nected must fall with them. O'Brien v. Krenz, 36 Minn. 136, 30 N. W. Rep. 458. Applying this rule to this case, we think the whole statute must fall. Some of these invalid provisions could doubtless be eliminated from the act, and the balance of it stand as the expression of the legislative will; but others are so intimately connected with the essential plan and scope of the act that there would not be enough left of it to make it capable of being carried into effect according to the legislative intent. The great object of the act manifestly was to give greater rights and fuller protection to laborers and materialmen then they had under the old law, and the provisions which we hold invalid were evidently those which the legislature especially designed to effect that purpose, and which constituted the chief inducement to pass the act. It is hardly possible to conceive that, had the legislature supposed that these provisions were invalid, they would have enacted the remainder of the act as a substitute for the old law. The whole act must therefore fall, leaving Gen. St. 1878, c. 90, still in full force. We are aware that a court ought not to declare invalid a solemn act of a co-ordinate branch of the government, except in a very clear case; but this seems to us to be such a case. Were any serious evils likely to result from holding this law invalid we might hesitate. But there has been so much doubt, both as to the meaning and the validity of this act, that we apprehend almost every careful lawyer has taken the precaution, where the necessary facts existed, to bring all proceedings to enforce mechanic's liens within the requirements of the old law as well as the new. Again, even if the act could be sustained, it is so imperfect and obscure in many respects that much contention and litigation over its construction would inevitably follow, a state of things which would be especially disastrous to the very class which the law was intended to benefit. Therefore, looking merely to practical results, it is better for all parties that they be left under the provisions of the old law, and, if it is defective in any particular, the legislature can amend.

The

The result is that in the case of Bohn Manufg Co. v. Schmidt and Jameson the claim of lien was seasonably filed, and the demurrer to the complaint was properly overruled. In the case of Meyer v. Berlandi the claim for a lien first filed was insufficient; and, as the right to a lien is dependent upon the filing of a proper statement, deficiencies cannot be helped out by allegations in the complaint of facts which should be contained in the statement filed. Treating the proposed amendment to the complaint as a supplemental pleading, setting up the filing of another statement for a lien subsequently to the commencement of the action, the amendment was properly disallowed. filing of the statement operates as the creation of a lien, and until this is done an action to enforce the lien cannot be maintained. Rugg v. Hoover, 28 Minn. 404, 10 N. W. Rep. 473. If an original complaint is wholly defective, and there are no grounds for proceeding upon it, it cannot be sustained by filing a supplemental one founded on matters which have subsequently taken place. A supplemental complaint can only enlarge or change the kind of relief to which a party may be entitled, where a cause of action exists at the time of the commencement of the action. Lowry v. Harris, 12 Minn. 255, (Gil. 166.) The judgment of dismissal in this case must also be affirmed. Order and judgment affirmed.

BRAY v. CHURCH OF ST. BRANDON.

(Supreme Court of Minnesota. November 16, 1888.) JUDGMENT-BY DEFAULT-OPENING AND SETTING ASIDE.

An order setting aside a judgment by default, and allowing the defendant corporation to defend, sustained, although the default was occasioned by negligence, or intentional omission of duty, on the part of the agent upon whom the summons was served.

(Syllabus by the Court.)

Appeal from district court, Sibley county; EDSON, Judge.

Action to recover for services rendered defendant by plaintiff's intestate during his life-time. From an order setting aside a judgment by default, and allowing defendant to answer, plaintiff appeals. Defendant offered affidavits, at the hearing of the motion, to the effect that defendant's treasurer, upon whom the summons was served, was a creditor of the insolvent estate of plaintiff's intestate, and interested in obtaining the judgment, and that he had never informed the other officers of defendant of the commencement of this action, and had made no effort to defend; that the default was discovered October 17, 1888, and counsel retained, and steps taken to open the judgment October 25, 1888. The proposed answer alleged payment in full of plaintiff's claim.

Kipp & Preble, for appellant. W. H. Leeman and Cadwell & Parker, for respondent.

