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Gornell Law School Library
ATREATISE

ON THE

LIEN OF MECHANICS

AND

MATERIAL MEN,

An Pennsylvania,
WiTH THE

ACTS OF ASSEMBLY RELATING THERETO,

AND VARIOUS

FORMS,

BY

HENRY J. SERGEANT, Esa.

Sens

Second Ldition.

BY E. SPENCER MILLER.

PHILADELPHIA:

KAY & BROTHER, LAW BOOKSELLERS AND PUBLISHERS,
17 & 19 SOUTH FIFTH STREET, EAST SIDE,
FIRST STORE ABOVE CUESTNUT.

1856.
 

‘e
Untered according to the Act of Congress, in the year One Thousand Eight Hundred and
Fifty-six, by E. SPENCER MILLER, in the Clerk’s Office of the District Court for the
Eastern District of Pennsylvania.

WM. S. YOUNG, PRINTER.

 
PREFACE TO THE SECOND EDITION.

I HAVE consented to edit this volume, at the request
of the Author, and, under the assurance, that a new
edition was needed by the profession. Since the ori-
ginal treatise was published, most important changes
have been made in the subject of Mechanics’ liens,
both by legislation and decision; and it is no longer
safe to rely upon its pages, without a constant refer-
ence to the statute books, and the reports. Such a
reference has now become so burdensome, that any
one, who, with ordinary care, has collected the cases
and Acts of Assembly, under proper heads, must have
conferred a favour. I have endeavoured to do this;
and only claim the credit of a desire to be clear and
accurate.

The book has grown under my hands, as I advanced,
to a greater size than I expected. So much new
matter has been introduced, that but little of the text
of the first publication remains. It is, really, a differ-
ent treatise; not because of any desire to depart from
the plan of the first edition, but, because the subject,
iv PREFACE.

itself, has become so altered and extended, that it re-
quires a new consideration and a new arrangement.

I sincerely hope, that this volume may, not only,
be useful to the profession, but lead to system and
harmony in the decisions. The subject of which it
treats is now involved in the most deplorable confusion.
The desire so often, and so clearly expressed by the
court to encourage the mechanic to file his own claims,
by protecting him from his blunders, has led to such
loose and discordant judgment, that we are almost
without law upon many of its most important topics.
The full extent of the difficulty which has thus arisen,
can only appear, when the cases are collated.

We can see no reason why this class of citizens
should be indulged at the expense of others. Why is
the mechanic to be more favoured than other lien
creditors? The reasoning and policy of the law are
most cogent against him. His lien is statutory and
extraordinary. It is exparte; more entirely so than
that of a mortgagee, whose claim is liquidated, only
under the hand of the debtor, while this may be filed
for more than is due, It is most dangerous in its re-
lation back to a period not easily ascertained, and not
appearing of record. Such claims ought to be held
to strict construction, by every principle of justice.

But is it indulgence and protection? If mechanics
and material men knew their own interests, they
would be far from availing themselves of their so
PREFACE. Vv

called privilege. If the sums lost by the false eco-
nomy which risks the debt to save a fee could be
ascertained, they would be startled by the result. A
large proportion of all the claims filed are utterly
worthless. Only one who, representing his client be-
fore an Auditor, appointed to distribute the proceeds
of a sheriff’s sale, has seen a host of threatening liens
disappear, under the plainest requirements of the law,
can judge of the folly of such a course.

I am doing my profession no favour by these sug-
gestions. It reaps, perhaps, a larger income under the
present system, than it would, were the remarks which
we have made regarded. The mechanic pays more
to support bad claims, than he would for the filing of
good ones. But I am doing the law a service. By

, deference to false policies it has been perverted, until
titles are endangered, confusion encouraged, courts
delayed, and a system produced which is, now, about
as bad as it can be.

Since the foregoing preface was written, a letter of
some interest has been placed in my hands, containing
the result of investigation made by the writer, now
deceased, at the request of the person to whom it is
addressed. At his suggestion I add, here, the larger
part of its contents. JI have not been able to verify
them by reference to the proper volumes, but give
them in the shape in which they come tome. Ina

subsequent edition I hope to be able to pursue further
B
vi PREFACE.

the inquiries to which they lead. If they had been
in my hands at an earlier period, they would have
served, perhaps, to add largely to the first chapter of
this work, which is their proper place.

Philadelphia, December 26th, 1849.

Dear S1r,—At your request I have looked in the French
law respecting the right of lien which builders and material
men have on buildings erected by them. I find this lien ex-
ists by virtue of art. 2103, of the Code Civil, § 4. The way
to secure the lien is peculiar; the owner of the ground is re-
quired to apply to the court to appoint viewers (experts) who
go upon the ground and make a proces verbal, which is an in-
quisition of office, in which are stated all the circumstances
and state of the ground which the owner intends to improve,
and also of the proposed improvement. On the application
of the owner the (expert) viewer comes before the judge, and
in the presence of the owner makes oath that the facts con-
tained in the procés verbal are true. The procés verbal is.
then filed in the office of the court, before whom the proceed-
ings have taken place. In this proceeding it is unnecessary
to designate the persons who are to be employed in making
the projected improvements. A transcript of this proces
verbal is then filed in the lien office, (bureau des hypothéques)
of the district where the proposed building is located.

Though this proceeding does not alone create a lien, yet
it is indispensable to secure the workmen and material men.
When this is regular, they may with safety go on with their
work and furnish materials.

Within six months after the work has been completed, either
the owner or any of the creditors may apply by petition to
the same court, and another viewer is named. All parties
interested must be notified to appear at a certain time and
place, when the oath is to be tendered to the viewer, and then,
PREFACE. "vil

if any good reasons exist, he may be challenged. The object
of this second view is to cause the works to be received juri-
dically. The viewer then goes and examines the work that
has been done, the materials which have been furnished, and
to put a proper value on them: when that is ascertained by
the contract, then it is that value; when it is not so ascer-
tained, then he estimates the work or materials at their just
value; the bills and claims of each being attached to the pro-
cés verbal. The expert also reports as to the goodness and
substantiality of the works. The procés verbal is then de-
posited in the office. A transcript of this is made within the
term, and filed in the lien office. The lien is then complete,
and its eficacy commences with filing of the first procés ver-
bal. See Merlin Rep. Privilege, art. 3, § 4; Dalloz, Dict.
Privilege, art. 3, § 4; Le Page, Lois des Batimens, partie 2,
c. 1, art. 4, § 4.

The Civil Code of Louisiana, art. 3216, contains a provision
similar to that of the French Code.

The old French law gave a lien to workmen and material
men over all other creditors, upon the equitable principle that
they who had furnished materials and had worked the common
benefit of all the creditors, ought therefore to be first paid.
Pothier, Procédure Civile, partie 4, ¢. 2, s. 3, § 5.

Both the old and the new French law give a lien for repairs
as well as for new buildings, provided the law have been com-
plied with.

Hillyard’s Abridgment, chap. 40, contains the law relating
to the lien of Mechanics and material men, in thirteen differ-
ent states.

P. S.—Since I closed this letter, I find the Romans gave a
lien not only to the man who repaired or rebuilt a house, but
also to one who lent money for that purpose. Nov. 97, ¢.
3; Code 8, 18; Code 8, 10, 2; Dig. 20, 2, 1.
PREFACE TO THE FIRST EDITION.

It is hoped, that this Treatise, though it may fail
to supply the want of a work on the subject of which
it treats, may serve as a reference to the decisions
under the various Acts of Assembly relating to the
Liens of Mechanics and Material men. It embraces
all the decisions on this subject to which the writer
has had access. Being doubtful, how far the Act of
June 1836 agreed with, or supplied the prior Acts on
the subject, he has thought proper to introduce the
latter, as well as the decisions under them. It will
be noticed, however, that there is one county, at least,
embraced by some of the prior Acts, and to which the
Act of 1836 has not been extended. The Acts prior
to that of 1836 will, whether supplied by that Act or
not, rule a great number of cases which are now pend-
ing, and may hereafter arise,—the proceedings in
which commenced before that Act took effect. The
Act of 1803, which was the first on this subject, and
repealed by that of 1806, is also given, together with
various Forms of Claims, suitable to Mechanics and
Material men, in conformity to the provisions of the

Act of 1836.

Philadelphia, October, 1839.
CONTENTS.

PART I.

OF THE ORIGIN AND HISTORY, CONSTRUCTION AND LOCAL EXTENT
OF THE LAW.

CHAPTER I.

OF THE ORIGIN AND HISTORY OF THE LAW, - - 33

CHAPTER IL.

OF THE CONSTRUCTION OF THELAW, - - =~ - 37
CHAPTER III.

OF THE LOCAL EXTENT OF THE. LAW, - - - : - 48

PART II.

OF THE CASES TO WHICH THE LAW APPLIES.

CHAPTER I.

WHO MAY HAVE THE LIEN, - - - - - 57
CHAPTER II.

OF THE NATURE OF THE DEBT SECURED BY THE LIEN, - - 83

CHAPTER III.

WHO MAY PLEDGE THE CREDIT OF THE BUILDING,. - - 125
Xu CONTENTS.

PART III.

OF THE SUBJECT OF TIE LIEN.

CHAPTER I.

OF THE SUBJECT OF THE LIEN, AS RESPECTS ITS NATURE, 131
CHAPTER II.

OF THE SUBJECT OF THE LIEN IN RESPECT OF ITS EXTENT, 135

CHAPTER III.

OF THE SUBJECT OF THE LIEN WITH REFERENCE TO THE
ESTATE, 150

PART IV.
OF THE NATURE AND EFFECT OF THE DISCHARGE OF THE LIEN.

CHAPTER I.

GENERAL REMARKS ON THE LIEN, - 163

CHAPTER II.

OF THE COMMENCEMENT OF THE LIEN, - 166

CHAPTER III.

OF TUE CONTINUANCE OF THE LIEN, - 172
CHAPTER IV.

OF THE POSITION AND PRIORITY OF THE LIEN, 184
CHAPTER V.

OF THE DISCHARGE OF THE LIEN, - - 188
CONTENTS. XU

PART V.

OF THE JURISDICTION OF COURTS AND PRACTICE UNDER THE LAW.

CHAPTER I.

GENERAL REMARKS UPON THE PROCEEDING, - 200
CHAPTER II.

OF THE JURISDICTION OF COURTS, - 202

CHAPTER ITI.

OF THE PARTIES TO THE PROCEEDING, 204
CHAPTER IV.

OF THE CLAIM, - - 219
CHAPTER V.

OF JOINT, APPORTIONED CLAIMS, - - 249
CHAPTER VI.

OF STRIKING OFF CLAIMS, - - - 260

CHAPTER VII.

OF THE SCIRE FACIAS AND ITS SERVICE, - - 262

CHAPTER VIIL.

OF COMPELLING THE CLAIMANT TO PROCEED, - 267

CHAPTER Ix.

OF COMING IN BY SUGGESTION, - - - 270
Cc
XIV CONTENTS.

CHAPTER X.

OF THE JUDGMENT FOR WANT OF AN AFFIDAVIT OF DEFENCE,

CHAPTER XI.

OF THE PLEADINGS, - ". « .

CHAPTER XII.

OF THE EVIDENCE, - - - - - - -

CHAPTER XIII.

LAW AND FACT, - - - - a *

CHAPTER XIV.

OF THE VERDICT AND JUDGMENT, -

CHAPTER XV.

OF THE EXECUTION AND SALE, AND THEIR EFFECT, -

CHAPTER XVI.

OF THE DISTRIBUTION OF THE PROCEEDS, - =

CHAPTER XVII.

OF COSTS, - 2 i ‘

CHAPTER XVIII.

OF THE PERSONAL REMEDY, - 7

272

274

279

295

297

299

304

310
CONTENTS.

APPENDIX.

"ACTS OF ASSEMBLY.

Act or Apri 1, 1803,

Act or Marca 17, 1806,
Act or Marcu 28, 1808,
Act or January 21, 1813, -
Act or Marcu 1, 1815, -

. Act or Marcu 22, 1817,
Act or Marcn 24, 1818,
Act or Marcu 7, 1821,
Act or Aprin 11, 1825,
Act or Aprit 10, 1826,
Act or Aprit 16, 1827,
Act or Fasrvary 4, 1830,
Act or January 28, 1831,
Act or Marca 30, 1831,
Act or Marcu 30, 1831,
Act or May 7, 1832,

Act or Apriz 11, 1835,
Act or Aprit 13, 1835,
Act or Aprit 1, 1836,
Act or June 16, 1836,
Act or Aprit 4, 1837,
Act or Apri 16, 1838,
Act or Apriz 16, 1840,
Act or Apri 28, 1840,
Act or Marcu 19, 1841,
Act oF ApriL 6, 18-1,
Act or Fesrvary 10, 1842,
Act or Marcu 25, 1842,
Act or Marcu 30, 1842,
Act or Aucust 2, 1842,
Act or Apri 5, 1843,
Acr or Aprin 24, 1843,
Act or Marcn 19, 1844,
Act or May 6, 1844,
Act or Aprit 16, 1845,

KV

317
318
319
321
321
322
322
323
324
324
325
325
326
326
327
328
329
329
330
330
342
343
344
3-4
344
345
345
346
346
346
346
347
347
347
348
Xvi

Act or Marcu 11, 1846,
Acr or Aprin 13, 1846,
Act or Arrit 10, 1848,
Acr or January 23, 1849,
Aor or Marcu 24, 1849,
Acr or Apri 9, 1849,
Act or Arrin 25, 1850,
Act or ApRIL 26, 1850,
Act or Aprit 21, 1854,
Act or Aprin 14, 1855,
Act or Aprin 26, 1855,
Act or Aprit 21, 1856,

I. THE SEVERAL CLAIMS,

CONTENTS.

FORMS.

IL. Tup Joint APPORTIONED CLAIM,

III. Tue scrre Facras,

IV. Psririon UNDER THE 23RD SECTION oF THE Act oF 1836,
V. ForM OF THE RULE ON THE ABOVE PETITION,
VI. ORDER OF THE COURT UPON THE ABOVE PETITION,
VII. PLaIntirr’s STATEMENT UNDER SAID ORDER, -
VIII. Derenpant’s ALLEGATIONS IN DEFENCE UNDER SAID ORDER,
IX. Entry oF THE SUGGESTION UNDER THE 19TH SECTION,

X. THE LEYARI FACIAS,

348

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361
631
362

362
TABLE OF CASES.

Abercrombie, Holdship v., 89, 90, 92, 129, 137, 154.

Allen, Killingsworth v., 100, 245.

Allison, Presbyterian Church v., 84, 111, 119, 176, 292, 295, 296.

American Fire Ins. Co. v. Pringle, 166, 168.

Anshutz v. M‘Clelland, 84, 90, 92, 151, 200, 210, 212, 216, 217, 297, 301,
306, 308.

Anshutz, Walker v., 94.

Armstrong v. Ware, 84, 101, 106, 109, 110, 296.

Arthurs, Morgan v., 84, 96.

Atkinson v. Graves, 249.

Babb v. Reed, 59, 70, 84.

Baily, M‘Adam »v., 217.

Barclay’s Appeal, 85, 97, 99, 100, 245.

Barker v. Maxwell, 205.

Barnes, Shaw v., 38, 232, 241, 245, 260, 298.
Barnes v. Wright, 76, 77, 128, 151.

Barras, Ewing v., 38, 244, 276, 296.

Bartlett v. Kingan, 176, 274.

Bayer v. Reeside, 226, 232, 236, 260, 274, 277, 298.
Bayne v. Gaylord, 297.

Beam v. First Meth. Ep. Church, 84, 146.

Bean, Leib v., 169, 184, 297, 301.

Bell, Weakley v., 193.

Bickel v. James, 90, 128, 129, 136, 151, 160, 220, 303.
Bilyeau, Gaule v., 85, 93, 100, 161.

Black’s Appeal, 224, 263.

Boden, Jobson v., 76, 80, 84.
XVill TABLE OF CASES.

