linquent children under the age of eighteen years, and its judgments and decrees are operative until "the child reaches the age of twenty-one years." It is also provided by

that act that:

"All orders, judgments, and decrees 80 made and entered by the court shall be under its control, and may be modified, amended, or recalled at any time until the child reaches the age of twenty-one years."

The law, in almost every sentence, indicates that it was the intention of the lawmaking power to place the custody and control of juvenile delinquents entirely under the jurisdiction [561] of the juvenile courts of this state until such time as they may be legally discharged by those courts, or by this court on appeal, as provided by section 11 of said chapter 54. If, for any cause, therefore, said Fern should no longer have been held in custody as a delinquent child, she, or any one in interest asking in her behalf, could have made application to the juvenile court for a modification of the judgment in which her status was fixed and the right of her custody determined, and that court could then have ordered a hearing upon such application, and have modified its former order or judgment in accordance with the facts. If, upon such a hearing, said court had refused to act in accordance with the facts, or had deprived the "parent, custodian or guardian" (perhaps this would have included her husband, if she had one) of any right, an appeal could have been taken to this court from such order as provided in said section 11. There is ample opportunity given in the act to all interested persons to apply to the juvenile court for the modification or amendment of any order or judgment, and ample power vested in that court to make any change that may seem expedient, proper, or necessary at any time to the end that the rights of all delinquents, as well as those of society, may be safeguarded and enforced without having recourse to habeas corpus proceedings.

What has been said, in a measure at least, also answers the contention that the juvenile court lost jurisdiction over the person of said Fern by the suspension of the sentence whereby she was ordered to be committed to the Industrial School. The act provides that the juvenile court may order that the "juvenile be committed to the State Industrial School." It also provides that the court may commit the child to the care of a probation officer, allowing it to remain in its own home subject to the visitation of the probation officer, or such child to report to the court or probation officer as often as may be required, and subject to be returned to the court for further proceedings whenever such action may appear necessary. Further, the court may order that "the juvenile be disposed of in

any other way, except to [562] commit it to jail or prison, that may, in the discretion and judgment of the court, under all the circumstances, be for the best interests of the child, to the end that its wayward tendencies shall be corrected and the child be saved to useful citizenship."

We thus have an act which practically confers parental powers and duties upon the juvenile court. How can another court thus be called on to review every act of the juvenile court which may in some way and by some parents or guardians be considered inimical to the delinquent? Moreover, how can a law be framed so as to define and provide for every act the court shall take or order that it shall or may make respecting the care, custody, control, or conduct of all delinquent children? To attempt this would be as impossible as it is impractical. It seems to us that by suspending the supposed sentence the court did no more than if it had in the first instance committed Fern to the custody of the probation officer, and had required her to report to the court from time to time, and had thereafter, upon application of such officer, modified the original order or judgment by ordering her committed to the Industrial School. The only difference is that the court made the order of commitment upon the first hearing, and then conditionally suspended its operation, and, after the probation officer made application to the court in which he alleged that Fern had violated the conditions imposed by the court upon which sentence was suspended, then ordered that she be committed. The proceeding may have been somewhat irregular, but, under the provisions of the law, it was not void.

It is, however, also contended that the court exceeded its power by acting without again giving notice to the mother, etc., and in not again giving all concerned a hearing before modifying the order of suspension of sentence. Let us assume that it would have been proper and better to have notified the mother of the officer's application and to have given her, as well as Fern, an opportunity to be heard; yet the failure to do that did not affect the jurisdiction of the court. The juvenile court, after the original notice, always retained jurisdiction of Fern, and, in view that it had found that the mother was an unfit person to have custody and control [563] of her, and had thus substituted itself as her custodian, under the law (Mill v. Brown, 31 Utah 473, 88 Pac. 609, 120 Am. St. Rep. 935), we cannot see how the court exceeded its power or ju risdiction. The mother did not dispute the court's findings respecting her unfitness, nor did she appeal from that decision, as she might have done. She, and all others, are therefore bound thereby until modified or vacated. But the order or judgment suspending