DICKINSON, J. This action having been commenced by the service of the summons upon the treasurer of the defendant, a religious corporation, the defendant made no appearance, and judgment was entered by default. Upon a motion, based upon affidavits going to excuse the default, the court set aside the judgment, and allowed an answer to be interposed upon the payment of costs. This appeal is from that order. The case justified the discretionary order appealed from. The application was seasonably made. A good defense was shown. The person upon whom the summons was served did not inform any other member of the corporation of that fact. Circumstances were shown indicating that he would be personally benefited by the plaintiff's recovery in this action. It was within the discretionary power of the court to relieve the defendant from the consequences of such negligence or intentional omission of duty on the part of one of its officers. There is no reason to suppose that the plaintiff has suffered any prejudice except that he is required to try the action. Order affirmed.

ENGEL v. BREITKREITZ et al.

(Supreme Court of Minnesota. November 20, 1888.)

MASTER AND SERVANT-NEGLIGENCE OF MASTER.

Evidence in the case examined, in connection with the charge of the court. Held, that there was no error in the charge, and that the evidence justified the verdict.

(Syllabus by the Court.)

Appeal from district court, Sibley county; EDSON, Judge.

Action to recover damages for injuries alleged to have been caused by the negligence of defendants. William Engel, plaintiff, was employed by defendants, William Breitkreitz et al., as an assistant in operating a steam threshing-machine, in connection with which was a heavy "straw-carrier," suspended some distance from the ground by a rope running from the machine to an adjacent straw-stack. The rope broke as plaintiff was passing beneath, and the "carrier" fell upon him, causing the injuries complained of. On the trial evidence was offered to show that defendants had used proper care in the selection of the rope, and that plaintiff had been cautioned to "keep out from under the carrier." In summing up to the jury, the court charged that the preponderance of proof is upon the defendants to show that, by fair testimony, the plaintiff was under the machine when he ought not to be. Defendants had a verdict. From an order denying a new trial plaintiff appeals. Kipp & Preble, for appellant. W. H. Leeman, for respondents.

PER CURIAM. Adopting the most favorable view possible of plaintiff's case, as presented by the transcript herein, he cannot complain of the manner

in which the main question, that of defendants' negligence, was submitted for the determination of the jury. It was a question of fact, to be passed upon under proper instructions from the court. It was fairly submitted to the jurors, and by them decided adversely to plaintiff. As has been held repeatedly, this court cannot interfere. Order refusing a new trial affirmed.

PIERRO v. ST. PAUL & N. P. RY. Co.

(Supreme Court of Minnesota. November 23, 1888.)

1. JUDGMENT-RES ADJUDICATA-USE AND OCCUPATION-TRESPASS.

Former decision in this case (37 Minn. 314, 34 N. W Rep. 38) followed, holding that a former recovery for use and occupation, in an action to recover the possession of real property, is a bar to a subsequent action for injuries to the estate during the same period of occupancy.

For a single and completed trespass upon and injury to an entire tract of land several actions for damages cannot be maintained. A recovery of damages in respect to a part of the land will bar a subsequent recovery in respect to another part of the tract, the cause of action being entire.

3. SAME-IDENTITY OF SUBJECT-MATTER OF ACTION.

An action commenced in the state district court, in respect to lands described in the complaint as being in "Bottineau's addition to Minneapolis, "was removed to the circuit court of the United States. The certified complaint in that court described the lands as being in "Bottinen's addition to Minneapolis." The record in the latter court held prima facie as applicable to the land in question in Bottineau's addition.

(Syllabus by the Court.)

Appeal from district court, Hennepin county; HICKS, Judge.