Bolten, Johns v., 124, 175, 177, 189, 192.

Borton v. Morris, 268.

Borton v. Johns, 34, 37, 47, 66, 68, 123, 264, 274, 276, 277.
Boudinot, Carson v., 61.

Boudinot, Steinmetz v., 41, 60, 61, 123, 125, 151, 220.
Bournonville v. Goodall, 179, 246, 248, 278.

Breban v. Evans, 293.

Broom, Hampton w., 84, 205, 210.

Brown, Kelly v., 246, 284, 285.

Brown v. Smith, 136.

Bruner v. Sheik, 84, 130, 159, 2153.

Buchanan, Kinsley v., 189, 192.

Burling’s Estate, 38, 103.

Burr, Haines v., 239.

Burt v. Kurtz, 97, 182.

Calhoun v. Mahon, 38, 235.

Campbell v. Furness, 258.

Campbell v. Scaife, 74, 125, 277, 230.

Carson v. Boudinot, 61.

Cattanach v. Ingersoll, 283.

Chambers, Woodruff v., 203.

Chambers v. Yarnall, 171, 179, 246, 276.
Chambers v. Young, 256.

Christine v. Manderson, 205, 210, 217, 275.
Church v. Allison, $4, 111, 119, 176, 292, 295, 296.
Church, Davis v., 86, 222, 246, 275.

Church v. Davis, 41, 86, 284, 285.

Church, Dickinson College v., 84, 284, 285, 287, 290, 292, 295.
Church v. College, 84, 292.

Church »v. Griffith, 84, 87, 92, 93, 160.

Cobb v. Traquair, 76, 77.

College, Church »., 84, 292.

Commissioners The, Wilson v., 86.

Conrad, Harker v., 112, 119, 176, 193, 205, 241, 243, 295.
Conrad, Hopkins v., 197, 276.

Controllers The, Williams v., 86.

Cornelius v. Uhler, 180.

Coryell, Croskey v., 84, 121, 288.

Crean v. M‘Fee, 189.
TABLE OF CASES. XIX

Croskey v. Coryell, 84, 121, 288.
Curry v. Spink, 203.

Dalton Christman and Co’s. Appeal, 176.

Dalzell v. Lynch, 88.

Davis, Church v., 41, 86, 284, 285.

Davis v. Church, 86, 222, 246, 275.

Davis v. Farr, 255.

Davis v. Stratton, 208, 213.

Deal, Matlack v., 200, 297, 310.

Derrickson v. Nagle, 126.

Dickinson College v. Church, 84, 284, 285, 287, 290, 292, 295.
‘Donahoo »v. Scott, 235, 246, 254, 266.

Douglass, Gorgas v., 214, 249, 301.

Driesbach v. Keller, 38, 102, 104, 107, 172, 236, 237, 277, 295.
Ducomb, Lysle v., 184.

Dugan, Richebaugh v., 209, 235, 274, 278, 293.

Duncan, Phillips v., 173, 174, 175, 177.

Eastwick, M‘Call v., 121, 124.
Ellice v. Paul, 239.
Elliott, Hills v., 117, 120, 280, 284.
Elliott, Knorr v., 181.
Evans v. Breban, 293.
Evans, Mitchell v., 84, 184.
Evans v. Montgomery, 43, 160.
* Evans ». Springer, 41.
Ewing v. Barras, 38, 244, 276, 296.

Farr, Davis v., 255,

Ferguson v. Vollum, 298.

First Methodist Episcopal Church, Beam »v., 84, 146.
Flanigan, O'Neil v., 175.

Flanigan, Yearsley v., 84, 176, 177, 183, 295.
Freeman v. Gilpin, 115, 117.

Fritz, Noyes v., 271.

Furness, Campbell v., 258.

Gabell v. Parry, 193, 277, 278.
Gaul v. Bilyeau, 85, 93, 100, 161.
xX TABLE OF CASES.

Gaylord, Bayne v., 297.

Gilbert Hill’s Estate, 104, 174, 225, 242, 293.
Gilbert, M‘Mullin v., 284.

Gilpin, Freeman v., 115, 117.

Goodall, Bournonville v., 179, 246, 248, 278,
Gorgas v. Douglass, 214, 249, 301.

Graham, Hinchman v., 119, 120, 286, 288.
Graves, Atkinson v., 249.

Gray v. Holdship, 84, 96.

* Griffith, Church v., 84, 87, 92, 93, 160.

Haines v. Burr, 239.

Haley v. Prosser, 78, 122, 123, 124, 277.

Hampton v. Broom, 84, 205, 210, 263, 264.

Harbert, Wetherill v., 188.

Harker v. Conrad, 112, 119, 176, 193, 205, 241, 243, 295.
Hauer’s Appeal, 306.

Haviland v. Pratt, 40, 122, 124, 248, 292.

Haworth v. Wallace, 92, 158, 277, 293.

Hays v. Tryon, 41, 179, 207.

Hern v. Hopkins, 167, 169, 179.

Heron v. Robinson, 227.

Herron, M‘Clelland v., 84, 92, 158.

Hess, Ridgway v., 274.

Heugh, Thorn v., 226, 227, 282.

Hill v. M‘Dowell, 236, 248, 274, 276, 281, 282.

Hill, Whelan v., 197.

Hill v. Witmer, 190.

Hillary v. Pollock, 236, 281, 295.

Hills v. Elliott, 117, 120, 174, 280, 284.

Hill’s Estate, Gilbert v., 104, 174, 225, 242, 293.
Hinchman v. Graham, 119, 120, 286, 288.

Hinchman ». Lybrand, 121, 124.

Voatz v. Patterson, 63, 78, 79, 84, 97, 127.

Holden v. Winslow, 84, 112, 172, 177, 200, 293, 296, 297,
Holdship v. Abercrombie, 89, 90, 92, 129, 137, 154.
Holdship, Gray v., 84, 96.

Hoops v. Parsons, 179.

Hoover, Pennock v., 138, 167, 171, 179, 252, 254, 256, 257.
Hopkins v. Conrad, 197, 276.
TABLE OF CASES. XXl

Hopkins, Hern v., 167, 169, 179.
Howard v. M‘Kowen, 262, 274.
Howett, In re, 99, 106.

Hoy, Matlack v., 41, 299.

Hull, Shaffer v., 121, 176, 238, 242.
Hurley v. Lybrand, 113, 114.

Ingersoll, Cattanach v., 283.

Jackson, Keppel v., 84, 147, 241, 296, 307.

James, Bickel v., 90, 128, 129, 136, 151, 160, 220, 303.

James, Thomas v., 40, 185, 218.

Jobson v. Boden, 76, 80, 84.

- Johns, Bolton v., 34, 37, 47, 66, 68, 123, 264, 274, 276, 277.

Johns v. Bolton, 124, 175, 177, 189, 192.

Johns, Sullivan v., 209, 214.

Jones, Savoy and Salter v., 78, 81, 128, 150, 151, 153, 154, 157, 158; 159
206.

Jones v. Shawan, 34, 61, 63, 69, 94, 125, 127, 189, 209, 212, 215, 237, 263,
281, 282, 293.

,

Keller, Driesbach »., 38, 102, 104, 107, 172, 236, 237, 277, 295.
Kelly v. Brown, 246, 284, 285.

Keppel v. Jackson, 84, 147, 241, 296, 307.

Keyser, Springer v., 241, 243.

Killingsworth v. Allen, 100, 245.

Kingan, Bartlett v., 176, 274, 295.

Kinsley v. Buchanan, 189, 192.

Kline v. Lewis, 151, 197.

Klingler, Rogers v., 208, 220.

Knabb’s Appeal, 38, 208, 218, 222, 224, 225, 233, 234, 242, 306.
Knorr v. Elliott, 181.

Kurtz, Burt v., 97, 182.

Landis’ Appeal, 99, 106.

Large v. Millette, 71.

Lauck’s Appeal, 186.

Lauman’s Appeal, 97, 100, 185, 218, 226, 246, 259.
Leaming, Stiles v., 239.

Lehman v. Thomas, 229, 260, 274.

D
Xxil ‘ TABLE OF CASES.

Leib v. Bean, 169, 184, 297, 301.
Lemar v. Miles, 87.

Lewis, Kline v., 151, 197.

Lewis v. Morgan, 179, 190, 278.
Lindall, M‘Donald v., 84, 140, 141, 149, 240, 246.
Logan, O’Brien v., 45, 124, 239, 277.
Lybrand, Hinchman »., 121, 124,
Lybrand, Hurley v., 113, 114.
‘Lybrand, Rowley v., 113.

Lyman, Young v., 124, 239, 292.
Lynch, Dalzell v., 88.

Lyons v. M‘Guffey, 161, 184.

Lysle v. Ducomh, 184.

Mahon, Calhoun v., 38, 235.

Manderson, Christine v., 205, 210, 217, 275.

Masser, Odd Fellows’ Hall v., 199, 245, 280, 283, 291, 293.

Matlack v. Deal, 200, 297, 310.

Matlack v. Hoy, 41, 299.

Maxwell, Barker v., 205.

M‘Adam w. Baily, 217.

M‘Call v. Eastwick, 121, 124.

M‘Clelland, Anshutz v., 84, 90, 92, 151, 200, 210, 212, 216, 217, 297, 301,
306, 308.

M‘Clelland v. Herron, 84, 92, 158.

M‘Donald v. Lindall, 84, 140, 141, 149, 240, 246.

M‘Dowell, Hill v., 236, 248, 274, 276, 281, 282.

M‘Fee, Crean v., 189.

M‘Gittigan, Sweeney v., 182.

M‘Glaughlin v. Smith, 310.

M‘Guffey, Lyons v., 161, 184.

M‘Uhenny v. Pratt, 138.

M‘Kowen, Howard v., 262, 274.

M‘Mullin v. Gilbert, 284.

M‘Namee v. Stoever, 254.

Melchoir, Wallace v., 119, 288.

Miles, Lemar »., 87.

Miller v. Oliver, 106.

Miller, White v., 34, 132, 288.

Millette, Large v., 71.
TABLE OF CASES. XXili

Mitchell v. Evans, 84, 184.
Montgomery, Evans v., 43, 160.
Montgomery, Taylor v., 258.
Moore, Siner v., 159.

Morgan v. Arthurs, 84, 96.
Morgan, Lewis v., 179, 190, 278.
Morris, Borton v., 268.

Murray, Simpson »., 244, 282.
Mustin v. Vanhook, 41, 181.

Nagle, Derrickson v., 126.

Nelson, Smith v., 108, 109, 110, 296.

Noll v. Swineford, 84, 212, 226, 231, 232, 263.
Noyes v. Fritz, 271.

O’Brien v. Logan, 45, 124, 239, 277.

O’Connor v. Warner, 34, 45, 154, 160.

Odd Fellows’ Hall v. Masser, 199, 245, 280, 283, 291, 293.
Oliver, Miller v., 106.

Olympic Theatre, case of, 84, 96, 101, 103, 292.

O’Neil v. Flanigan, 175.

Parry, Gabell v., 193, 277, 278.

Parsons, Hoops »., 179.

Patterson, Hoatz v., 63, 78, 79, 84, 97, 127.

Paul, Ellice »., 239.

Pennock v. Hoover, 138, 167, 171, 179, 252, 254, 256, 257.
Perigo v. Vanhorn, 106, 109, 296.

Phillips v. Duncan, 173, 174, 177.

Pollock, Hillary v., 236, 281, 295.

Pratt, Haviland v., 40, 122, 124, 248, 282.

Pratt, M‘TIhenny v., 138.

Presbyterian Church v. Allison, 84, 111, 119, 176, 292, 295, 296.
Pringle, American Fire Insurance Company v., 166, 168.
Prosser, Haley v., 78, 122, 123, 124, 277.

Reed, Babb w., 59, 70, 84.

Reed, Richards v., 273.

Reeside, Bayer v., 226, 232, 236, 260, 274, 277, 298.
Rehrer v. Zeigler, 39, 231, 281.
XXIV TABLE OF CASES.

Richards v. Reed, 273.

Richebaugh v. Dugan, 209, 235, 274, 278, 293.
Ridgway v. Hess, 274.

Rogers v. Klingler, 208, 220.

Rowley v. Lybrand, 113.

Russell, Washburn v., 84, 243, 244.

Savoy and Salter v. Jones, 78, 81, 128, 150, 151, 153, 154, 157, 158, 159,
206.

Scaife, Campbell v., 74, 125, 277, 280.

Scott, Donahoo v., 235, 246, 254, 266.

Scott v. Senderling, 225.

Senderling, Scott v., 225.

Shaffer v. Hull, 121, 176, 238, 242.

Sharpknack v. Wilson, 182.

Shaw v. Barnes, 38, 232, 241, 245, 260, 298.

Shawan, Jones v., 34, 61, 63, 69, 94, 125, 127, 189, 209, 212, 215, 237, 263,
281, 282, 293.

Sheik, Bruner v., 84, 130, 159, 213.

Simpson v. Murray, 244, 282.

Siner v. Moore, 159.

Smith, Brown v., 136.

Smith, M‘Glaughlin v., 310.

Smith v. Nelson, 108, 109, 110, 296.

Spink, Curry v., 203.

Springer, Evans v., 41.

Springer v. Keyser, 241, 243.

Steinmetz v. Boudinot, 41, 60, 61, 123, 125, 151, 220.

Stetler, Third Associate Reformed Presbyterian Church v., 199.

Stevenson v. Stonehill, 59, 169.

Stiles v. Leaming, 139.

Stoever, M‘Namee v., 254.

Stonehill, Stevenson v., 59, 169.

Stratton, Davis v., 208, 213.

Streeper, Walter v., 268.

Sullivan v. Johns, 209, 214. |:

Sweeney v. M‘Gittigan, 182.

Swineford, Noll v., 84, 212, 226, 231, 232, 263.

Taylor v. Montgomery, 258.
Tearney, Williams v., 180, 190.
TABLE OF CASES, - XXV

Third Associate Reformed Presbyterian Church v. Stetler, 199.
Thomas v. James, 40, 185, 218, 305.
Thomas, Lehmann v., 229, 260, 274.
Thompson’s case, 189.

Thompson v. Ward, 249.

Thorn v. Heugh, 225, 227, 282.
Thorp, Wademan »v., 84, 96.

Tilford v. Wallace, 37, 49, 296.
Traquair, Cobb v., 76, 7%.

Tryon, Hays v., 41, 179, 207.
Twelves v. Williams, 302.

Uhler, Cornelius »., 180.

Vanderveer’s case, 184.
Vanhook, Mustin v., 41, 181.
Vanhorn, Perigo v., 106, 109, 296.
Vollum, Fergusson v., 298.

Wademan v. Thorp, 84, 96.

Walker v. Anshutz, 94.

Walker, Witman v., 40, 68, 119, 127, 230, 233, 240.
Wallace, Haworth v., 92, 158, 277, 293.
Wallace v. Melchoir, 119, 288.

Wallace, Tilford w., 37, 49, 296.

Ward, Thompson v., 249.

Walter v. Streeper, 268.

Ware, Armstrong v., 84, 101, 106, 109, 110, 296.
Warner, O’Connor v., 34, 45, 154, 160.
Washburn v. Russell, 84, 243, 244.

Weakley v. Bell, 193.

Werth v. Werth, 84, 85, 100, 138, 147, 187, 302.
Wetherill v. Harbert, 188.

Whelan v. Hill, 197.

White’s Appeal, 84, 92.

White v. Miller, 34, 132, 288.

Williams v. The Controllers, 86.

Williams v. Tearney, 180, 190.

Williams, Twelves v., 302.

Wilson, Sharpknack v., 182.
XXV1 TABLE OF CASES.

Wilson v. The Commissioners, 86.

Winslow, Holden v., 84, 112, 172, 177, 200, 293, 296, 297.
Witman v. Walker, 40, 68, 119, 127, 230, 233, 240.
Witmer, Hill v., 190.

