Opinion of the Court by

The mechanic’s lien asserted by the appellant as a sub-contractor is unavailing for want of the written notice required by the statute. And there is no proof of the alleged promise.

Nor does it sufficiently appear that after payments to the under*496takers and. most of the subordinates, any surplus demandable for work or material remains unappropriated.

The $1,000 charged by the petition to have been a loan, must be adjudged to have been a payment. Positive testimony and intrinsic probability authorize no other conclusion.

Wherefore, the judgment dismissing the petition is affirmed.