sentence was, and continued to be, subject to modification and amendment to the same extent as any other orders made by the juvenile court. If, therefore, there is any good reason why the order of suspension and of commitment should be modified or amended in any way, the application should be made to the juvenile court, and that court should be given an opportunity to correct its mistakes, if any have been made. That is manifestly the purpose of the law. If, therefore, an application, by the probation officer or otherwise, is made for a modification, suspension, or change of any order or judgment affecting the custody, control, or conduct of a juvenile delinquent, and although such juvenile is constructively in the custody of such court, yet we think the court should require both the juvenile and those who may be interested in his welfare to be notified of the application, and, if a hearing is demanded, that one should be given before the modifi'cation, etc., is made; but the failure to do that is not jurisdictional. At most, it is merely an irregularity which cannot be reviewed on habeas corpus proceedings. While it is true that the act provides "the court may hear evidence in the absence of said ju,venile," and, no doubt, in many instances it may be necessary to do so, yet it were better if it can be done that the children, especially those over the age of ten years, were permitted to be present and to be heard in their own defense respecting their custody, conduct, and control. The parents or guardian should also be permitted to be present at any hearing affecting the change of custody of the child.

For the reasons stated, therefore, we are clearly of the opinion that the judgment of the district court should be affirmed. Such is the order.

In the reported case it appears that a child found to be delinquent was sentenced to an industrial school by an order of the juvenile court, the sentence being suspended, however, during the good behavior of the child. Afterwards the probation officer made an applica tion to the juvenile court in which he alleged that the child had violated the condition imposed by the court on which the sentence was suspended, and the court then ordered that she should be committed to the industrial school. It is held that the want of notice to the mother of the application of the officer did not affect the jurisdiction of the juvenile court as the statute expressly provides that the orders and judgments of the juvenile court relating to delinquent children shall be under the control of the court until the child

Samuel A. Besson for appellants. Rudolph Schroeder and John D. Pierson for respondent.

[167] WALKER, Ch.-This was an action in the Hudson County Circuit Court upon a mechanics' lien claim by a materialman who was not the contractor.

First. A building and the land whereon it stands are liable to the contractor alone when the contract and specifications accompanying the same are filed in the office of the clerk of

the county. Mechanics' Lien Act, Comp. Stat. p. 3291, § 2. In this case the contract, but not the specifications, was filed. The plaintiff, therefore, had standing to bring her suit and acquire a special lien against the building and land. Nor was this right

at all interfered with by the subsequent filing of an "addenda" to the contract which altered the unfiled specifications.

[168] Second. It was urged in defence of Mrs. Mial that she did not have such an estate in the lands as would support the judgment. A man named Hankins died seized of the property and by his will devised the remainder to her after another's enjoyment of it for life. The estate of Mrs. Mial was a legal estate. And the lien given by the act extends to legal estates and interests. Dalrymple v. Ramsey, 45 N. J. Eq. 494, 18 Atl. 105. By section 16 it is expressly provided that the claim shall contain the name of the owner of the land or of the estate therein on which the lien is sought. Mrs. Mial's estate was one in remainder, as remarked. Besides, she had an agreement with the owner of the life estate regarding the property, in which the latter appears to have conveyed that right to her, and under which she, Mrs. Mial, was in possession and exercising acts of ownership. This estate, if it did not merge into the remainder-a question not arguedwas a legal estate, and subject to lien under the act. If it merged into the remainder the defendant's estate was one of fee-simple absolute, and, of course, subject to lien. If it did not merge both it and the estate in remainder were subject to lien and sale.

Third. The remaining question is as to whether a lien claim suit may be maintained in our state for the transportation and delivery of materials for the erection and construction of a building. In deciding this question in the trial court, Judge Speer, in his opinion, among other things, said:

"After a careful consideration of the textbooks, the cases decided elsewhere than in New Jersey, and the arguments of counsel, I have come to the conclusion that a lien should be allowed for the charge of transportation of the materials to be used in the construction of the building.