Woodruff v. Chambers, 203.

Wright, Barnes v., 76, 77, 128, 151, 208, 263.

Yarnall, Chambers v., 171, 179, 246, 276.
Yearsley v. Flanigan, 84, 176, 177, 183, 295.
Young, Chambers v., 256.

Young v. Lyman, 124, 239, 292.

Zeigler, Rebrer v., 39, 231, 281.
ERRATA.

Page 99, note 2, for “Howell” read “ Howett.”

Pages 161 and 184, for “M‘Gaffey,” read “ M‘Guffey.”

Page 217, 5th line, instead of “contract was made, or the work done, or
materials furnished,” read “building was commenced.”

Page 219, for “Chapter III” read Chapter IV.
PART I.

OF THE ORIGIN AND HISTORY, CONSTRUCTION AND LOCAL
EXTENT OF THE LAW.

CHAPTER I.
OF THE ORIGIN AND HISTORY OF THE LAW.

“Tue Acts of Assembly giving a specific lien on
buildings for work done, and materials furnished for
them, established a system for which no precedent ex-
isted in our own or the English law. The only pre-
vious instance of a character at all similar, is to be
found in the Act of 1784, relating to persons employed
in building and repairing vessels, the subject matter
of which, however, differs, in some obvious points, from
that of the Act of 1806, although the phraseology of
the former has been followed in some passages.” *

The precise history of the movement that led to
the passage of the first act does not now clearly
appear. Its origin must, therefore, be doubtfully ex-

 

1 Explanatory remarks of the Commissioners to revise the civil code.

9
ov
34 ORIGIN AND HISTORY OF THE LAW.

plained from such casual remarks as we can glean from
the cases. “Our legislature for almost forty years,”
says Ch. J. Gibson, in the year 1842, “breathed one
uniform spirit of kindness to the operative.” “The
manifestation of its former kindness is visible in the
enlargement of the system so as to embrace ships and
even curbstones, and in the gradual diffusion of it
over almost the whole state.’”’*

The same judge remarks, in another of his decisions;
“Tt was the frequency of loss sustained by mechanics
and dealers, in consequence of the employment” of the
middleman or contractor “which first induced the
legislature to give them a lien on the building.”

A perfect system could hardly have resulted, at once,
from such an effort. “It is not surprising, therefore,”
say the Commissioners, whose language we have al-
ready quoted, “that defects have been discovered in
the acts in question, nor that great difficulties have
been experienced by the courts and the bar, in giving
effect to the design of the legislature.”

The earlier provisions were, indeed, meager and un-
satisfactory. As the judge just referred to remarks,
in one of his decisions; “ By reason of the novelty of
the subject it happened that the first act fell short of
the object.”* And in another, “The adaptation of these
lien laws was imperfect, and they worked ill for the
owner at first.”° In the earlier Acts the requisitions
as to the form of the claim were few and illy con-

 

1Q’Conner v, Warner, 4 W.& 8.226. ? Bolton v. Johns, 5 B. 150.
3 Explanatory remarks, &c. * Jones v. Shawan, 4 W. & S. 264.
6 White v. Miller, 6 H. 54.
ORIGIN AND HISTORY OF THE LAW. 35

sidered, the nature of the remedy was but vaguely in-
dicated, the mode of continuing the lien was doubtful,
and when continued it remained perpetual. ‘These de-
fects were aided from time to time, by enactments,
which, however, still continued to lack system and com-
pleteness. But the Act of 1836, which was at length
passed almost as it came from the hands of the com-
missioners, left but little, as far as the legislature was
concerned, to be desired. It is, with its supplements,
the foundation of the present system.

There have been two periods of interest in the his-
tory of the law, a mention of which we do not feel
at liberty to omit, even in this brief sketch.

It had been frequently decided, from the origin of
the system, that the len was one which, without re-
ference, as a general rule, to the particular estate of
the person in possession, bound the fee simple in the
land. This result was considered important for the
safety of the mechanic, and clearly within the design
of the legislature. By an Act of 1840 these decisions
were swept away, and the lien restricted to the estate
of the person in possession at the commencement of
the building. The cases to which we shall refer here-
after will show how sensibly this revolution was felt
in the system, and how soon it led to grave questions
of construction and constitutional law.

The other change was less radical, but of impor-
tance. It had been held by the courts that the per-
son called in the Act the contractor, was not within
its provisions, and could not file a claim. Decision
went so far, at length, that no person who had made
36 ORIGIN AND HISTORY OF THE LAW.

a special contract could obtain the lien. These cases,
also, were rendered nugatory by an Act of 1845, and
the existence of a special contract appears to be no
longer in the way of a claim.

“The policy of the system has been, often and se-
riously, questioned, and doubts have been, frequently,
expressed, whether, upon the whole, it works well, even
for those for whose benefit it was enacted, since it tends
to clog the transfer of real estate, by the risk in which
it involves purchasers and mortgagees. The example
set by this state, however, has been followed in some »
others, and, recently, by Congress, in relation to the
District of Columbia, by the adoption, in the same
words, of the Acts of 1806 and 1808. Public opinion,
also, seems favourable to a continuance of the system,
since the lien, which, by the Act of 1806, was confined
to the city and county of Philadelphia, has, by suc-
cessive Acts, been extended to thirty-nine counties,
besides several boroughs or towns.”

These remarks were made in 1836. Since that
period many other counties have been brought within
the provisions of the law, which extends, now, over
by far the larger portion of the state.
CONSTRUCTION OF THE LAW. 37

CHAPTERITII.
OF THE CONSTRUCTION OF THE LAW.

Ir will appear, from what has been already said,
that the remedy given by these Acts is novel and ex-
traordinary, and purely statutory in its character.
This consideration has, in many of the decisions,
weighed with the court in construing their provisions.

Thus in a case of comparatively early date, the
court say: “A len for work and materials on the
building is a privilege derived entirely from statutory
provision, and cannot be maintained beyond the ex-
tent of the grant by Act of Assembly.”* And later,
“A mechanic’s lien depends on no principle of moral
right, but on positive enactment, of which it is the
creature, and beyond the terms of which it cannot
be extended.” *

But these dicta, must, in view of other decisions, be
limited to those aspects of the question of construc-
tion which result from efforts to extend its application
to new localities, as in the first case, or to new debts,
or new subjects.

In most of the instances in which the necessity of
strict compliance with the requisitions of the Acts,
as to form in procedure, has been the point before the
court, its language has been very different.

 

1 Tilford v. Wallace, 8 W. 143. Bolton v. Johns, 5 B. 149.
38 CONSTRUCTION OF THE LAW.

Thus, in the Court of Common Pleas of the County
of Philadelphia, King, J., said: “This Act of Assem-
bly ought to receive a liberal construction in favour
of the meritorious class of citizens, the just claims of
whose industry it is intended to secure.” *

And the Supreme Court, in later years, has used si-
milar language: “Accuracy ought to be carefully at-
tended to; but as claims are frequently filed by the
material men, themselves, it would lead to injustice to
hold, that every mistake, however trifling, should
avoid the lien. Only such as are calculated to mis-
lead subsequent purchasers or creditors should destroy
the claim. The object which the legislature has in
view is attained, by setting forth on the record such
matters as will leave no reasonable room to doubt the
particular building intended, against which the claim
is filed. And, for this purpose, certainty to a common
intent is all that can be reasonably required.” ?

In other decisions we find, indeed, a little more
guard and measure in the expression of the court
upon this point. Thus, Bell, J., says :—“It has been
felt, that the extraordinary remedy afforded by our
laws to mechanics and material men, requires to
be properly guarded, to prevent it from becoming
a source of unjust annoyance and injury, to those
whose property is liable to be made the subject of its
action. It has, accordingly, from time to time, at-

 

" Burling’s Est., 1 Ash. 377.

? Wwing v. Barras, 4 W. & S. 468. See also, Shaw v. Barnes, 5
B.21. Calhoun v. Mahon, 2 H. 58. Knabb’s Ap., 10 B. 188.
Driesbach v. Keller, 7 B. 77.
CONSTRUCTION OF THE LAW. 39

tracted legislative attention, until the fruit of former
experience was embodied in the Act of the 16th of
June, 1836, which provides, inter alia, that the claim
or statement filed in the office of the prothonotary,
shall set out ‘the amount or sum claimed to be due, and
the nature or kind of the work done, or the kind and
amount of materials furnished, and the time when the
materials were furnished, or the work was done, as the
case may be.’ As this statute, and those of a kindred
character, which preceded it, confer a large license
upon the class of meritorious citizens whose interests
it was intended to advance; our courts have found it
necessary, for the protection of others, to hold them
to, at least, a substantial compliance with the requisi-
tions of the Acts of Assembly. This observance is,
indeed, absolutely essential to the safety of owners,
purchasers, and other lien creditors, as furnishing some
data by which, in case of dispute, they may be enabled
to search out the truth. The clue may be an imper-
fect one; but in this consideration will be found addi-
tional reason why it should be afforded to those, who,
otherwise, are left to grope in obscurity, without even
a glimmer of light by which to direct research. As
the law calls for nothing unreasonable at the hand of
him who would fasten an encumbrance upon the pro-
perty of his neighbour, no just ground of complaint is
afforded by insisting upon a rigid adherence to its
provisions. The information it exacts is, or ought to
be, entirely within the power of the creditor to give,
and an omission to put it on the record is, therefore,
without excuse: Rehrer v. Zeigler, 3 Watts & Serg.
40 CONSTRUCTION OF THE LAW.

258; Thomas v. James, 7 Watts & Serg., 381; Wit
man v. Walker, 9 Watts & Serg., 186. Indeed, the
great object of the statute in pointing out the charac-
teristics of the statement to be filed, would, in the end,
be utterly defeated, were we to indulge the laxity of
practice which ignorance and carelessness conspire to
introduce and perpetuate.” *

But notwithstanding this language, the great cur-
rent of authority is in favour of a most indulgent re-
gard for these claims, in respect of their form.

A late decision of the District Court for the City and
County of Philadelphia, contains suggestions which
deserve mention here. Mare, J., in delivering the
opinion of the court, says: “Although the system of
mechanics’ liens owes its origin to the liberal ideas of
the present day, it is encumbered with restrictions un-
known to the most technical periods of the English
law, it is without the aid of the statutes of jeofails,
and beyond that of the common law power of amend-
ment. Where so much strictness is required in alle-
gation, we should not impose additional difficulties in
the way of proof, and should, in the language of Lord
Mansfield, avoid entangling the right in a net of form.’

There is a class of cases in which questions of con-
struction have arisen with reference to the retrospec-
tive effect of certain Acts of Assembly, which should
be noticed here. In some of these instances, the views
of the court have been based upon the words of the
particular enactment. Thus, it was made a question,

 

16 B. 191. ? Haviland v. Pratt, 9 Leg. Int. 98.
CONSTRUCTION OF THE LAW. 4]

whether the Act of 1803 applied to a building erected
before its passage. The court refer to the words in
the Act, “all buildings thereafter to be constructed
and erected,” and appear, in part, to rely upon them
in deciding that such a building was not within its
provisions.

But in this case the court also say; “and if that
Act is to comprehend such cases, it might follow, that
a mortgagee or judgment creditor, whose lien com-
menced between the beginning of the building and the
making of the law, would be cut out by an ex post
facto operation, which never could have been the in-
tent of the legislature.”*

So, in a later decision, the court held that the Act of
June 16th, 1836, was prospective in its operation, and
did not affect claims filed prior to its passage. But it
does not appear from the opinion whether this conclu-
sion was reached upon general constitutional princi-
ples or from the words of the statute.”

But in subsequent cases new aspects of the question
were presented. Soon after the Act of 1840, to which
we have already referred, which confined the lien of
the mechanic, and the title under it, to the estate “of
the person or persons in possession at the time of com-
mencing” the building, “and at whose instance the
same is erected,” the courts were called upon to decide
whether a sale made after the passage of the Act, un-

 

1 Steinmetz v. Boudinot, 38. & R. 542.

* Church v. Davis, 9 W. 304. See also, Evans v. Springer, 2 M.
80. Matlack v. Hoy, ib. note. Hays v. Tryon, 2 M. 212. Mustin
v. Vanhook, 8 Wh. 574.
42 CONSTRUCTION OF THE LAW.

der a claim filed before it, was governed by its pro-
visions; or whether a fee simple passed to the pur-
chaser, in accordance with the enactments of prior
statutes, as construed by the decisions.

It will be found, upon referring to the Act of 1840,
that though there are no expressly retrospective words
in the enactment, there is ground for a presumption
that such an effect was intended.

In the earliest of these cases Sergeant, J., in deliver-
ing the opinion of the court, says: “ All that has been
or can be objected to the provisions of the Act of As-
sembly in question, passed on the 28th of April, 1840,
is, that it has modified the remedy which the credi-
tor possessed, according to the construction of the
courts, for the recovery of his debt, under the previ-
ous Acts of Assembly giving mechanics and material
men a lien for their work or materials. Butit is now
clearly established, by repeated decisions, that the le-
gislature may pass laws altering, modifying or even
taking away remedies for the recovery of debts, with-
out incurring a violation of the clauses in the consti-
tution which forbid the passage of ex post facto laws,
or laws impairing the obligation of contracts. And
where the provisions of such laws, in relation to re-
medies, apply only to future proceedings, there is not
the least ground for appealing to constitutional re-
strictions on the powers of the legislature. Such is
the case in the present instance, so far as concerns=
sales thereafter to be made; for the Act expressly de-
clares, that no other or greater estate shall be sold by
virtue of any execution directed or authorized by the
CONSTRUCTION OF THE LAW. 43

former act, than that of the person who is in possession
and erecting the building. Supposing, therefore, that
the Act of 16th of June, 1836, was subject to the
same interpretation which was given by this court to
the Acts of 1803 and 1806 (which, however, has ne-
ver been decided;) yet it is no more than a statutory
enactment abrogating the existing remedy in all fu-
ture proceedings. The remedy, itself, certainly, went
to a great extent, when it enabled one person to divest
another of his land without his participation in the
building, and, perhaps, without his knowledge. It
was, moreover, altogether a statutory remedy, created
by the legislature, not known to the common law, a
boon to a favoured class of the community, for the
special encouragement of labour in the erection of
houses, and subject to the control of the legislature,
either to alter, vary or modify it, or repeal it alto-
gether. Montgomery, the purchaser, has no reason-
able ground of complaint, because the Act was passed
several months prior to his purchase, and, therefore,
he.is to be considered as well aware of it, and as buy-
ing under its authority and subject to its provisions,
according to which he took only the leasehold estate
of Miller, as his assignee, and is subject to all the
covenants contained in the lease.”*

In this decision, it will be observed, the reasoning of
the court is based entirely upon the doctrine, that the
Act in question did not impair a contract, but only
modified a remedy. Its effect, as a statute declarato-

 

1 Evans v. Montgomery, 4 W. & 8. 220.
a4 CONSTRUCTION OF THE LAW.

ry of the meaning of that of 1836, was not referred to,
nor was its retroactive force with reference to a title
actually vested under the Act of 1836, prior to its
passage, in controversy.

But in a case following it, immediately, the ques-
tion of its effect upon a sale made before its enact-
ment, came directly up. In that case the claim had
been filed and a sale under it made in 1839. Gibson,
J., after an earnest, and almost indignant opinion in
favour of the law as it stood under the earlier deci-
sions, says:—“But, whatever the design, a legislative
mandate to change the settled interpretation of a sta-
tute and uproot titles depending on past adjudications,
or a legislative direction to perform a judicial func-
tion in a particular way, would be a direct violation
of the constitution, which assigns to each organ of the
government its exclusive function and a limited sphere
of action. No one will assert that a court would be
bound by a mandate to decide a principle, or a cause
in a particular way. Such a mandate would be a
usurpation of judicial power, and more intolerable in
its exercise than a legislative writ of error, because
the losing party would be concluded by it, without be-
ing heard. In the case before us, we are firmly con-
vinced, that the legislature did not design to deprive
purchasers of their titles acquired under the original
act; but whatever the design, we are bound to give
the section a benign interpretation.

