not in strictness be said that Bayerque "adopted and ratified" the contract between the plaintiff and the company. These terms are properly applicable only to contracts made by a party acting or assuming to act for another. The latter may then adopt or ratify the act of the former, however unauthorized. To adoption and ratification there must be some relation, actual or assumed, of principal and agent. No such relation existed between the company and Bayerque; the contract between it and Ellison was not made in Bayerque's name, or for his benefit, or upon any authority from him. What the plaintiff, however, intends by these terms is this: that Bayerque assumed the obligations of the company to Ellison upon the contract, or in other words, guaranteed the performance of the contract on the part of the company. In examining, then, the evidence contained in the record, we find nothing which establishes or even tends to establish any undertaking upon which Bayerque can be personally charged. The stipulation of the solicitor in the foreclosure suit only goes to the extent of authorizing the receiver to apply one half of the net proceeds of the extension of Ellison, in pursuance of his contract with the company. It does not purport to make any new contract, or to assume any obligation on the part of

Bayerque, even had the solicitor possessed any power to do so, of which there is no pretense. The certificate of the receiver, based upon such stipulation, and the supposed authority of his appointment, acknowledging and confirming the contract, was utterly inoperative to charge Bayerque. Neither the order nor stipulation gave the least power to the receiver to execute any such acknowledgment and confirmation. And besides, the receiver testifies that neither Bayerque nor any of his agents either knew of it or assented to it. The letter of Parsons does not even purport to have been written on behalf of Bayerque, or by his direction, or with his knowledge or approbation. It purports to have been written after a consultation with T. F. Moss, who is not a party to the suit. This Moss was, it would seem, a superintendent of the affairs of Bayerque in connection with the water ditch, but that his authority went beyond an ordinary superintendence nowhere appears. No evidence was given that he possessed any power to make an original substantive contract of the character claimed by the plaintiff. The record is bare of any attempt to establish the possession of such a power.

But aside from the view of the case upon the record, there is another fatal objection to the plaintiff's recovery. The undertaking which he seeks to establish against Bayerque falls within the Statute of Frauds. It is an undertaking to perform a contract which the Jackson Water Company had made, and which it was obligatory upon the company to perform; in other words, it was an undertaking to answer for the debt, default, or miscarriage of another. By the 12th section of our Statute of Frauds, which is substantially borrowed from the 4th section of the English statute of 29 Charles II, it is essential to the validity of any such contract that it, or some note or memorandum thereof, be in writing; that it express the consideration, and that it be subscribed by the party to be charged thereby. Neither of these particulars are found in the present case. There was no agreement in writing, or any note or memorandum of any agreement, and of course it would be idle in such case to speak of the want of an express consideration or the subscription of the party. The plaintiff was bound by his contract to perform certain work for the Jackson Water Company. A promise to Bayerque to per

form this contract could furnish no consideration for a proinise by him. The consideration of the original contract could not attach to the subsequent promise. On this point the authorities are numerous and without conflict: Clay v. Walton, 9 Cal. 328, is one, and the cases cited in the opinion fully sustain the position.

In Puckett v. Bates, 4 Ala. 390, the plaintiff had agreed with one Kelly to construct a house at the usual rate of charges. While the house was in the progress of erection, Kelly left the State, and went to Louisiana. The defendant then verbally promised to pay the plaintiff if he would proceed and complete the work; and it was held the promise was collateral and within the statute, and consequently without binding effect. The consideration resting wholly in the performance by the plaintiff of his antecedent contract, did not support the promise of the defendant.

The remaining question for determination relates to the validity of the lien asserted by the plaintiff upon the ditch. The act of 1850 gave mechanic's lien only upon buildings. and wharves: Comp. Laws, 808. The act of 1853 extended the act of 1850, so as to include in its provisions bridges, ditches, flumes, or aqueducts constructed to create hydraulic power, or for mining purposes: Comp. Laws, 811. The act of 1855 repealed the act of 1850: Session Laws, 156, Sec. 12. The repeal carried with it the supplementary act of 1853, which extended the provisions of the original act. Without the original act, there was no mode of enforcing the supplementary act. The latter was so dependent upon the former as to become utterly inoperative upon the appeal. The act of 1855 gave a lien only upon buildings, wharves, and other superstructures. The same is the case with the statute of 1856. The work for which the plaintiff asserts a lien was performed between the twenty-second of December, 1855, and the first of February, 1857, and was therefore chiefly done after the act of 1856 took effect. It is immaterial, however, under which act the work was done, as both give a lien upon the same structures; neither gives a lien upon ditches in terms. The flumes constructed at different parts of the line can not change the general character of the work as an excavation; these flumes were mere connecting links of the ditch, over ravines and gulches. As a ditch, then, the general work must