Action by Michael Pierro to recover damages for the alleged wrongful entry upon his land by the St. Paul & Northern Pacific Railway Company, and the construction by defendant of a railroad thereon, and for damages to crops on adjacent land of plaintiff. Upon the trial defendant offered in evidence, as a bar to the action, the judgment roll in a former action of ejectment by plaintiff against defendant railway company in the United States circuit court for the district of Minnesota, which showed an adjudication as to defendant's right of way through plaintiff's land. This was excluded, on objection of plaintiff, as irrelevant, incompetent, and immaterial. Plaintiff had a verdict against defendant for $2,500, and appealed from an order granting a new trial, unless he should consent to a reduction of the verdict to $1,500. In the supreme court the order was affirmed, (see 34 N. W. Rep. 38,) and, after a new trial and verdict for defendant, plaintiff has appealed from an order refusing another new trial.

Jordan, Penney & Hammond, for appellant. D. A. Secombe, for respondent.

DICKINSON, J. The decision upon a former appeal in this action is reported in 37 Minn. 314, 34 N. W. Rep. 38. After a new trial and a verdict for the defendant, the plaintiff has appealed from an order refusing another new trial. The cause of action here asserted is trespass upon and injury to a strip of land 62 feet in width, consisting of the westerly 22 feet of several lots in Bottineau's second addition to Minneapolis, with the adjacent 40 feet, comprising that half of Main street upon which such lots abut. The street had not been opened to public travel, as is alleged, and the plaintiff had inclosed and was using it for private purposes. Upon the trial there was offered and received in evidence the record of a judgment of the circuit court of the United States in an action by this plaintiff against this defendant corporation, awarding to the plaintiff a recovery of $20 damages, with costs. That action had been commenced in the district court of the state, but was removed to the federal court. The cause of action appearing in the copy of the complaint in the circuit court was the entry of the defendant upon, and its wrongful pos

session of, the westerly 22 feet of the plaintiff's lots, numbered and described as in the complaint in this action, except that they are there designated as being in "Bottinen's addition to Minneapolis." A recovery of possession was sought, together with the value of the use and occupation. In connection with the record from the circuit court, the defendant, in the trial of the present action, offered in evidence the complaint in that cause in the district court, in which the land was described as being in "Bottineau's addition." This evidence was properly received. The proof last referred to was sufficient to show prima facie the identity of the lots designated in the complaints in the two actions, and that the word "Bottinen" instead of "Bottineau," in the copy of the complaint sent to the circuit court, was the result of clerical

error.

In deciding the former appeal in this action (37 Minn. 314, 34 N. W. Rep. 38) it was held by the majority of the court that a recovery for the use and occupation, in an action for that purpose and for the recovery of possession of the land, was a bar to a subsequent action for injury to the estate caused during the same period of occupation. Therefore there could be no recovery in this action for the alleged damage with respect to the 22 feet which was the subject of the former action. As to the adjacent 40 feet, the result is necessarily the same. The decision above cited rests upon the identity and entirety of the causes of action alleged, the wrongful use and occupation, and the coincident injury to the property. The recovery for the use and occupation was, so far as concerns this question of estoppel, the same as though it had included damages for the injury done by the defendant while in occupation. The former recovery of damages, it is true, was only in respect to the 22 feet, but that would operate as a bar to a subsequent action to recover damages for injury to or upon the adjacent 40 feet, caused by the same tortious acts of the defendant. The trespass now complained of in respect to the whole 62 feet was identical with the entry and possession alleged in the former action as to the 22 feet. The defendant's trespass and injury upon the whole tract of land was a single and indivisible tort, for which the plaintiff's right to recover damages was entire and indivisible. The whole cause of action was complete, and the damages now sought to be recovered had fully accrued, and presumably were known, when the former action was brought. One may not split an entire, complete cause of action, and have several recoveries of damages therefor. One recovery, although it be for a part only of the entire injury is effectual as an estoppel. Thompson v. Myrick, 24 Minn. 4; Memmer v. Carey, 30 Minn. 458, 15 N. W. Rep. 877; McCaffrey v. Carter, 125 Mass. 330; Bennett v. Hood, 1 Allen, 47; Farrington v. Payne, 15 Johns. 432; Herriter v. Porter, 23 Cal. 385; Osborne v. Atkins, 6 Gray, 423. Whether the plaintiff could have maintained several actions for the recovery of the possession of several parts of the entire tract of land need not be considered. However that may be, the plaintiff was not compelled to seek to recover his damages for the wrongful acts of the defendant in any such action. He might have maintained a separate action for that purpose. But as that cause of action for damages was entire, he could not have several recoveries in respect to different portions of the tract. One recovery, in whatever form of action, would constitute a bar. This action being barred by the former recovery, the verdict for the defendants was right, and the other assignments of error upon matters not affecting this result need not be considered. Order refusing a new trial affirmed.