“Yet we are not compelled by the preceding consi-
derations to give it an operation entirely prospective.
No one has purchased on the faith of aj udicial eXpo-
CONSTRUCTION OF THE LAW. 45

sition of the Act of 1836, for it has received none.
Purchasers have acted on their own interpretation of
its meaning, and, consequently, on their own responsi-
bility. They cannot complain of violated faith given
to the accredited act of a constitutional organ; and,
till the judiciary has fixed the meaning of a doubtful
law, the legislature has a right to explain it. The
Act of 1836 was susceptible of such explanation. It
was not the law which had been before the courts;
and the construction given to its predecessors, was
not applicable to it with conclusive force. For that
reason alone the judgment is sustained.” ?

It is very manifest from this language of the court,
that if the Act of 1836 had been previously construed
as prior Acts had been, and as it must have been, had
a case arisen, the decision would have been different.
The Act of 1840 was evidently treated by the court
as one affecting rights and contracts, and not a mere
modification of the remedy. And it was only saved,
so far as its retroactive effect was concerned, by the
very forced and artificial argument, that as the Act of
1836 had not actually received a judicial construc-
tion, no right could, technically, be said to be impaired.
This decision disregarded entirely the very simple rea-
soning that Acts prior to that of 1836 had been ex-
pressly held to affect the fee, that the Act of 1836 did
not differ from them at all in this respect, that the ear-
lier decisions were, therefore, in fact, constructions of
the law of 1836, so far so, at least, that upon the faith

 

1 Q’Conner v. Warner, 4 W. & §. 223. And see O’Brien v. Lo-
gan, 9 B. 97.
46 CONSTRUCTION OF THE LAW.

of them, the title in question, and others had been
taken.

We cannot but consider the opinion of the court in
the latter case, therefore, as somewhat in conflict with
the former.

In a still later case the subject came up under a
different Act, and new elements appear to have been
introduced. We have before remarked, that prior to
1845, it had been decided that no person who had
done work, or furnished materials, under a special con-
tract, could file a claim, and that an enactment of that
year had declared that the Act of 1836 should be con-
strued so as to induce such contract. A claim was
filed, in 1843, alleging a special contract, and upon a
scire facias, the question arose, in 1847, whether the
Act of 1845 had a retroactive effect to support it. Ch.
J. Gibson says: “So far as regards the parties to the
contract to build, the enactment of the statute in
question was clearly constitutional. No alteration of
their rights was proposed, further than to give a spe-
cific remedy against the property, in addition to the
remedy which the contractor had against it, indi-
rectly, by action; and retrospective laws have al-
‘ways been sustained, where they touched not the
right, but the remedy. So far there is no dispute.
But the scene may be changed by the introduction of
a purchaser for value, actually paid, at a time when
the property was free from the supposed lien; and it
is proper to say, that his having had notice of a de-
fective lien would be immaterial... . A mecha-
nic’s lien depends on no principle of moral right, but
CONSTRUCTION OF THE LAW. 47

on positive enactment, of which it is the creature;
and beyond the terms of which it cannot be extended.
If, then, the legislature cannot directly create a lien
for the debt of another, where none existed before, it
cannot do it, indirectly, by putting a particular con-
struction on a statute which had received a different
construction before the period of the purchase.” *

 

* Bolton v. Johns, 5 B. 149.
48 LOCAL EXTENT OF THE LAW.

CHAPTER II].

OF THE LOCAL EXTENT OF THE LAW.

Tue provisions of the Act of 1803 were confined
to “the city of Philadelphia, the district of Southwark,
and the township of the Northern Liberties.” That
Act was repealed, however, by one of 1806, except so
far as it applied to liens cognizable by its provisions
previously to the later Act, and to actions then pend-
ing under its enactment.

The Act of 1806 embraced “the city and county
of Philadelphia.”

By an Act of March 28th, 1808, the Act of 1806
was declared to be in force “in the borough of Erie,
in the county of Erie, the borough of Lancaster in the
county of Lancaster, and the borough of Pittsburgh,
in the county of Allegheny.”

By an Act of January 21st, 1813, the Act of 1806,
with its supplement of 1808, were declared to be in
force “in the borough of Beaver, in the county of
Beaver.”

By an Act of March 1, 1815, the same Act and
supplement were declared to be in force “in the bo-
rough of Marietta, in the county of Lancaster, and
the borough of Harrisburgh, in the county of Dau-
phin.” .

By an Act of March 22nd; 1817, the same Act and
LOCAL EXTENT OF THE LAW. 49

supplement were declared to be in force “in the Bo-
rough of Reading, in the county of Berks, in the Bo-
rough of Westchester, in the county of Chester, and
in the towns of Allegheny, Birmingham, Sidneyville,
Belinstown, Bayardstown, Lawrenceville, and Wil-
kinsburgh, in the county of Allegheny, and all other
towns and villages that now are or may be laid out
within ten miles of the line of the city of Pittsburgh,
and in every part of the counties of Lancaster, Mont-
gomery, York, Dauphin, Franklin and Lebanon.”

In the case of Tilford v. Wallace, a lien was filed
against a brick house situated “on an eminence be-
tween the Pittsburgh and Greensburgh Turnpike, and
the village of Lawrenceville.” It was proved at the:
trial, that the building was not in the village of Law-
renceville, nor in any village possessing a name, but
that it was in the midst of a collection of buildings
adjoining Lawrenceville. It was held by the court
that the lien was invalid; that the house was not
within the town of Lawrenceville; that, though it was
within two miles from Pittsburgh, the collection of
buildings among which it stood, having no name, could
not be considered as a “town,” or “village,” and that
it was therefore not within the terms of the Act of
1sLis

By an Act of March 24, 1818, the same Act and
supplement were declared to be in force in the coun-
ties of Cumberland, Northumberland, Columbia and
Beaver.

 

13 Watts, 143.
50 LOCAL EXTENT OF THE LAW.

By an Act of March 7th, 1821, they were declared
to be in force in the counties of Delaware, Bucks, Lu-
zerne, and Mifflin.

By an Act of April 11th, 1825, they were declared
to be in force in the counties of Schuylkill, Berks,
Erie, Somerset, and Venango.

By an Act of April 10th, 1826, they were declared
to be in force in the counties of Crawford, Lycoming,
Centre, Clearfield, and Indiana.

By an Act of April 16th, 1827, they were declared
to be in force in the county of Union.

By an Act of February 4th, 1830, they were declared
to be ‘in force in the borough of Easton, in the county
of Northampton.

By an Act of March 30th, 1831, they were declared
to be in force in the counties of Bedford, Cambria,
Tioga, and Armstrong.

By an Act of May 7th, 1832, the Act of 1806 and
supplements of 1808 and 1831 were declared to be in
force in the counties of Chester, Butler and Perry.

By an Act of April 11th, 1835, the Act of 1806,
and its supplement of 1808, were declared to be in
force in the counties of Warren and Juniata.

By an Act of April 15th, 1835, the Act of 1806,
and its supplements of 1808 and 1831, were declared
to be in force in the counties of Washington, Hunting-
don, Mercer, Beaver and Allegheny.

By an Act of April Ist, 1836, the Act of 1806, and
its supplements of 1808 and 1831, were extended to
Susquehanna county.

Tt will be observed, that, in some of these several
LOCAL EXTENT OF THE LAW. 51

Acts extending the lien, no mention is made of any
supplements except that of 1808, and that, in others,
those of 1808 and 1831 are both embraced.

The Act reported by the Commissioners to revise
the Civil Code, on the 4th of January, 1836, applied
tothe whole Commonwealth. It ran;—“ Every build-
ing erected within this Commonwealth shall be subject
to a lien, &.” And they say, in speaking of this
section :—“ The first section makes the provision gene-
ral. It has already been extended over the principal
part of the state, rural as well as urban, and we see
no reason why it should not be general. If it should
not be acceptable, however, in any county, or place, a
section may be added excepting such place.”

When the Act came before the legislature, how-
ever, it was altered in this respect. The Act of June
16th, 1836, which was, in the main, that reported by
the Commissioners, and which was intended to bring
into one body all the provisions upon this subject, re-
peals so much of any law as was altered by its enact-
ments, and declares its own provisions applicable to
the several counties to which the Act of 1806 “and
the several supplements thereto” then extended.

It was, no doubt, the intention of the legislators
that the benefit of this Act of 1836 should extend to
all of the several counties, boroughs, towns and vil-
lages in which the Act of 1806 had been declared to
be in force, without reference to the fact whether all
of its supplements had been extended to each of them.
But the words of the former Act might, upon a strict
construction, lead to a question. Particularly, when
52 LOCAL EXTENT OF THE LAW.

we find, as will appear presently, that even since the
Act of June 16th, 1836, and its repealing clause, the
Act of 1806 and its supplement of 1808, alone, have
been declared to be in force in a certain locality; as if
there were those who still preferred the provisions
of the earlier statute, and that one supplement, to those
of the later one. It would be dangerous, however, to
hazard the opinion that no county which, prior to the
passage of the Act of 1836, had not received the Act
of 1806 and all its supplements, was not included in
the new legislation, for the whole weight of usage, at
least, seems to be the other way.

The Act of June 16th, 1836, extends its own pro-
visions to the county of Lehigh.

By an Act of April 16th, 1858, the Act of 1806,
and its supplement of 1808, were declared to be in
force in the county of Bradford. It will be seen how-
ever, presently, that in a subsequent year, this Act
was repealed, and the Act of 1836 was extended to
the same county.

By an Act of April 16th, 1840, the Act of 1836 is
declared to be in force in Wayne and Fayette counties.

By Acts of March 19th, and April 6th, 1841, the
Act of 1836 is extended to the counties of Clinton,
Clarion and M‘Kean.

By an Act of February 19th, 1842, the above Act
of 1838 is repealed, and the Act of 1836, and its sup-
plement of 1840, are extended to Bradford and Mon-
roe counties. By Acts of March 25th and August
2nd, of the same year, the Act of 1836 is extended to
Greene and Dauphin counties,
LOCAL EXTENT OF THE LAW. 53

By an Act of April 5th, 1843, the Act of 1836 is
extended to the counties of Potter and Jefferson.

By an Act of March 19th, 1844, the Act of 1836
is declared to be in force in Northampton county.

By an Act of March 11th, 1846, the Act of 1836,
with its supplements, and a supplemental provision of
an Act of 1845, are extended to Pike county.

By an Act of April 13th, 1846, the Act of 1836,
“together with the several supplements thereto,” are
extended to Adams county.

By an Act of April 9th, 1849, the Act of 1836 is
extended to the counties of Westmoreland and Elk.

By an Act of April 26th, 1850, the Act of 1836 is
extended to Carbon county.

The following counties, therefore, seem now to be
included within the general provisions of the law of
1836, and to many of them its supplements extend.

Adams, Clarion, Huntingdon,
Allegheny, Clearfield, Indiana,
Armstrong, Clinton, Jefferson,
Beaver, Columbia, Juniata,
Bedford, Crawford, Lancaster,
Berks, Cumberland, Lebanon,
Bradford, Dauphin, Lehigh,
Bucks, Delaware, Luzerne,
Butler, Elk, Lycoming,
Cambria, Erie, M‘Kean,
Carbon, Fayette, Mercer,
Centre, Franklin, Mifflin,

Chester, Greene, Monroe,
Ld

54 LOCAL EXTENT OF THE LAW.

Montgomery, _ Potter, Venango,
Northampton, Schuylkill, Warren,
Northumberland, Somerset, Washington,
Perry, Susquehanna, Wayne,
Philadelphia, Tioga, Westmoreland,
Pike, Union, York.

It is hardly worth while to enumerate the boroughs,
towns and villages mentioned in some of the Acts
which we have referred to. The entire counties in
which they are found, have, by later provisions, been
included within the application of the law.

These several counties are not, however, upon ex-
actly the same footing, with respect to all the provi-
sions of the Acts of Assembly in regard to the lien of
mechanics and material men.

By the 29th section of the Act of 1836, the lien is
extended to plumbers, and persons furnishing curb-
stone within the city and county of Philadelphia
only.

By an Act of April 24th, 1843, this section was ex-
pressly declared to be in force in Northampton county.
But this enactment seems to have been premature.
The rest of that Act was then not in force, in any
part of that county, except the Borough of Easton.
In the next year, 1844, the mistake appears to have
been discovered, and the entire Act of 1836 was ex-
tended to the whole of Northampton county.

By an Act of March 24th, 1849, the Act of 1836
is “extended to plumbers within the county of Ches-
ter.” And by an Act which became a law on the
LOCAL EXTENT OF THE LAW. 55

23rd of January, 1849, the 29th section of the Act of
1836 was, also, extended to that county.

By an Act of May 6th, 1844, the Act of 1836 is
extended to plumbers and persons furnishing curb-
stones, &c., &c., within the bounds of the city of Lan-
caster.

By an Act of April 9th, 1849, the Act of 1836 is
extended to “every fixture in and about iron works
and mines, and to every bridge and building where
work is done, or materials furnished in the construction
of such fixture, in and about mines or iron works,
bridge or building for any corporate, body,” &. But
this provision only applies to the counties of Columbia
and Elk.

- By an Act of April 21st, 1854, extending only to
Schuylkill county, the Act of 1836 is extended to the
“improvements, machinery and fixtures erected by
tenants of coal lease estates, on lands of others, and to
all mechanics and material men, doing work and fur-
nishing materials therefor.”

Certain special licenses in procedure are, also, by
different Acts granted within one or two counties
only. Thus by an Act of March 24th, 1849, me-
chanics or material men, in the counties of Philadel-
phia and Chester, are allowed to include both work
and materials in the same claim. And the Act just
mentioned, which extends the application of the law
in Schuylkill county, gives a peculiar process for the
recovery of the sums secured by the liens for which it
provides.
56 LOCAL EXTENT OF THE LAW.

The general character of the distinctions made be-
tween different counties will appear from these re-
marks. Under the proper heads we shall treat them
more in detail.
PART II.

OF THE CASES TO WHICH THE LAW APPLIES.

CHAPTER TI.

WHO MAY HAVE THE LIEN.

Ir is scarcely worth our while to discuss the ques-
tion, who may have this remedy in respect of their
personal status. No particular mention is made, in
the several Acts, of minors, femes covert, idiots, lunatics,
persons acting in a fiduciary capacity, or aliens. It
is presumed that the same rules which govern their re-
spective rights and remedies in other cases, will be
applicable, generally, to this subject.

It might appear, at first view, that, under this
head, it would be proper to consider who may have
the lien with respect to the nature of his trade or oc-
cupation. It will be found on reflection, however,
that this topic falls more properly under the next
head. Whether the paper-hanger, plumber or other
particular artisan is within the law, is a question de-
pending, as will be found, less on himself and his own
58 WHO MAY HAVE THE LIEN.

relation to the structure, than on the relation and im-
portance of his work. It has respect to the debt, there-
fore, for which a claim may be filed, and its nature
and origin, rather than to the person of the claimant.

But there are certain other questions depending on
the character of the person who makes the claim with
respect to his relations with others connected with the
structure, which it is proper for us to mention here.
These questions have arisen in reference to the claims
on the part of the owner of the building himself, the
contractor, as he is called, or middle man between the
owner and those more directly concerned in the con-
struction, the sub-contractors, or those whose several
contracts relate only to specified portions of the work
or materials, the master mechanics and material men
employed by the contractor or sub-contractors, and
the mere journeymen and day-labourers.

