Opinion on merits per
Greene, O. J.The appellees filed their complaint below to enforce labor liens, and after decree in their favor are brought here on appeal. Hasty reading of their complaint might impress one, that under our code system of pleading, it does not sufficiently set out the fact of indebtedness, and on this ground, it is assailed by the defendant. Evidently, it was modeled on a common law count of indebitatus assumpsit, and we do not doubt its allegations would have stood good, as such a count, at common law. Enough appears in it, we think, to support proof either of a special or implied assumpsit. A court might, in its discretion, upon motion to make such a complaint more definite and certain, allow the motion, especially if peculiar facts were shown rendering it likely that justice would- be thereby promoted. Refusal, however, would be no ground to invoke the action of *41an appellate tribunal, unless there was a plain abuse of discretion.
The facts, as we gather them from the pleadings and proofs, show labor of such a description as would entitle to liens, either under §§ 2 and 5 of the Lien Law of 1873, or §§ 19 and 23 of the Lien Law of 1877, and may be briefly stated, with sufficient fulness and precision to answer all present purposes, as follows:
Heavy excavation and grading was needed to construct that part of appellant’s road-bed, which lies between Rentonville and Newcastle. In order to accomplish the» work, the appellant, on the 22d day of June, 1877, entered into a contract with one L. D. Frank, whereby the latter was to move at agreed rates whatever earth, gravel or stone might be encountered in the course of the undertaking. Subordinate workmen were procured by Frank, under an agreement, made between him and certain Chinese, not parties to this litigation, who, by the terms of the latter agreement, and in consideration of a share in the profits of his contract with appellant, agreed to and did supply him with laborers for his enterprise. These appellees were among the laborers so supplied. Held by no special contract made with themselves, they worked by the day or half-day, and were to be paid at the rate of so much a month, according to the actual time spent in labor. Each belonged to a gang of twenty-five or thirty, superintended by an overseer or “boss,” who kept in a book a tally of their time. Lack of the time-books thus kept is one of the features in this case, and either because of that lack or from want of memory in the witnesses, or from some other cause, the days on which any particular plaintiff worked is — save in three instances — involved in impenetrable obscurity. On the testimony it perhaps sufficiently appears, that none-of the appellees were paid for any work done in November or December, and that many of them worked continuously during both months, till and including December 17th, but who, any of them, save three, were does not appear. Really, it is impossible, by any process, to pronounce upon some probably meritorious claims, because we cannot tell to whom by name the claims belong. During the months of No*42vember and December, however, up to and including the 17th day of the latter month, Horn Wah, Guom King Goi and Lee Kee, three Chinese bosses, worked for Frank, as appears from the testimony, at the rate of thirty dollars per month, for such a number of days to have earned respectively, the sums of $17.90, $32.40 and $25.60. Some of this work of theirs was done prior to the 8th day of November, the day on which the last Mechanic’s Lien Law was approved and went into effect, and the rest of it was done subsequently. An apportionment of the whole amount between the period before the approval of that act and the .period after cannot be arrived at upon the testimony unless by applying some principle of computation. No notice of lien was filed in the auditor’s office by these three or by any others of the appellees, until the 19th day of January, 1878, on which day, all of them, without exception, caused to be filed in that office notices, good and sufficient in form,' that they claimed liens upon the railroad for their work. Diligent search of the somewhat voluminous transcript in this case, and careful examination of the testimony, have assured us that the foregoing are all the facts material to our decision.
„ The Judge of the District Court seems to have been able to find an indebtedness in a sum certain, in favor of each of the appellees, but no satisfactory basis for such a finding is disclosed to us, either in the pleadings or evidence. He appears to have found further, regarding all, that they worked until and including the 17th of December. Evidence or admission to sustain this, in case of any, except the three already mentioned, is, we are convinced, entirely wanting.
From this survey of the facts, we pass to inquire as to the law, which must control our judgment. Under the Lien Act of 1873, or that of 1877, or both, the rights and remedies intended to be given are, to a great degree, alike, and the general aim of the two acts is, for the most part, so far as they deal with similar matter, the same; and yet, on a careful comparison of the two throughout, we are thoroughly satisfied that the latter is intended as a substitute for, and not in any of its provisions as a continuation of tfie former. Liens or rights accrued, *43and actions or proceedings commenced, under the old law, are fully kept alive by § 38 of the new, but the old law itself is repealed. No lien, right, action or proceeding survives because of the survivals of the old law, but rather only because in the destruction of the old it is rescued and revived by the new. Every proceeding to enforce a right, accrued under the older statute, must conform, as far as practicable, to the requirements of the younger. Sixty days after the completion of the work in hand, or in case of railway labor or material, from the last day of the month, in which the labor was done, or material furnished, was the time granted to all persons, by the law of 1873, within which to file their lien notices. Sixty days from the completion of the work or from cessation of labor thereon, is, under the law of 1877, allowed to the original contractor only, and every person save him has but thirty days. The lien claimants in any case, whose labor ended on the day the old law perished, would be obliged to file their notices under the new law, and unless they were original contractors, would have no more than the thirty days, limited therein, within which to do it.
Here the labor of appellees, prior to the 8th of November, was not done under any continuing contract to which they were privy, and which as an entirety, ran on beyond that day and was upon supervention of the new statute, recognized therein, and presented for completion, but it was a service from day to day, freely divisible, to which the new law put a full' stop. Every shovelful of excavation afterwards was lifted under the new law.
Referring now to the character of appellees’ services, and to the time when their notices were filed, we see at once that none of them were original contractors and none of them filed their notices within thirty days after the approval of the new law. Energy, therefore, to create or preserve a lien for work done prior to that date did not reside in the notices, and liens as to any such work must be denied an existence. Only the three overseers above-named have proved their claims with sufficient certainty to entitle them to judgment for labor since that date. Eor determining what the fair money value of this part of the *44entire labor of the overseers is, we think it equitable, under all the circumstances, to resort to the method of average. The whole time overspread by their unpaid work is forty-seven days, eight of which were expired before the new law became operative. Horn Wall, Gwom King Goi and Lee Kee are, therefore, entitled to liens for 39-47 of $17.90, $32.40 and $25.60, respectively. Each of them will have judgment accordingly, and the judgment of the District Court as to each of the other appellees will be reversed.
Let the three named appellees be allowed an attorney fee of one hundred dollars and their costs and disbursements in this Court and the District Court, and let this cause be remanded to the District Court for further proceedings.