1. PLEADING

BRANDT v. SHEPARD et al.

(Supreme Court of Minnesota. November 23, 1888.) ANSWER-GENERAL AND SPECIAL DENIAL.

A complaint charged that the two defendants, as partners, had received certain money. The separate answer of one of the defendants contained a general denial.

It also contained, in connection with allegations of certain transaction between him individually and the plaintiff, a specific denial that "he" had received such money. This latter denial construed as not modifying the effect of the general denial. 2. SAME-ADMISSIONS IN ANSWER-EFFECT.

An admission, in an answer, of a cause of action in favor of the plaintiff, wholly different from that alleged in the complaint, does not entitle the plaintiff to a recovery under such complaint.

(Syllabus by the Court.)

Appeal from district court, Hennepin county; YOUNG, Judge.

Action by John Brandt against E. R. Shepard et al., to recover a sum of money alleged remaining in their hands after a sale of plaintiff's real estate. Upon trial the court dismissed the action, and from an order refusing a new trial plaintiff appeals.

Hooker, Little & Nunn, for appellant. J. M. Shaw and C. C. Joslyn, for respondents.

DICKINSON, J. This appeal brings up for review the propriety of the order of the court dismissing the action at the close of the plaintiff's case. The defendants were charged in the complaint as copartners; the alleged cause of action being that they, under authority from the plaintiff, sold certain real estate belonging to him, and received $10,000 as the price thereof, of which' sum they had paid over to the plaintiff only $7,648, leaving still in their hands $2,352, to recover which this action was brought. The answer of this respondent, Shepard, (upon which the case went to trial,) after putting in issue the allegations of the complaint by a general denial, alleged that he (Shepard) alone had been authorized to sell the property, for which he was to receive a stipulated commission; that he had effected a sale, which had been consummated, between the purchaser and the plaintiff,-the plaintiff receiving, as a part of the price, two mortgages for $2,500 each; that the plaintiff had paid this defendant the amount of the stipulated commission ($2,000) "by $500 in cash, and $1,500 of one of said mortgages of $2,500; that plaintiff sold said Shepard the remainder of the last aforesaid mortgage for $950; that said Shepard has paid said plaintiff therefor the sum of $648; that there remains due and owing plaintiff from said Shepard, on account of all the aforesaid transactions, the sum of $302, and no more." Immediately following the language above recited, and in the same sentence, is a specific denial by this defendant that "he" had received the $10,000 referred to in the complaint, or any sum, excepting the sum of $500. Counter-claims were set up in the answer, to which we need not particularly refer. Upon the trial of the cause the plaintiff rested, after having given evidence tending to prove the copartnership of the defendants; that authority had been given to them to sell the property; and that it had been sold. The court then dismissed the action. There was no error in this action of the court.

There was no proof that either of the defendants had received any part of the purchase price, and the answer admitted the receipt of no more than $500, which was less than the amount admitted by the complaint to have been paid by the defendants to the plaintiff. That part of the answer in the form of a general denial put in issue the alleged fact that the defendants had received the purchase price; nor was that denial qualified by the subsequent specific denial, by Shepard, that he had received such money. In determining the effect of this latter denial, it should be considered that it is made in immediate connection with the statement of transactions alleged to have been between this defendant individually and the plaintiff. We think that in view of this relation, and from the manner in which the denial is made, the court was justified in construing it as not modifying the effect of the general denial. The plaintiff was not entitled upon this complaint to recover the $302 admitted by the answer to be an indebtedness in favor of the plaintiff. According to the allegations of the answer, that was a balance of the purchase price of a part