It has been held that an owner cannot enforce a
claim against his own building, so as to prejudice third
persons. In one of the cases in which the point arose,
a voluntary association of the Order of Odd-Fellows
erected a building for a Lodge, upon premises con-
veyed to trustees for their use. Several members of
the association filed claims and pressed them before
an auditor appointed to distribute the proceeds of
a sale of the premises by the Sheriff. Their liens
were disputed by other creditors. The Court in its
opinion, says: “But that a person can enforce a lien
on his own building, at the expense of third persons
who hold similar liens on it for debts contracted by
the former to the latter, is not reconcileable with law
WHO MAY HAVE THE LIEN. 59

orequity. At law, the lien of the owner would merge
in the property, since no man can be both debtor and
creditor; and equity would not uphold it, in order to
place in the hands of the owner himself, a portion of
that fund which ought to go to his creditor, whose
debt was contracted on the faith of the fund.”?

In another case, the owner did work upon his own
building, but filed no claim. Other claimants, how-
ever, sought to avail themselves of his work to give
their own a relation back which would cut out a judg-
ment: Huston, J., says:—“As to what was done by
the owner, whether it was propping the walls, or
propping the scaffold and covering the walls, I leave
it out of the case; he got no lien by that, nor could
he acquire any lien by any work he could do: his
work is not within the law.” “If his work could cre-
ate no lien in his own favour, it is not easy to see
how it can, by relation, carry back the lien of other
workmen, so as'to over-reach and cut out the judg-
ment creditors of the owner.”?

In the first of these two cases, the Court say: “It
is possible that persons jointly owning lots of ground,
and erecting buildings upon them, to which they fur-
nish work and materials, may file liens under the
Acts of Assembly, and maintain them, among them-
selves, on the ground that they are in equali juve, and
to be considered as mutually waiving objections.”
And they only held, that those claimants who were
members of the association should be postponed to

 

1 Babb v. Reed, 5 R. 159.
2 Stevenson v. Stonehill, 5 Wh. 306.
60 WHO MAY HAVE THE LIEN.

those who were not; rather intimating, by the lan-
guage of the decision, that the former might, when
the latter were paid, come in upon the balance.

The court, in these decisions, probably, intended to
cast no doubt upon the right of an owner to purchase a
mechanic’s lien, and keep it alive against his own
property, for his security, in cases similar to those in
which he might purchase a judgment or a mortgage,
and continue its existence for a like purpose.

The next person whose right to file a claim has
been brought in question, is the person ordinarily
called the contractor. He is the middle man between
the owner and those more directly engaged in the
erection, and, generally, has a gross contract for the
entire building. He employs the workmen and buys
the materials, and is, personally, their debtor for all
that they do or furnish. Such intermediate agents
are very common.

In the Act of 1803 no provision was made for any
case in which the owner was not the debtor. A claim
could be filed only for a debt “contracted by the
owner or owners.” The contractor, in the present
sense of the term, was, not only, not mentioned, but
his interposition between the mechanic and the owner
would have prevented the application of the Act, and
deprived the claimant of his lien.

In the case of Steinmetz v. Boudinot, the mechanic
had made no contract with the legal owner of the pre-
mises against which he filed his claim, but with one
to whom the owner had covenanted to convey, on
ground rent, and who was erecting the building. The
WHO MAY HAVE THE LIEN. 61

Court say, upon this point: “But, whether the defen-
dant was owner, or not, was immaterial, unless he
contracted the debt. When this Act of Assembly was
made, it was very common for the proprietors of ground
to contract with a mechanic of character, for the
building of a house. The proprietor paid a certain
sum of money for the building, when completed; and
the mechanic purchased materials, and built the house,
on his own credit. Now it is very clear, that, in such
case, the act created no lien.”*

So, also, in Jones v. Shawan, Gibson, C. J., says:
“By reason of the novelty of the subject, it happened,
that the first Act fell short of the object, in omitting
to secure those who, bargaining with a middle-man,
had not an opportunity to secure themselves.” *

How far a contractor might have been considered,
or might have become, under the circumstances, an
agent for the owner, in employing mechanics and pur-
chasing materials, and thus have bound the owner as
the debtor, and made a case for the application of the
Act, does not appear to have been considered.

In the Act of 1806, the words, “by the owner, or
owners thereof,” were omitted, and “the lien was ex-
tended to all cases of work done, or materials fur-
nished, for a building, whether on the credit of the
owner or not.”®

The Act of 1806, however, did not expressly speak
ofa contractor. That of 1808 pointed more distinctly

 

138. &R. 542. See Carson v. Boudinot, 2 Wash. C. C. R. 33.
24 W. &S. 264. ® Steinmetz v. Boudinot, 38. & R. 543.
62 WHO MAY HAVE THE LIEN.

to him, in its provision for a personal action against
the “debtor, his executors, or administrators,” as dis-
tinguished from a scire facias against the debtor and
owner of the building,’ but still he was not indi-
cated by that name.

In the Act of 1836, the “contractor, architect or
builder, is, for the first time, expressly, introduced into
the system, and recognised as an important party.
His name is required to be inserted in the claim, and
he, of course, becomes a defendant, with the owner.

But though his title is here found, for the first time,
in any enactment upon this subject, it will appear,
from the cases which we shall hereafter cite, in treat-
ing of the parties to the proceedings by which the lien
is enforced, that his position had long been recognised
in the courts.

It was not, however, until after the Act of 1836,
that the question directly arose, whether he was with-
in the benefit intended by the law, and could, him-
self, file a claim against the owner.

In a decision made in 1842, Gibson, Ch. J., in de-
livering the opinion of the court, says: “In a case like
this, where the claimants were themselves the con-
tractors, it is not easy to comprehend the prayer for
direction, that a claim can be filed only against the
claimant and the contractor together.

“Tfit be meant to show that the plaintiff had no right
to file a claim at all, it was properly put; for it is he
who has found the labour or materials, and not he who
has ordered it, that is entitled to the lien. Were the
contractor as well as the mechanic. or material men,
WHO MAY HAVE THE LIEN. 63

allowed to file, there might be double liens and possi-
bly double recoveries, which the law does not tolerate.
By reason of the novelty of the subject, it happened
that the first Act fell short of the object in omitting
to secure those, who bargaining with a middle man,
had not an opportunity to secure themselves,”’ “in con-
sequence of which it was displaced by the Act of 1806,
which provided for those who directly furnished mate-
rials and labour, and not for the middle man, who took
his own security, and furnished nothing but his super-
intendence and skill as an undertaker. Indeed, so
different is his position as a contractor, from that of a
claimant, that his name is required to be inserted in
the claim as a respondent. The plaintiffs, therefore,
had no right to file for any thing furnished pursuant
to their contract as undertakers; though they might
have done so for any additional work or material di-
rectly furnished by themselves.” *

In the case of Hoatz v. Patterson, the same con-
clusion was reached. Rogers, J., in delivering the
opinion of the court, says:—“ The point is not new, for
it has been, already, virtually decided in Jones v.
Shawan, (4 W.&S. 257.) One who furnishes nothing
but his superintendence and skill as an undertaker,
has no right, as is there held, to file a lien for any
thing in pursuance of his contract, as such. Although
the observations of the Chief Justice seem to be re-
stricted to a superintendent merely, yet the case
really was, in every essential feature, identical with

 

1 Jones v. Shawan, 4 W. & 8. 264.
64 WHO MAY HAVE THE LIEN.

this. The contractor agreed to furnish all the mate-
rials and erect the buildings for a fixed price, and it
is to such a state of things that the remarks were in-
tended to apply. The remark that he who found the
labour or materials, and not he who ordered it, is en-
titled to the lien, applies in all its force here. It is
not intended to deny, that where there is a special
contract, a person who furnishes materials or finds
labour, may have a lien against the buildings notwith-
standing; but, can the same individual stand in the
double character of contractor and material man?
We see no good reason that he should. If he is en-
titled to file a lien, it must be when the contract is
made; for it is very plain, that nothing that he can
do afterwards, can alter his position, nor can he, under
the pretext that he furnished the materials, as well as
superintended the work, burden the property with a
double lien. What is it to the owner, in what way
he procures the materials or finds the labour, whether
it be by purchase, or out of his own stores; whether
by his own labour, or the labour of others whom he
hires for that purpose? The owner has a right to
take it for granted, when there is no stipulation to the
contrary, that the contractor is satisfied with the se-
curity for the faithful performance of the contract; for
when the bargain is made, or before he commences the
work, is the proper time to exact real or personal se-
curity, if he requires it, or to depend, as he may in
many cases, with confidence, on the known ability and
integrity of the owner. As this case does not, as we
apprehend, come within the mischief, we are unwilling
WHO MAY HAVE THE LIEN. 65

to extend its operation by construction; for, without
being additionally burdened, already, are owners, de-
sirous of improving their estates, exposed to great
risks, which can only be avoided, if at all, by extreme
care and great caution.

“The argument of the plaintiff's counsel, also adds
strength to this view of the law, as he has clearly shown
the difficulty of setting down the exact time when
each item is furnished for the work or labour per-
formed; a condition expressly enjoined by the Act,
and held essential in several cases. In the case in
hand, there is no colour for the suggestion, (even if
that would alter the law,) that the contractor was en-
gaged in the business of supplying materials, or that
the work was performed by his own hands. The ma-
terials were obtained by purchase, as they were need-
ed, or in the way provided in the agreement. He
hired master-workmen, as the master-mason, for in-
stance, to perform the labour, he being responsible for
the whole, and they acting under his superintendence
and direction. This is mentioned as an ingredient in
the case, although, as before observed, it would make
no difference, in principle, even if he had, in whole or
in part, furnished the materials from his own stores.
There would, in either case, be the same inconveni-
ence arising from double liens and double recoveries,
and the same incongruity, in the same person being
both plaintiff and defendant. It would present a cu-
rious spectacle of legal incongruity, if the master-
mason, for example, should file his lien against the
owner and the contractor, and the contractor should also

5
66 WHO MAY HAVE THE LIEN.

file his lien against the owner, for the same claim. But
this is the effect of the position contended for. It is
impossible, however, to believe that the legislature
ever contemplated such a legal absurdity.”*

In Bolton v. Johns, also, Gibson, C. J., says:—“I
mean not to go into a formal defence of those deci-
sions; but if ever human statute disclosed an intention
not to be mistaken, that statute disclosed an intention,
that the contractor whom it ordered to stand as a re-
spondent, should not, in any case, assume the atti-
tude of ademandant. And there was cogent reason
why he should not; for, unlike those who dealt with
him as a middle-man, he had an opportunity to secure
himself by his contract with his employer, and if he
omitted to embrace it, the fault was hisown. It was
the frequency of loss sustained by mechanics and deal-
ers, in consequence of the employment of this kind of
agent, which first induced the legislature to give them
a lien on the building; for if the owner of the ground
had continued to be his own master-builder, as he was
in the primitive days of the province, those who dealt
with him would have had no juster claim to such a
lien, than the ploughman of another’s field would have
to alien on the crop. It was not the merit of the con-
tractor, but the loss he occasioned, that gave rise to
the system; and the object of it was, not to secure
him, but to secure those who had else been put in
jeopardy by him. But if, to their legitimate liens, he
had been allowed to add a particular lien of his own,

 

15 W. &S. 538.
WHO MAY HAVE THE LIEN. 67

there would have been a scuffle between him and the
furnisher of the labour or material, for the pay, in
which the court would have been employed to deter-
mine, not whether the article had been furnished on
the credit of the building, but whether the contractor
had made it his own by having paid for it; and that
would have involved a variety of matter of account,
set off, and dealings between him and his compe-
titor.” *

The reasons for excluding the contractor from the
benefit of the law, as far as we can gather them from
these decisions, are numerous.

He does not supply materials or perform work, but
merely orders them. He furnishes nothing, himself,
but skill and superintendence, for which no lien is
given. The Act contemplates him only as a defen-
dant in the proceeding, and not as a plaintiff. If he
is allowed to file a claim, double liens will be filed for
the same work and materials, and there may be double
recoveries. He shows by his bargain with the owner,
from whom he may demand security, if he pleases,
that he really gives no credit to the building. If he
is entitled to a lien, it must be, when he has made the
contract; for the liability of the owner is complete,
then. These are the suggestions of the judges whose
opinions we have quoted.

But it will be observed, that it is not, in any one of
these cases, put, distinctly, on the ground, that no one
can file a claim, whose work is done, or materials fur-

 

15 B. 150.
68 WHO MAY HAVE THE LIEN.

nished under a special contract. On the contrary,
Rogers, J., says: “It is not intended to deny that,
where there is a special contract, a person who fur-
nishes materials, or finds labour, may have a lien
against the buildings, notwithstanding.”

How that doctrine came, at length, to be asserted,
we shall show in another chapter, when we come to
speak of the nature of the debt for which a claim may
be filed. We are, now, only presenting those views of
the subject which depend upon the character and re-
lations of the parties.

There was one further step, which these decisions
rendered inevitable, and that was soon taken.

Tt is said in Bolton v. Johns, referring to the pre-
vious decisions just noticed: “No more had been de-
termined, than, that the master-builder, or contractor
for the building, could not file for his services and
skill, in exclusion of the mechanic or material man,
for whom alone the statute had provided.”

This was a mistake. In Witman v. Walker, the
claimant had made a written contract to do all the
marble work for a house, and the same objection was
urged against his claim, as had prevailed against those
of the contractors for the whole house. The court cite
the cases upon which we have commented, in this con-
nexion, and say: “It is not easy to perceive any dif-
ference, in principle, in the circumstance, that the con-
tract is not for the whole building, but for a particular
job or piece of work, as here, to put up the marble
work of two houses, and furnish marble mantels. The
relation of the parties is the same, and similar incon-
WHO MAY HAVE THE LIEN. 69

veniences and incongruities would ensue to those
pointed out in the opinion delivered by Mr. Justice
Rogers, in Jones v. Shawan, if the same individual
might stand in the double capacity of contractor and
material man.”*

These decisions were, however, all rendered inappli-
cable by the Act of April 16th, 1845, which declared
that the Act of 1836 should, “according to the true
intent and meaning thereof, extend to and embrace
claims for labour done, and material furnished and
used, in erecting any house, or other building, which
may have been or shall be erected under or in pur-
suance of any contract or agreement for the erection of
the same,” and should “be so construed;” and that
“no claim which has been or may be filed against
any house or other building, or the lien thereof, or
any proceeding thereon, shall be in any manner af-
fected by reason of any contract having been entered
into for the erection of such buildings, but the same
shall be held as good and valid, as if the building
had not been erected by contract.’ A proviso, how-
ever, was appended to the enactment, saving from its
effect any case theretofore decided by the Supreme
court, or in which the proceeds of the sale of any
real estate had been distributed by the decree of any
court, from which no appeal had been taken.

But a case in the District Court for the city and
county of Philadelphia, in which the decision was made
long after the Act of 1845, seems to show that, though,

 

19 W. &§. 187.
70 WHO MAY HAVE THE LIEN.

under its provisions, the contractor or sub-contractor
may file a claim, he cannot use it against those whom
he employs. In that case, the contractor appeared
before the Auditor, and claimed his pro rata share of
the fund. The court say:—“This contest is not be-
tween the owner and contractor, but between the con-
tractor and the mechanics and material men, with
whom he dealt, and to whom he is personally responsible.

“The letter of the statute puts all the lien creditors
under it on the same footing, directing them to be
paid, pro rata, when the fund derived from the Sheriff’s
sale, and applicable to their claims, is not sufficient to
pay the whole. But this is, manifestly, unjust, when
extended to the contractor, whose personal liability
would, by this means, be substituted for the substantial
security of the real estate of the owner; or, which is
the same thing in effect, the value of that real estate
in money deposited in court. This works the very
mischief which induced the enactment of the original
Act in 1803, and has kept the system alive ever since.