"Section 1 of the statute, under which this claim falls, provides 'for the payment of any debt contracted and owing to any person for labor performed or materials furnished for the erection and construction' of a building. It is perfectly manifest that this claim is not for 'materials furnished for the erection and construction of a building,' and that if sustainable at all it must be 'for labor performed for the erection and construction of the building.'

[169] "The statute is remedial in its nature and must by its terms receive a liberal construction. It is designed for the protection of a needy and most meritorious class of persons and should receive such construction as will further the benign purposes which the legislature had in view in its passage. Looking first to the language itself employed by the legislature, we observe that the lien will

lie for labor performed for the erection and construction of a building.' The labor need not necessarily enter into the erection or construction, it is sufficient if it be for the erection and construction. The construction contended for by defendant would oust the hod-carrier from the protection of the act, for ordinarily, he merely carries the material from the street, where it is mixed to the scaffold where the masons are employed. It would also exclude the architect, and yet Mutual Ben. L. Ins. Co. v. Rowand, 26 N. J. Eq. 389, decides that he is entitled to a lien under our statute. When a man furnishes materials he is nominally being paid for the materials, as materials, and not for the labor that went into them, as labor. He charges so much for materials, and, if unpaid, his lien claim is not nominally for labor performed in the erection and construction of the building, but for materials furnished for the erection and construction of the building. Can anyone doubt, however, that, in substance, the lien is being maintained for labor. When the manufacturer fixes his price at so much 'delivered at the building' does anyone doubt that the price includes an allowance for cartage. In the case at bar it is sought to subject the building to a lien for labor performed in the erection and construction of the building because, had the transportation charges been included in the price of the goods, there could have been no doubt of the right to a lien. I am clear that such service constitutes labor performed for the erection and construction of a building.

"This is the view enunciated in 27 Cyc. 44, where the following language is used: 'A lien is usually allowed for transportation of the materials to be used in the construction of a building.'

"This is the view supported by the following cases: McClain v. Hutton, 131 Cal. 1132, 61 Pac. 273, 63 Pac. 182, 622; [170] Fowler v. Pompelly (Ky.) 76 S. W. 173; McKeen v. Haseltine, 46 Minn. 426, 49 N. W. 195; Hill v. Newman, 38 Pa. St. 151, 80 Am. Dec. 473, and many others.

"The only openly antagonistic decision that I have found is Webster v. Real Estate Imp. Co. 140 Mass. 526, 6 N. E. 71. I cannot adopt the reasoning used in that case. It is against the great weight of authority. The reasons upon which it rests would oust a hod-carrier and an architect of a lien.

"No other court has followed it, and there were circumstances which would seem to vindicate the decision upon the ground that the real ratio decidendi was that the materials carted were not furnished for the building, or not to be used in its erection and construction."

With reference to the point last considered our construction of the statute coincides with that of the learned trial judge in the court

below; and, for the reasons given by him, as well as those firstly and secondly hereinabove expressed, the judgment under review in this case should be affirmed.

For affirmance: The Chancellor, Chief Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Bogert, Vredenburgh, Congdon, White, Heppenheimer, JJ.—13.

For reversal: None.

NOTE.

Right to Mechanic's Lien for Transportation of Materials to Be Used in Connection with Improvement.

General Rule.

