money came into his hands, appellant served upon said sheriff an express, distinct, and formal demand for the same, claiming and designating the said money as exempt and reserved to him as the head of a family; that these notices were in writing, and their service was admitted; that the sheriff refused to pay over said money to the appellant, and in making return upon his writs of the collection and payment thereof to the execution creditors recites that prior to and before receiving said money Luther Wilson, defendant (appellant), served written notice upon him, claiming the same as his property, and exempt from execution, but that he paid out. the money in pursuance of the writs after taking indemnity bonds, etc. There was introduced in evidence by the appellees, in support of their plea of res judicata, the record of a former suit between these same parties, in which a general demurrer to the complaint had been sustained, and, appellant refusing to amend, judgment had been entered in favor of appellees, which, on appeal, was affirmed by the supreme court. As against the appellant's right to recover, and in support of the judgment rendered in the court below, counsel for appellees urge the following propositions: First, that the former action was identical with this and for the same subject-matter, and that the judgment therein rendered was a final and conclusive adjudication of the matters involved in this case; second, that the property insured was real estate, and not exempt, and that the money obtained from the adjustment for its destruction should therefore, for the purposes of this case, also be treated as realty, and not be exempt; third, that the appellant appeared in defense of the original garnishment proceedings against the insurance companies, claiming the money in controversy, and should have appealed from, or taken steps to set aside, the judgments there entered against the garnishees; fourth, that it was the duty of the garnishees to have answered and claimed appellant's exemption, if he was entitled to any; fifth, that the provision of the law (Rev. Stats., par. 502) authorizing the recovery of money, with twenty-five per cent damages and ten per cent per month interest, from a sheriff into whose hands money has come by virtue of his office, and who neglects or refuses on demand to pay over the same to the party entitled thereto, is inapplicable to the case at bar.

We will consider these propositions in their order. Whether a final judgment for the defendant, rendered on a demurrer to the complaint, can be pleaded in bar of a subsequent action between the same parties depends, first, on whether the demurrer went to the merits of the action; and second, whether the cause of action is the same. If either of these conditions be wanting, the judgment on demurrer does not bar another action. The demurrer in the original suit was on the ground that the complaint did not state facts sufficient to constitute a cause of action, and therefore went to the merits. The complaint in the present is substantially the same as in the former action, with the exception that in this case it is averred that at the time when the cause of action accrued appellant was the head of a family in the county of Yavapai, territory of AriThis is a material averment, and its absence from the first complaint is probably the ground upon which the demurrer was sustained. The causes of action are therefore not the same. The former adjudication determined no more than that the pleading, as presented, was insufficient; that the facts therein stated did not constitute a cause of action; not that the appellant had no cause of action. Therefore, we say, both upon reason and authority, that the appellant having failed on demurrer in his first action from the omission of an essential allegation in his complaint, which is fully supplied in the second suit, the judgment in the first suit is no bar to the second, although the respective actions were instituted to enforce the same rights. State v. Cornell, 51 Neb. 553, 71 N. W. 300; Moore v. Dunn, 41 Ohio St. 62; Stowell v. Chamberlain, 60 N. Y. 272; Terry v. Hammonds, 47 Cal. 32.

zona.

Upon the second proposition urged by appellees we consider it wholly immaterial whether the building was real estate or not. When it was destroyed by fire, the insurance claim and the insurance money became personal property. It is true that courts of equity sometimes treat money as standing in lieu of real estate, but the principles upon which this is done are not at all applicable to this case. In the rules prescribed for the construction of the statutes of the territory, the words "personal property" are defined to include money, goods, chattels, things in action, and evidences of debt. Rev. Stats., par. 2932. The third and fourth grounds relied upon to sustain the judgment may be treated together. It is the well-settled

policy of the courts to liberally construe those humane and beneficent provisions of the law exempting certain property from execution for the payment of debts. The state has an interest in protecting families, and especially helpless children, against pauperism, and securing to them the means of reasonable comfort and education. The personal property exempt to every family by paragraph 1956 of the Revised Statutes can be claimed and designated at any time prior to its sale or conversion by the officer holding the execution. Any other construction would tend to defeat the beneficent policy of the statute. While the appellant's exemption rights might perhaps have been successfully maintained by appeal or otherwise in the garnishment proceeding, to which he was not a party, and while it was the privilege, and possibly the duty, of the garnishees to have set up by answer that the property was exempt, if they had knowledge of the fact, the appellant's failure to obtain the benefit of either course was not conclusive of his rights. There was still reserved to him the privilege of claiming and designating the exemption of the insurance money so long as it was yet in the hands of either the garnishees or the sheriff, and upon demand being properly made, as in the case at bar, it was the duty of the officer to have proceeded in accordance with the provisions of title 27. His failure to do so was at his peril. The undisputed evidence in this case shows that at the time when the sum of $529.46 was in the hands of Lowry, as sheriff, under the process, and the demand was made therefor by Wilson, the latter was the head of a family and entitled to said money as his exemption. The peremptory refusal of the sheriff to pay the same to him was a violation of his official duty. It has been repeatedly held that the sureties upon the official bond of a sheriff, conditioned for the faithful performance of the duties of his office, are liable for his acts in seizing upon a writ of attachment property of the debtor which is exempt and refusing to release it upon demand of the debtor. The act, although unlawful, is one done by the sheriff under color and by virtue of his office, and constitutes a breach of the condition of the bond. Hursey v. Marty, 61 Minn. 430, 63 N. W. 1090; State v. Jennings, 4 Ohio St. 418.