“We know of no other instance in which this ques-
tion has arisen. Babb v. Reed, 5 Rawle, 151, is some-
what analogous. There, a number of persons as-
sociated themselves, under the name of the “West
Chester Lodge, No. 42, of the Independent Order of
Odd Fellows.” They purchased a lot of ground, which
was conveyed to Trustees, for the benefit of the asso-
ciation. The association undertook to erect a Hall for
its meetings, several of the members contributed labour
and materials in its construction, and third persons
furnished assistance, in like manner. The means
WHO MAY HAVE THE LIEN. 71

of the association fell short of the cost of the building.
The ground, itself, had been bought on credit, and a
mortgage caused the property to be sold by the sheriff.
The proceeds were brought into court‘for distribution.
The claimants of the fund consisted of two classes: 1,
of members of the fraternity; 2, of creditors, who
were not members. All the claims were for work
done, or materials furnished for the construction of
the building. The Supreme Court held, that the whole
of the said claims were embraced by the Mechanics’
Lien Act, and that if the fund was adequate to pay
the whole, it ought to be so applied; but that the
claims of those who were not members, were entitled
to a preference over the claims of such as were mem-
bers; and, it appearing, that the payment to those who
were not members would absorb the entire fund, the
decree was, that they only could be paid.

“The distribution of the fund in the case before us,
we think, should be made upon the same equitable
principle. Between the contractor and the owner of
the buildings, unless otherwise specially provided, in
their agreement, the contractor has a right to file his
claim for whatever may be due him. But, in the dis-
tribution of the proceeds of a sale of the buildings, the
contractor can receive nothing, until the lien creditors,
to whom he is personally responsible, have been paid
in full.

“The exception of Jacob Showaker, the contractor,
is, therefore, dismissed, and the report confirmed.”?

 

1 Large v. Millette, 12 Leg. Int. 6.
72 WHO MAY HAVE TUE LIEN.

It is proper, in this connexion, to refer to a decision
of Lowrie, J., in the District Court of Allegheny county,
in reference to the relative positions of the contractor
and those whom he employs, whether sub-contractors
or otherwise.

In that case, the owners pleaded,—“ That the debt
claimed ought not to be levied of said house, because
the plaintiffs were sub-contractors, under one J. M.,
(impleaded with the owners,) who had undertaken
to erect said house for the owners, and to furnish the
materials, and to receive payment therefor, partly, in
merchandise, and, partly, in money, in one, two and
three years after the completion of the building.”
To this plea the plaintiff demurred. The court, in
delivering its opinion, says :—

Secondly, Are sub-contractors, in the erection of a
house, affected, as to the time and mode'of payment,
by the contract made between the owners and the
builder?

“The law creates a lien ‘for all debts contracted
for work done, and materials furnished’ for the erec-
tion of the house; and this phraseology proves, that
this lien, like all analogous liens, is founded on con-
tract expressed or implied. And here, contrary to the
rule as to other liens, the law, in another clause, gives
a lien, even in favour of a sub-contractor. On what
principle is it founded?

“Tt must be on contract with the owner, either di-
rectly or indirectly; for it is only thus, that one man
can ever acquire a claim upon the property of another.
And, in this way, the connexion is plain. The owner
WHO MAY HAVE THE LIEN. 73

contracts with a builder, to erect a house, on certain
terms, and the builder makes a sub-contract with a
material man, to supply the materials. The chain
of relationship consists of but two links, the second
of which hangs by the first, and will bear no greater
weight. The sub-contractor comes in by reason of his
direct contract relation to the builder, and the right of
lien of the former, for his claim, is pro tanto, substitution-
ary to that of the latter. As against the owner, the
terms of the principal contract, and, as against the
builder, the terms of the sub-contract, limit and qua-
lify the lien of the sub-contractor, so as to prevent his
claim from abating the terms of either contract. And
it is because the lien of the sub-contractor is by way
of subrogation to the right of the builder, that the
latter is made a party to the proceeding.

“The justice of this limitation of the right of the
sub-contractor is very plain; for, if it were otherwise,
no man could ever build a house, with any certainty
as to the cost of it, unless he employed all the work-
men, and purchased all the materials himself. He
might find it built of an entirely different character
from that contracted for, and yet, have to pay the
sub-contractor, though the builder could have no claim
upon him. He might contract for a house at $1000,
and find liens established against it for $2000.

“Tf such were the case, no prudent man would make
a contract to have a house erected, except with a
builder who had ample means to secure him against
liens, and such men, only, could obtain the most desi-
rable contracts. The allowance of any lien at all to
74 WHO MAY HAVE THE LIEN.

a sub-contractor, is a special privilege, granted, only,
in case of buildings; and it is not unreasonable to re-
quire him to look to the principal contract, to ascertain,
whether it is such as to justify him in becoming a
contractor under it.

“The argument, that the law and the principal
contract make the builder the agent of the owner,
proves nothing. Suppose the fact to be so; still his
agency is only special, limited by the terms of the
contract. He is to employ men to build the house, in
the manner and on the terms there indicated. For
anything beyond that, he exceeds his authority, and
does not bind his principal. If, under a contract
to build a brick dwelling house, he erects a wooden
stable, Ido not see how he or his sub-contractor can
claim any lien. Yet the latter could do so, if the sub-
contract were not dependent on the principal one.

“To construe the law as is contended for by the
plaintiffs, would be to place the owner in the relation
of a protector to all those who contribute to the erec-
tion of the house. But the law treats every man as
capable of taking care of himself. It constitutes no
relation of protection or dependence among men who
have arrived at legal discretion. It looks only to their
contract relations, and adapts its remedies to the en-
forcement of these; and if necessary for this end, it
takes hold of the debtor's effects in the hands of other
persons. In cases like the present it does more; for
it gives a contingent lien on those effects, in advance
of their being earned.” *

 

* Campbell v. Scaife, 8 Leg. Int. 74.
WHO MAY HAVE THE LIEN. 75

Tf this decision be the law, it establishes a most im-
portant doctrine. Every person employed by a con-
tractor is presumed to have seen his contract, and as
against the owner, and his house, his claim cannot rise
beyond it, or depart from its terms.

‘We believe, however, that this decision is not re-
garded in practice or usage. And, indeed, the cases
which we shall hereafter cite, in treating of the evi-
dence which the claimant must adduce, seem to con-
travene its principles. They appear to allow the sub-
contractor or master mechanic or material man to
prove and recover, upon the contract made with him,
or, if there be no such contract, upon the quantum
meruit,*

We now come to the position of the master mechanic
or material man, who is supposed to have made no
contract for any particular portion of the building,
which would bring him within the description of the
contractor or sub-contractor, of whom we have just
treated, but who, yet, may, notwithstanding, be em-
ployed under a contract. He may be paid by the day,
or by measurement, or according to the quantity de-
livered.

There has never been any question about the right
of this class to the lien. The only difficulty has been
to distinguish them from the next class of journeymen
and common hands or day labourers.

If the position of the contractor, under the Act of
1845, leads to the danger of multiplying and doubling

 

* See Post, Chapter on Evidence.
76 WHO MAY HAVE THE LIEN.

liens, how much more would arise, if every individual
whose labour or materials were expended, could file
aclaim. The day labourer, who digs the foundation,
or carries a hod; the carter who hauls the brick, stone,
lime or lumber; every one, however subordinate, would
add his mite to the mass of incumbrance, overwhelming
the premises. The costs, alone, would be a burden not
to be borne.

It was, therefore, settled, at an early period, that
there was a class of subordinates, employed by the
master mechanic and material man, who could not file
aclaim. But it has been no easy task to define the
limit of that class;—to say, in each case, who is the
subordinate.

It was held in Cobb v. Traquair, in the District
Court for the city and county of Philadelphia, so early
as 1819, that “only the eee of each branch or
trade,” had a lien.*

But the fullest discussion of the subject is found in
the case of Jobsen v. Boden, in which Jobsen, the con-
tractor for a mill, hired Boden, by the day, to work as
a carpenter and millwright, for a stipulated price. We
give the decision of Bell, J., at length. He says:—
“As early as the year 1819, it was decided by the
District Court of Philadelphia, that a journeyman me-
chanic, employed in working on a building, under the
original contractor or master mason, could not file a
lien against the erection, under the Act of 1806, not-
withstanding the general or comprehensive words of

 

‘I Frank. Inst. Journ. 97. See also, the opinion of Randall, J.,
Barnes v. Wright, 2 Wh. 196.
WHO MAY HAVE THE LIEN. 77

the statute, which, taken literally, would seem to in-
clude every grade and class of workmen, from the chief
builder, down to the least important day labourer;
Cobb v. Praquair, 1 Frank, Jour. 97. The doctrine
was repeated by Judge Randall, then of the Common
Pleas of Philadelphia county, in Barnes v. Wright, 2
Wh. 196; and, indeed, it seems to have been every
where recognised by the profession, as a well estab-
lished principle, firmly founded in reasons of public
policy and convenience. The Act of 16th June, 1836,
which embodies and supplies former enactments on
the subject of mechanics’ liens, is not broader in its
terms descriptive of the persons entitled to create a
lien, than is the Act of 1806. It cannot, therefore,
be pretended, that the latter Act enlarges the circle of
those upon whom the first statute conferred the pri-
vilege of lien, by admitting to a participation a class
of workmen not before contemplated. Had such been
the intention, the legislature, doubtless acquainted
with the prior adjudications and the prevailing opi-
nion on the subject, would have taken care to mani-
fest it by unequivocal language. But in this respect
the only difference between the two enactments is that
the older of them, after naming certain trades and oc-
cupations which should be entitled to the benefit of
its provisions, extends them, to any other person or
persons employed in furnishing materials for or in
erecting or constructing such house or other building;’
while the younger, rejecting the special enumeration
as redundant authorizes, generally, a lien for the pay-
ment of all debts contracted for work done or mate-
78 WHO MAY HAVE THE LIEN.

rials furnished for or about the erection or construc-
tion of any building. That, in this feature of them,
the statutes are equally extensive, is, indeed, shown by
Savoy and Salter v. Jones, 2 Rawle, 343; in which it
was held, that the Act of 1806 is not confined to the
classes of persons specially enumerated in it, but em-
braces all persons employed, either as builders, or ma-
terial men. As, then, the law stood, under these
enactments, it is very certain, one who may be merely
engaged as a journeyman, was not within their spirit,
though, perhaps, comprehended by the letter. It is,
however, supposed by the plaintiff below, that a change
was effected by the 5th section of the Act of 16th
April, 1845, (Dunl. Dig. 951,) which declares, that the
Act of 1836 shall be construed to extend to, and em-
brace claims for labour done, and materials furnished
and used in erecting any house or other building,
which may have been or shall be erected, under or in
pursuance of any contract or agreement for the erection
of the same; and that no claim which has been or
may be filed against any house or other building, or
the lien thereof, shall be affected by any contract
having been entered into, for the erection of such
building; but the same shall be held as good and va-
lid, as if the building had not been erected by con-
tract. But it is notorious, that the object of this de-
claratory Act, was, not to extend the remedy of lien to
the wages of subordinate workmen, but to correct a
supposed error of judicial decision, committed in the
cases of Hoatz v. Patterson, 5 W. & S., 537; and Ha-
ley v. Prosser, 8 W. & S. 133. In these cases, it has
WHO MAY HAVE THE LIEN. 79

been determined, that one who undertook, by special
contract, to erect a building, for a gross sum, was not
within the purview of the mechanic lien laws; be-
cause, by his agreement, the intention of the contracting
party to rely upon the personal security of the owner,
in the absence of a contrary stipulation, is manifested.
It is perfectly apparent, from the tenor of the Act of
1845, that, notwithstanding the general words relied
on by the plaintiff below, touching all claims for la-
bour done and materials furnished, nothing further
was intended, than to extend the provisions of the Act
of 1836 to actual contractors, whom prior decisions had
shut out from its benefits. Indeed, the general clause
to which I have referred, is not more comprehensive,
and, therefore, not more efficacious, to include all
classes of artisans, than the language employed in
the Act of 1836, which, as I have said, was never
thought to reach persons in the plaintiff's position.
“This restricted construction seems to be abso-
lutely necessary to the safety of the proprietors of
newly erected buildings. Since the Act of 1845, their
property is exposed to a double lien, for the same work
done and materials furnished; one, in favour of the
contractor or undertaker of the erection, and, another,
to secure the master workmen employed by him.
Were the plaintiff's construction of the statute ad-
mitted, to these would be superadded the lien of every
individual workman engaged by the principal, even
for a day, or to the extent of preparing a bed of mor-
tar. This would soon be felt as intolerable. Before
the Act of 1845, it was observed in Hoatz v. Patter-
80 WO MAY HAVE THE LIEN.

son, 5 W. & S. 537, that owners, desirous of improving
their estates, are exposed to great risks, which can
only be avoided, if at all, by extreme care and caution.
To increase these risks, so materially as we are now
asked to do, would be seriously to interfere with the
growth and improvement of our cities and towns,
by interposing obstacles to the march of meritorious
enterprise, and thus, eventually, to injure the work-
man himself. For the introduction of such a rule, a
distinct manifestation of legislative will is necessary.
It is, in our apprehension, far better, for all parties, to
leave the journeyman operative to the security he
most commonly relies on, the personal responsibility
of his employer.”*

But what is the criterion of the position which ex-
cludes the mechanic from the benefit of the law. In
one case, a master brick-layer, who employed hands
to do his work, filed a claim, which was opposed, on
the ground, that he was working at two dollars a day.
But the court was of opinion, “that an agreement, to
receive a stipulated sum, per day,” for services, would
not, “of itself, make the plaintiff a journeyman, so as
to deprive him of the lien.”

And yet, in Jobson v. Boden, the claimant, who was
a carpenter and millwright, not working under a mas-
ter-workman, but employed by the contractor for the
entire mill, was excluded. The only fact appearing
in the report, which distinguished him from hundreds
of others who have been employed by contractors and

 

18 B. 463.
WHO MAY HAVE THE LIEN. 81

retained their liens, being, that he was hired by the
day.

These are all the cases that throw any real light
upon a subject which must, hereafter, give much
trouble, and require distinctions and definitions not
yet announced.

There is another question which has been made,
which affects all these classes, and which we must
not pass by. It is not so likely to arise, in regard to
those doing work, as to those furnishing materials; but
it may be presented as to either.

The Act of 1806 gives the lien to certain mecha-
nics and material-men, by particular designation, and
to “any other person or persons employed in furnish-
ing materials for, or in the erecting and constructing
such house, or other building,” Are this Act and
those which have since been passed, to apply only ta
persons, whose regular and ordinary business is, to do,
the work, or furnish the materials for which a claim,
may be filed; or may any one avail himself of the law,
without reference to his permanent or continuing
trade or occupation?

In the case of Savoy v. Jones, a man filed a lien
for bricks which he held and owned and had furnished
to the house. He was not a brickmaker, however,
and the point was made, that he could not, under the
Act of 1806, file a lien, for that reason. It was ar-
gued, that the word “employed,” used among the ge-
neral words of the Act, meant one whose business it
was to furnish the particular material. The court,
however, sustained the lien. Gibson, Ch. J., in de-

6
82 WHO MAY HAVE THE LIEN.

livering the opinion, says:—“ A lien is given in ge-
neral and comprehensive terms, to every one, without
distinction, ‘employed in furnishing materials for, or
in the erecting or constructing, of any house, or other
building:’ and I cannot imagine, why none but regular
dealers in the article, or workmen bred to the parti-
cular craft, should have the benefit of it. We have
mechanics who can turn their hand to anything; and
there is the same reason for hypothecating the pro-
duct of a bricklayer’s labour, for wages earned as a
carpenter, as there would be for wages earned in his
proper vocation; and a dealer, pro hac vice, would
seem to be as much within the reason of the law, as
if he had no other business.” *

If this was the construction of the Act of 1806, there
can be no difficulty with reference to that of 1836,
which is more comprehensive, still, in its terms.

 

12 BR. 348.
NATURE OF THE DEBT SECURED BY THE LIEN. 83

CHAPTER II.
OF THE NATURE OF THE DEBT SECURED BY THE LIEN.

Tue Act of 1803 gave the lien in respect of debts
contracted “for or by reason of any work done, or
materials found and provided,” “for or in the erecting
and constructing” of any dwelling-house or other
building. The Act of 1808 contains the same ge-
neral words. That of 1836 provides for “all debts
contracted for work done, or materials furnished for
or about the erection or construction” of the building.