Though the subject is governed wholly by statute, one who transports materials to be used in connection with an improvement is ordinarily allowed a mechanic's lien for his services. McClain v. Hutton, 131 Cal. 132, 61 Pac. 273, 63 Pac. 182; Tabor v. Armstrong, 9 Colo. 285, 12 Pac. 157; Hill v. Twin Falls Salmon River Land, etc. Co. 22 Idaho 274, 125 Pac. 204; McElwaine v. Hosey, 135 Ind. 481, 35 N. E. 272; Page v. Grant, 127 Ia. 249, 103 N. W. 124; Fowler v. Pompelly, 76 S. W. 173, 25 Ky. L. Rep. 615; McKeen v. Haseltine, 46 Minn. 426, 49 N. W. 195; Price v. Merritt, 55 Mo. App. 640; Tizzard v. Hughes, 3 Phila. 261, 15 Leg. Int. 357; Hill v. Newman, 38 Pa. St. 151, 80 Am. Dec. 473; Holeman v. The Redemptorist Fathers. 4 Pa. Co. Ct 233; Kehoe v. Hansen, 8 S. D. 198, 65 N. W. 1075, 59 Am. St. Rep. 759; Brace, etc. Mill Co. v. Burbank, 87 Wash. 356, 151 Pac. 803; Barker, etc. Lumber Co. v. Marathon Paper Mills Co. 146 Wis. 12, 130 N. W. 866, 36 L.R.A. (N.S.) 875. See also Landreth Machinery Co. v. Roney, 185 Mo. App. 474, 171 S. W. 681; Eccleston v. Hetting, 17 Mont. 88, 42 Pac. 105; Upson v. United Engineering, etc. Co. 72 Misc. 541, 130 N. Y. S. 726. And see the reported case. Compare Adams v. Burbank, 103 Cal. 646, 37 Pac. 640; Wilson v. Nugent, 125 Cal. 280, 57 Pac. 1008; Webster v. Real Estate Imp. Co. 140 Mass. 526, 6 N. E. 71; Farmer v. St. Croix Power Co. 117 Wis. 76, 93 N. W. 830, 98 Am. St. Rep. 914. In Hill v. Twin Falls Salmon River Land, etc. Co. supra, the court applied a statute giving a lien to every person performing labor on a structure. A person who

hauled cement to a dam site was held to be within the statute. The court said: "So, in the present case the labor and services of the respondents became a part of the construction of the dam to the same extent as the labor of any other individuals and gave the respondents the same right to a lien. The respondents hauled the cement to the place of use for the purpose of use, and it was accepted

by the appellant and so used in the construction and as a part of the construction the same as any other material or any other labor contributing to the erection and improvement of said property. It is a wellrecognized principle that a materialman who makes a contract for the delivery of material to be used, and which is actually used in the construction of an improvement, may include in a claim of lien not only the value of the material but the cost of delivery to the place of use, and this being the general rule, there can be no reason why, when the labor is done and the material furnished by different persons, each person should not be entitled to a lien. The respondents knew where the cement was to be used, and their labors were in delivering it for that specific use and at the place and for the purpose for which the services were rendered. There certainly can be no reason why any class or kind of labor, and it matters not what it is, which is intended to aid and enhance the construction of any particular improvement, and is received and used in such improvement, should not be and is not entitled to a lien upon such improved property under the statute of this state."

The leading case which denies a lien for the transportation of materials to be used in connection with an improvement, is Webster v. Real Estate Imp. Co. 140 Mass. 526, 6 N. E. 71. The statute therein involved gave a lien to any person to whom a debt was due for labor performed in the erection, alteration or repair of a building. It was held not to apply to a claimant who hauled sand and lumber. The court gave the reason for its decision as follows: "The petitioner does not allege that he performed any labor upon material which became part of the structure, so as to change its shape or character, in order to adapt it to the building. He did nothing with the sand, to make it fit and proper to enter into the construction of any part of the house, nor did he perform any labor by which the lumber was fitted and adapted to any section of the structure. What he did was to draw the sand to these premises, so that the contractor, if he saw fit, with other material could make it into mortar, and use it in the construction of the building. So with the lumber; when delivered, the contractor could do with it as he pleased. He could sell it, as his assignee in insolvency afterwards did as to a part of it, or he could use the sand in making mortar, and then sell it, as was done by his assignee as to a portion thereof, or he could employ them in the erection of the house. We think this labor of the petitioner does not come within the terms of the statute; that it was not connected with the building of the structure; and that it was too remote to enable him to establish