Upon the final proposition we quite agree with counsel for appellees that the provisions of paragraph 502 of the Revised

Statutes have no application to the case at bar, and that the appellant could not, in this action, recover the penalties therein provided. We hold, however, that the complaint states a good cause of action for a recovery against the appellees to the extent of $529.46 and interest for the breach of the condition of the official bond, and that under the law and the evidence a judgment for that amount should have been rendered by the lower court. The judgment will be reversed and the cause remanded, with directions to enter judgment in appellant's favor for the sum of $529.46, with interest from February 8, 1894, at the rate of seven per cent per annum, and for costs of suit.

Street, C. J., Sloan, J., and Doan, J., concur.

[Civil No. 608. Filed April 16, 1898.]

[52 Pac. 1118.]

J. E. GATES, Plaintiff and Appellant, v. R. H. FREDERICKS et al., Defendants and Appellees.

1. MECHANICS' LIENS-PRINCIPAL AND AGENT EVIDENCE OF AGENCYEXCEPTIONS-REV. STATS. ARIZ. 1887, PARS. 2258 ET SEQ. and Par. 2260, CITED AND CONSTRUED.-Agency in the matter of a contract for material and labor so as to bind the premises upon which it is placed under the Mechanic's Lien Act (par. 2258 et seq., supra) must be shown to exist as is required in other cases of agency, with the modification, however, which the statute (par. 2280, supra) 'makes,— to wit, that contractors, subcontractors, architects, and builders shall be the agents of the particular people for whom they act; and that the persons who have the charge or control of mines, mining claims, canals, etc., shall be regarded as the agents of the owners in and about the particular premises.

2. SAME LANDLORD AND TENANT-PRINCIPAL AND AGENT-LESSEE NOT AGENT FOR LESSOR SO AS TO BIND LESSOR'S ESTATE FOR REPAIRS ORDERED BY LESSEE.-There is no statute nor principle of law which makes a leaseholder the agent of his lessor to hold the lessor or his estate in the property responsible under the Mechanic's Lien Act for material or labor furnished the leaseholder.

3. SAME-SAME-SAME-EVIDENCE OF AGENCY-INSUFFICIENT TO BIND LESSOR'S ESTATE. Where lessees of a building spoke to appellant,

a contractor, about some proposed repairs thereon, and said that they intended to speak to the owners of the building about it, and that afterwards said lessees told him he might go ahead and have the work done; that the lessors had said that the lessees would be allowed credit on their rent, such facts are insufficient to constitute the lessees agents of the lessor for the purpose of binding the lessor's estate for such repairs under the Mechanic's Lien Act, particularly where the owners testify that they had never authorized the lessees to have the work done.

4. SAME-SAME-LABOR ON PERSONAL PROPERTY OF LESSEES NOT CHARGEABLE AGAINST ESTATE OF LESSOR-REV. STATS. ARIZ. 1887, PAR. 2258, CITED AND CONSTRUED.-Work done by a contractor upon a bar, back bar, and screen which are the personal property of the lessees of a building cannot be charged against the real estate or the estate of the lessor in the property, under paragraph 2258, supra, which provides that any person who may labor or furnish material to erect any house or improvement or to alter or repair any building or improvement whatever shall have a lien on such house, building, fixtures, or improvement, and shall also have a lien on the lot or lots of land necessarily connected therewith to secure the payment therefor.

APPEAL from a judgment of the District Court of the Fourth Judicial District in and for the County of Yavapai. John J. Hawkins, Judge. Affirmed.

The facts are stated in the opinion.

T. W. Johnston, for Appellant.

The following authorities are cited on the proposition that appellant is entitled to a lien on this property: Eaman v. Bashford, 4 Ariz. 199, 37 Pac. 25; Collins v. Cowan, 52 Wis. 634; Hill v. Gill, 40 Minn. 441, 42 N. W. 294; Paulsen v. Menske, 126 Ill. 72, 18 N. E. 275; Cady v. Case, 11 Wash. 124, 39 Pac. 375; Kremer v. Walton, 11 Wash. 120, 39 Pac. 374; Reilly v. Stephenson, 62 Mich. 509; Church v. Garrison, 75 Cal. 199, 16 Pac. 885; Moore v. Jackson, 49 Cal. 109; Otis v. Dodd, 90 N. Y. 336.

Herndon & Norris, for Appellees.

The case of Johnson v. Dewey, 36 Cal. 623, is very strong against the position taken by appellant. In that case S. was the tenant of D., and desired, for his own benefit, that the house should be raised and improved, and was willing to