The first question, that arises under this head is,
what is included within the meaning of the word
“building”? Being a word of more comprehensive
signification than “house,” or “ dwelling-house,” it, of

course, includes them, and is, therefore, no doubt, used
alone, in the latter Act.

It may, at first view, appear, that a consideration
of the meaning of the word “building,” would be more
appropriate, in treating of “The subject of the lien.”
A closer examination, however, will show, that the
building is the subject of the lien, only incidentally, and
as a part of the land; that its most important aspect
is in affecting the land, by giving rise to the debt; and
that it is only by reference to the building, that the
nature of the debt can properly be defined or described.

It has been expressly held, that a church is within
84 NATURE OF THE DEBT

the meaning of the Acts.’ And, in several cases, claims
have been filed against buildings erected for this pur-
pose.”

Claims have, also, been filed, without any objection,
on account of the character of the building, against
an Odd Fellows’ Lodge,® a School House,’ a Brewery,”
a Distillery,° Stores and Warehouses,’ a Theatre,* Mills
of various kinds,’ a Factory,” a Boiler and Engine
House," a Tan House,” a Furnace,” a Kitchen,” a
Barn.” These cases have not, all of them, it is true,
the force of express decision, but they serve to show
the usage in this respect.

There are other cases in which questions have arisen
with reference to the ordinary out-houses, connected
with a dwelling. But to these we shall refer under

 

* Presbyterian Church v. Allison, 10 B. 418.

? Beam v. First Meth. Ep. Church, 5 Law J. 286. Noll v. Swine-
ford, 6 B. 187. Armstrong v. Ware, 8 H. 519.

3 Babb v. Reed, 5 R. 159.

* Dickinson College v. Church, 1 W. & 8. 462, Church v. College,
8 id. 221.

5 Gray v. Holdship, 17 8. & R. 418.

* Yearsley v. Flanigan, 10 H. 489.

7 Bruner v. Sheik, 9 W.&8.119. M*Donald v. Lindall, 3 R. 492.
Croskey v. Coryell, 2 Wh. 223.

8 The case of the Olympic Theatre, 2 Br. 275. Mitchell v. Evans,
id. 829.

* Wademan v. Thorp, 5 W.115. Washburn v. Russell, 1 B. 499.
Holden v. Winslow, 7 H. 452. Keppel v. Jackson, 8 W. & 8. 820.
Jobsen v. Boden, 8 B. 463. Morgan v. Arthurs, 3 W. 140.

20 Church v. Griffith, 9 B. 117. 1 White’s Ap. 10 B. 242.

Y Anshutzv. M‘Clelland, 5 W.487. M‘Clelland v. Herron, 4 B. 63.

18 Hoatz v. Patterson, 5 W. & S. 587.

“ Hampton v. Broom, 1 M. 241. 1 Werth v. Werth, 2 R. 152.
SECURED BY THE LIEN. 85

another head. They bear upon the point, whether the
erection of such an appurtenant, could subject the main
building to the lien, rather than upon their position as
isolated structures, under the law, were the claim for
work done upon them, only, and filed against them,
alone.

But there is a case which it is, perhaps, proper to
mention here.

In Barclay’s Appeal, a claim was filed for work done
for and about the erection and construction of a build-
ing “and appurtenances.” The Court held the claim
bad, and say: “But an appurtenance may be a yard,
an alley, a cistern, a conduit pipe, an ice-house, a
smoke-house, a privy, a stable or other out-house, dis-
tinct from the principal building mentioned in the
written claim, and, consequently, not within the pur-
view of the lien laws.” *

If the court, by this decision, without reference to
the question, whether such houses were, properly, ap-
purtenances to the main building or not, meant to de-
cide, that as isolated structures, they were not within
the purview of the lien laws, it is in conflict with cer-
tain of the decisions we have mentioned, at least, with
that of Werth v. Werth, in which a claim was filed
against a barn for work done to it, alone; and upon the
sale of the “plantation” upon which it was erected,
and distribution of the proceeds, the court decided,
“that the lien was to be confined to the building erected
and the land covered by it, with all the necessary

 

11H. 496. But see Gaule v. Bilyeau, 1 Casey, 523.
86 NATURE OF THE DEBT

roeans of enjoying it, in the usual way,” and appoint-
ed a commissioner to report the proportionate value
of the building, in reference to the whole tract.

We find, in earlier cases, a claim filed, against build-
ings erected by or for the Directors of the Poor, and no
objection seems to have been made, on the ground of
the character of the building.’ But it has been, since,
expressly decided, that the public houses of a county,
such as the court houses, public offices and public
schools, are not within the meaning of the lien laws.
This doctrine is not based upon the nature of the
building, with reference to its use, or dignity, or in
respect of size or construction, but upon grounds of
public convenience and necessity, which would pre-
vent any execution against such edifices, and, there-
fore, render nugatory any claim or proceeding there-
upon.?

By an Act of April 16, 1838, the provisions of the
Act are extended to “wharf-builders and all con-
cerned in the making or constructing of the same.”

By an Act of April 9th, 1849, which applies only
to the counties of Columbia and Elk, the law is ex-
tended “to every fixture in and about iron works and
mines, and to every bridge and building, where work is
done, or materials furnished in the construction of such
fixture, in and about mines or iron works, bridge or
building, for any corporate body, or for a contractor

 

1 Church v. Davis, 9 W. 304. Davis v. Church, 1 W.& 8S. 240.
2 Wilson v. The Commissioners, 7 W.& 8.197. Williams v. The
Controllers, 6 H. 277.
SECURED BY THE LIEN. 87

in the employment of a corporate body.” The pro-
vision is restrained, however, to cases of work done,
or materials furnished, after the passage of the Act, or
where, having been done before the passage of the
Act, a lien was filed within six months after the last
work was done, or the last materials furnished. The
remedy prescribed for such a lien, unless it was one
existing or allowed under former laws, is the writ of
sequestration.

By an Act of April 21, 1854, the Act of 1836 and
its supplements are “extended to the improvements,
machinery and fixtures erected by tenants of coal lease
estates, on lands of others, in the county of Schuylkill.”

By an Act of April 21st, 1856, the same Acts are
‘“‘extended, as fully as the same are now applicable to
buildings, to every steam engine, coal breaker, or parts
thereof, pump-gearing, hoisting-gearing, fixture or
machinery, in and about mills of any kind, iron or
coal works, coal mines and iron mines.”

But, without reference to the use, size or dignity of
the structure, if it be merely personalty, in its legal
character, as to the parties concerned, it will not be a
“building,” within the meaning of the law.

In Church v. Griffith, the property of lessees for
years of land, on which they were erecting a shovel
factory, was sold by the sheriff under a writ of fiert
Jacias. Mechanics who had furnished bricks and cast-
ings to the lessees, for the stacks and furnaces, claimed
the proceeds, under their supposed liens. The court
say:—“In Lemar v. Miles, 4 Watts, 330, we held,
that a steam engine, set up by a lessee of salt works,
88 NATURE OF THE DEBT

might be seized and sold, by an execution creditor, as
personal property. In that case, the question was, in
effect, between the landlord and his tenant, who bene-
fited by having his debt paid out of the property; in
this, it is between the creditors of the lessees, some of
them claiming the property as leasehold, by virtue of
mechanics’ and material men’s liens, and some of them
claiming it, as unbound personal chattels. The build-
ing was erected on a lot, under a lease for years; and,
being erected on a chattel estate, it was, itself, a chat-
tel; so that the case is stronger, than if it were be-
tween the lessor and the lessee, in respect to whom,
fixtures for manufacturing purposes, are chattels,
only, for the encouragement of trade. In Dalzell
v. Lynch, 4 W. & S. 255, a lease for years was held
to be legally sold on a fier? facias, without inquisi-
tion or condemnation. The fixtures, in this case, are,
consequently, to be treated as chattels, not only, in re-
gard to the lessor, but in regard to every one else.
By the Act of 28th of April, 1840, a mechanic’s lien
is restrained to the estate which the contracting owner
had in the soil; but it is not perceived how a chattel
interest in the soil can be subject to such a lien any
more than how it can be subject to the lien of a judg-
ment. The stat. Westm. 2, which, indirectly, gave
the judgment creditor a lien, gave him execution of
the debtor’s lands, which subsequent interpretation
fixed to be the lands held at the time of the judgment;
the Act of 1836, which creates the lien in question,
gave the mechanic or material man execution of the
building to which he contributed his labour or mate-
SECURED BY THE LIEN. 89

rials, without regard to the quantum of the estate, held
by the contracting owner; and, had the law remained
on that foot, the plaintiff, in a case like the present,
would have recovered the fee simple value. All the
statutes on the subject before 1840, treated the estate
to be bound, as a fee. The scire facias prescribed by
the Act of 1836, and still in use, calls on the con-
tracting owner to show cause why the debt should not
be levied, not of his estate in the ground, but of the
building; the judgment is, that it be levied of the
building, and the levari facias commands the sheriff
to levy it of the building. The notion, that a chattel
can be bound by the lien, separate from the possession,
has not been familiar to us all, and, consequently, could
scarcely have been entertained by the legislature. The
very name of the execution shows, that it was not;
for though chattels may be sold on a levari facias, at
the common law, it had never been used or prescribed,
in Pennsylvania, for the sale of any thing but mort-
gaged land. The common law form of the writ is es-
sentially different from the form of it prescribed by
the Act of 1836. Moreover, the provision for setting
off and selling a reasonable curtilage, with the build-
ing, presupposes the existence of a freehold interest
in the soil, not a chattel interest on the surface of it.
For this reason it was, that we held, in Holdship v.
Abercrombie, 9 Watts, 52, that the lessee of a lot, who
. procured a building to be erected on it, for purposes
of trade, subjected the fee simple of it to liens for la-
bour and materials; and that the chattel interest of
the lessee was not the thing intended to be bound.
90 NATURE OF THE DEBT

The supplemental Act of 1840, was produced, not by
that case, but by Bickel v. James, 7 Watts, 9, in which
it had been determined, that a sale on a mechanic’s
lien, filed against a contracting owner, who held by
articles of purchase, divested, not only, the equitable
estate of the vendee, but the legal title of the vendor.
There, however, the vendee had an equitable fee to
be bound; and the legislature evidently intended to
do no more, than subject it, exclusively, to the lien;
in other words, to contract, rather than extend the
surface of its operation. The principle of Holdship
v. Abercrombie, had been asserted in Anshutz v.
M‘Clelland, 5 Watts, 487; yet the legislature did not
move in the matter till four years had gone by; and
what was its eventual enactment? No more, than,
that the Act of 1836 shall not extend to any other or
greater estate in the ground, on which any building
may be erected, than that of the person in possession,
at the time of commencing the said building, and at
whose instance the same is erected.’ Now, though a
lessee has an estate in the land, it comprises no more.
than his interest in the term, and gives him, merely, a
tight to occupy the ground, for the time agreed, which
is one thing, and not a right of property in the chat-
tels put upon it, which is another. At most, he could
only sell the use of them, for the term. The interest
in the lease is a right of occupancy, and, hence, it is a
chattel real; but fixtures, which are not part of the
freehold, as to the lessor or any one else, are chattels
personal, which cannot be bound as a part of the
lessee’s estate in the ground, even if his lease were
SECURED BY THE LIEN. 91

bound. That they were separate property, in this in-
stance, is proved by the fact, that they were sold, on
writs of jiert facias, by antagonist creditors. Were the
tenant himself to sell his ‘estate in the ground,’ no
more would pass than the wse of the building and fix-
tures; and it is not easy to see how the sheriff could
sell more. By selling the lease, he would part with no
more than what he had derived from the landlord; not
the chattels procured by him to make it available. At
the extinction of the chattel real, in the one case, and in
the other, the chattels personal would remain on the
ground as the property of him who put them there.
As to the property in contest, the consequence is, that
the plaintiffs would not have been more secure, with
a lien on the leasehold, than they are without it. The
auditor made a distinction between such parts of the
castings as were fixed, and such as might come under
the denomination of tools; but as all were chattels,
whether fixed or loose, it was a distinction without a
difference. Against the landlord, the creditors might
treat the fixtures as chattels; and they have, at least, an
equal right to treat them as such, against those who do
not even pretend to claim them as freehold. Strictly
speaking, the question is not, whether the estate in
the lease was bound by the lien, but, whether the ab-
solute property in the building and materials was; yet
as the cause has been argued on the broadest ground,
it is proper to say, that nothing which is merely lease-
hold, is now within the purview of the Act of 1836.
It might, perhaps, be thought politic and proper to ex-
tend such a lien to both; but to do so, would require
92 NATURE OF THE DEBT

further legislation, which we are incompetent, if we
were willing, to supply. The auditor’s report, there-
fore, was properly corrected.”*

It is, perhaps, proper to refer, here, to several prior
cases, growing out of the same facts, which, appa-
rently, conflict with this decision. In these, a tanner,
a lessee for six years, erected a tan-house, for the
purposes of his trade. In the latest of them, the
question arose, and was discussed, what estate passed
by a sale under a mechanic’s claim, for work and ma-
terials for the tan-house, done and furnished, at the
instance of the lessee. But the point was not made nor
considered that arose in Church v. Griffith. If it had
been, however, a distinction might have been drawn.’

In Haworth v. Wallace, Gibson, Ch. J., confirms the
decision in Church v. Griffith, and says, in regard to
M‘Clelland v. Herron, that “no more was ruled than
that a levy and sale of a term did not pass the fee.” *

In White’s Appeal, the sheriff, under a writ of fiert
facias, had sold the interest of the lessee of certain coal
mines, with the boiler, engine-house, &c., which he
had erected. A mechanic claimed a priority, under
his supposed lien for work done upon the boiler and
engine-house. The lessee held under a lease for ten
years of the right to mine coal, with the privilege of
removing the structures erected by him, at the end of
the term. The lessor reserved the right to farm the

 

19 B. 118.

? Anshutz v. M‘Clelland, 5 W. 487. Holdship v. Abercombie,
9 W. 52. M‘Clelland v, Herron, 4 B, 63.

§2.H. 121.
SECURED BY THE LIEN. 93

surface of the land, if he did not interfere with the
operations of the lessee. The court held the structures
in question to be only personal property, and refused
to recognise the lien.*

It was, perhaps, with a view to meet such cases, in
the locality designated, and to prevent the hardship to
the mechanic under these decisions, that the Act of
April 21st, 1854, extended the benefit of the Acts “to
the improvements, machinery and fixtures erected by
tenants of coal lease estates, on lands of others, in the
county of Schuylkill, and to all mechanics and mate-
rial men doing work and furnishing materials there-
for,” with the proviso, however, that the lien should
only extend to the interest of the tenants therein.

We ought, further, to observe, however, in respect
to the doctrine of these cases, that, from the language
of the court, a different ruling would, probably, have
been made, prior to the Act of 1840. In Church »,
Griffith, Gibson, Ch. J., more than intimates, that under
the Act of 1836, alone, a tenant of a leasehold in-
terest could bind the freehold, by erecting buildings,
even for the purpose of his trade.

The case of Gaule v. Bilyeau ought not to be omit-
ted in this connexion. The person against whom the
claim was filed, in that case, had leased the premises,
for seven years, with the express privilege of pur-
chasing a part of it, upon a designated ground rent,
at any time within three years. The lessee erected
the building which led to the lien, and, very soon

 

"10 B. 252.
94 NATURE OF THE DEBT

afterward, availed himself of his privilege of purchasing,
and received a deed for the property. The court
recognises the cases to which we have just referred,
but distinguishes the one before it from them.
Lewis, Ch. J., who delivered the opinion, says:—
“Bat, in this case, the tenant had a right, by the con-
tract, to take a certain part of the premises, particu-
larly described, on ground rent, at an annual sum, fixed
by the contract. No words of inheritance are neces-
sary in an executory contract. It is sufficient, if it be
manifest from the instrument, that a fee simple was in-
tended to be conveyed, This was sufficiently indicated
in the contract, and the parties, subsequently, carried
it out, by a conveyance in fee, subject to the ground-
rent agreed on. It is not likely, that the tenant would
have erected the tavern-house, and out-buildings, if he
had had no certainty of enjoyment, beyond the term
of seven years. It was his right to a conveyance in
fee, that induced him to cause the erections; and it
may well be presumed, that it was also that right
which the material-men relied on, when they furnished
the materials for building on the premises. We are
of opinion, that, at the commencement of the building,
the tenant had an equitable estate in the land, which
made the buildings subject to a mechanic’s lien.”?

In Walker». Anshutz, it was contended, that asteam-
boat was within the Act. The court, however, ruled
‘otherwise, saying: “The principle which governs this
case, was settled in Jones v. Shawhan. If I can con-

 

1 Casey, 523.
SECURED BY THE LIEN. 95

tract with another, to sell and deliver me a steamboat,
at a day certain, there is no reason why he should have
a lien on it, after having parted with the property, un-
conditionally, whether the boat be a new, or an old
one, whether it be finished or unfinished, provided it
answers the description in the contract; or whether the
vendor had himself purchased it or built it, with his
own hands. The statute was not made for such a
case. Mechanics and material-men may follow the
product of their labour or materials wherever they can
find it. But the owner of a boat, built by himself,
sells it as he would any other chattel, on the personal
credit of the buyer, where he expressly takes no other
security. If the personal responsibility of the buyer
prove insufficient, the seller has made a bad bargain,
and he has himself to blame, for not having taken the
proper precaution; but he cannot resort to the secu-
rity provided by the statute for a different class of
creditors.” ?

Another question, that often arises, and to which
we have already adverted, is, what incidents or ap-
purtenants to a house are, in law, such portions of it,
as to subject the house to a lien for work upon them?

Of course the furniture in a house is not provided,
for or about its “erection or construction.” And, on
the other hand, the doors and window sashes, undoubt-
edly, are.

In an early case, it was held, that a copper kettle
or boiler, in a brew house, was part of the realty, and

 

16 W. &S. 520.
96 NATURE OF THE DEBT

subject to the lien; and, as a matter of course, work
upon it would have been held to be the basis of a debt,
within the law. In another, it was held, that the fur-
nishing of burr millstones for a mill, constituted ground
for aclaim.? In another, work done upon a steam en-
gine, to propel a steam saw-mill, was held to be within
the Acts.’

But, in the case of the Olympic Theatre, it was held,
that the stage and scenery were not subject to the lien,
and that work upon them would not create a debt
within the law.*

A reference to these cases will show, that the ques-
tion, in most of them, was, simply, whether the particu-
lar subject upon which the work had been done, was,
or was not, part of the freehold,—realty by accession.
If it be, it seems right that it should not only pass
by a sale under the lien, but that the work should be
treated as the basis of a claim.

It is, perhaps, proper, merely, to notice here, the
cases and the legislation in reference to plumbing, gas-
fitting, grates, furnaces, &c., of which we shall treat
subsequently, in this same chapter. They ought to
be governed by the principle just suggested, except
where it is excluded by the express words of some
enactment.

A more difficult and complex question arises, where,
what is claimed to be an incident or appurtenant to

 

1 Gray v. Holdship, 17 8S. & R. 418.
° Wademan v. Thorp,5 W.115. —* Morgan v. Arthurs, 3 W. 140.
42 Br. 285.
SECURED BY THE LIEN. 97

the house, is some structure, distinct, and more or
less remote from it.

We have, already, referred to Barclay’s Appeal, in
which the question arose, whether a claim for work
done, for and about the construction of a building
and “appurtenances,” was good, and in which the
court say :—“ But an appurtenance may be a yard, an
alley, a cistern, a conduit-pipe, an ice-house, a smoke-
house, a privy, a stable, or other out-house, distinct
from the principal building mentioned in the written
claim, and, consequently, not within the purview of
the lien law.”

This dictum is somewhat in conflict with other
cases in the same court. Such a question had not
been, expressly, made, before; but several previous de-
cisions show what the general construction of the
law had been. We have, already, referred to some
of them, bearing indirectly upon the subject.

In Burt v. Kurtz, a claim was filed against certain
premises, for the erection of a dwelling-house, rope-
house, rope-walk and stable, and it was allowed.’ In
Hoatz v. Patterson, a lien was claimed for erecting a
furnace, casting-house, stables and houses necessarily
appurtenant thereto, and no objection was made on
that score.”

In Lauman’s Appeal, the claim was against a two-
storied stone dwelling-house, Swiss-barn, wagon-shed,
wood-house and wash-house, smoke-house and ice-
house, upon a farm. No question was made as to the

 

15 R. 246. 75 W. &S. 537.
7
~

98 NATURE OF THE DEBT

right to a lien for work upon such buildings. The
only question was, whether it was not a case for ap-
portionment. The court held it was not, and say:
“But the reason of the enactment shows it was in-
tended to apply, only to the case of separate and dis-
tinct erections, capable of, and intended for a distinct
possession and enjoyment; looking to the mischief to
be remedied, it is very obvious, the statute has no refe-
rence, whatever, to the necessary buildings of a farm,
forming component parts of a common property, and
-which, for every beneficial purpose, must be occupied
as one possession. The dwelling-house, barn, wagon-
house, and other similar erections are but appendages
of the farm, the principal thing, and built expressly
with a view to its more perfect enjoyment. They are,
therefore, to be considered as constituent parts of a
whole, incapable of separation, without injury; and,
consequently, were intended for a several occupation.
Such buildings, are, in every particular, unlike
those which apparently joined, are, in fact, completely
divided, each, of itself, constituting an object of dis-
tinet proprietorship and encumbrance. The one is
aggregate; the other is segregate. The propriety of
apportionment among the latter is manifest; its use-
lessness, as applied to the former, is not less so. For
the reasons given it is apparent, a case like the pre-
sent was not within the contemplation of the framers
of the law. Though the language used, taken lite-
rally, may include it, yet, being without the circle of
the mischief to be cured, it is, clearly, not embraced by
the spirit of the Act. It, consequently, remains sub-
SECURED BY THE LIEN. 99

ject only to the prior statutes, which do not, impera-
tively, call for an apportionment.” *

In a still later case, an old house was altered and
added to; a new two-storied back building, and a new
smoke-house, oven and privy were built. The court
held that there was no lien, because the main building
did not present a case of new erection and construction.
If it had, for any thing that appears in the case, no
doubt would have existed, that the out-buildings men-
tioned were appurtenances, and that the work upon
them created a debt which was a lien upon the entire
premises, jointly with the work upon the principal
edifice.”

Tt will be seen, how entirely discordant from these
cases the decision in Barclay’s Appeal appears.

But in a case in the District Court for the city and
county of Philadelphia, its doctrines were submitted
to, and a distinction of some importance, made. The
word “appurtenance” was found in the body of the
claim, but a bill annexed showed that an ice-house was
meant. The court say:—“It is true that the Su-
preme Court intimates that an ice-house, being an out-
house, distinct from the principal building mentioned
in the written claim, would not be within the purview
of the lien laws. But, then, that involves a question
of fact, whether the ice-house in question is distinct
from the principal building. It may be attached to,
and part of it, as much as a bath-house, a wash-house
or wood-house. If the ice-house in question be distinct

 

18 B. 473. 2 In Re Howell, Landis’s Appeal, 10 B. 379.
100 NATURE OF THE DEBT

from the principal building, then, on the trial, plaintiff’s
bill will be reduced, if it is not a lien; or, at all events,
it is there only, upon the ascertainment of the true
state of the facts, that the validity of this lien can be
truly determined.”*

In the case of Gaule v. Bilyeau, the objection was
made, “ that the ten-pin alley, the fence, &c., were out-
houses, distinct from the principal building mentioned
in the claim, and were not within the purview of the
lien laws,” and the case of Barclay’s Appeal was cited
to support the point. But Lewis, Ch. J., says:—“The
use of a part of the lumber for out-buildings does not
defeat the lien.”?

The whole subject is one of much difficulty. If a
detached barn, smoke-house, ice-house or other such
structure, be a “building,” by itself, within the mean-
ing of the Act, and it alone be erected, then a case
similar to that of Werth v. Werth,’ which we have
already noticed, would, perhaps, arise, and the building
be sold with so much ground, only, as was essential
to it,—a most awkward and inconvenient result. If
it be a mere incident or appurtenance to a main struc-
ture, and as such may lead by its erection to a claim
against the entire premises, then the case of Werth
v. Werth is not law, and an extent is given to the
claim which must lead to very embarrassing questions.
This latter view seems to follow from the language in
Lauman’s Appeal.

 

1 Killingworth v. Allen, 8 Leg. Int. 126.
21 Casey, 523. 82 RB. 152.
SECURED BY THE LIEN. 101

Where such a building is in contact with and forms
part of the main edifice, less difficulty can arise. It
may be considered as one with the latter. If the
former be attached to an old building, it is a mere
addition, not the subject of a claim. If both be built |
together, the claim is joint against both.

We ought, here, to notice the 29th section of an Act
of 1836, extending the law to “persons furnishing
curbstone for the pavement of any building, as afore-
said, within the city and county of Philadelphia.”

The next question to be considered, in commenting
upon the words which define the nature of the debt
for which a lien can be filed, is, what is meant by “the
erection and construction” of a building. And this
question has several aspects of much importance.

It is, often, very difficult to draw a distinction be-
tween a mere alteration or repair of an old building,
and the “erection and construction” of a new one, in-
tended by the Act. A lien is not given by the Act
in case of mere repairs,—adding to or altering a build-
ing.

Some of the judges have endeavoured to express
this distinction by abstract rules.

In the case of the Olympic Theatre it was held, that
“if the principal part of a building is torn down and
rebuilt, upon a liberal construction of the Act, it ought
to be considered as creating a lien.” *

In the case of Armstrong v. Ware, Lowrie, J., says:
—‘ Where the structure of a building is so completely

 

12 Br. 284.
102 NATURE OF THE DEBT

changed, that, in common parlance, it may be properly
called a new building, or a rebuilding, it comes within
the lien law.’’?

In Driesbach v. Keller, Sergeant, J., says:—“ But
a substantial addition of material parts,—a rebuilding
upon another and larger scale, constitutes a new build-
ing, even though some portions of the old are pre-
served and incorporated in the new.”

It will not be uninstructive to examine the cases
in which either the opinion or the leaning of the
court has been expressed, with reference to facts bear-
ing upon this question of building or repair.

In one of the earlier of them in the court of Common
Pleas of Philadelphia county, the owner of the land
purchased a building, partly brick and partly frame,
which, after undergoing some repairs, was moved to
the premises in question. A cellar was then dug
under it and walled up, a new chimney built, and the
house newly weather-boarded and plastered. King,
J., said: “I am of opinion, that the case disclosed in
the report, is one of a building ‘erected and con-
structed’ within the true intent and meaning of the
Act of Assembly, securing to mechanics and others
payment for their labour and materials. The frame
originally purchased by Burling was a mere shell,
and required all the labour and materials of the lien
creditors to make it a habitation for man. It has
been held, that ‘if the principal part of a building is
torn down and rebuilt, upon a liberal construction of

 

18 H. 520. 22 3B. 79.
SECURED BY THE LIEN. 103

the Act, it ought to be considered as creating a lien.’
(Case of Olympic Theatre, 2 Browne, 284.) The case
here contemplated is a rebuilding on the same site.
If a frame removed from one lot to another, at a dis-
tance, that is newly weather-boarded and plastered,
has a cellar dug and walled under, and a chimney
erected in it, is not, for the principal part, ‘rebuilt,’ I
am at a loss to understand what is so.

“But this is, substantially, a new building; the skele-
ton only of an old one, removed from its original site,
entering into its composition. If new materials had
been used in making the frame, although prepared off
of the lot the building was intended to stand upon, no
one, from the circumstance, would have questioned
the lien of the mechanics. Now, what difference can
it make, in point of common sense, if, instead of pre-
paring a new frame for his house, a party purchases
one ready made, and which had been erected on a
former occasion, and at a different place. None, I
apprehend, capable of producing the result, that in
the former case the mechanics engaged in the building
shall have a lien on the building for their labour, and
in the latter not. This Act of’ Assembly ought to re-
ceive a liberal construction in favour of the meritorious
class of citizens, the just claims of whose industry it
is intended to secure. The case disclosed by the re-
port is one fairly coming within its provisions, and a
decision of it in favour of the lien creditors, does not
disturb the doctrine, that for partial repairs no lien is

created.” !

 

1 Burling’s Ap. 1 Ash. 377.
104 NATURE OF THE DEBT

é

In another case, in the Common Pleas of Lancaster
county, it appeared that a large building was erected
for a public store house, subsequently used as a tan-
nery, and then as.an academy. It was sold, and the
land on which it stood was divided into seven lots,
and purchased by seven different persons, six of whom
built six adjoining dwelling-houses, by tearing out
the wood work of the old structure, except the joists
and roof, pulling down the whole of the front wall,
running up new brick front and division walls, and
making new windows, doors, chimneys, &. These
were held to be new erections.

In Driesbach v. Keller, a new story was added to
a one story house, which was lengthened, by the erec-
tion of a two story addition, the whole being twice the
front of the old house. It was covered with a new
roof, communications were made within, and a shed
or porch added, around the house. It was held to be
within the Act.?

In a still later case, the building in question was a
church. The roof was taken off, the whole build-
ing was taken down, except three brick walls about
eighteen feet high, viz., two side walls and one back
wall, which were cut away about one half, for new
window frames; the old materials were removed; a
new front wall was put up, with a new foundation;
the side walls were lengthened eleven feet, with new
foundations, and the whole building carried up eleven
feet higher, making it three stories high, having a

 

1 Gilbert Hill’s Est. 3 Pa. L. J. 823. 22 B. 79.
* SECURED BY THE LIEN. 105

basement room, church and gallery. Every part was
built on a new and more extended plan, totally dif-
fering from the old plan. The building was plastered
on the outside, so that no appearance of the old build-
ing remained. ‘The written contract with the builder
was, to make certain “additions and alterations.” The
District Court for the city and county of Philadelphia
held it to be a mere alteration and addition, but the
Supreme Court reversed its decision, and brought it
within the Acts. Lowrie, J., says:—“The law gives
a lien to mechanics on ‘every building erected’ by
them; but not for adding to or altering an old build-
ing. The parties, in their contract, call this work ad-
ditions and alterations; but is it properly so? Every
part of the house was reconstructed, except a part of
three walls, and, even in them, the openings are new.
There must, necessarily, be cases wherein it is difficult
to decide, whether work done is to be regarded as the
erection or as the alteration of a building, unless we
regard as an alteration, any building in which old
materials enter as an element, which would be unrea-
sonable. A saddle may be new, though old stirrups,
and even some leather of an old one, be used in
making it. A saw mill may be new, though it has an
old water-wheel or forebay.

“Where the structure of a building is so completely
changed, that, in common parlance, it may be properly
called a new building or a rebuilding, it comes within
the lien law. This is, sometimes, difficult to decide,
and then it must be left to the jury. Under the evi-
dence, here, the court might have decided, that it is a
106 NATURE OF THE DEBT

case of a ‘building erected,’ within the meaning of the
lien law, and ought not to have ordered a nonsuit.”*

On the other hand, in Miller v. Oliver, the raising
of a frame building, and putting under it a basement
story of stone, was held not to be an erection or con-
struction.”

And in Perigo v. Vanhorn, the front and back of an
old three-story house were taken down to the first story,
and a new brick front and back run up, four stories
high, with new windows, frames and sashes. The par-
titions, stairways, and chimneys were taken out, the
floors repaired, and new door-frames put in. The
change made the house five stories high, the two upper
stories being entirely new. A four-story addition was
made, and the roof over the whole was new. It was
held not to be within the Act.’

This was a much stronger case in favour of the me-
chanic, than Armstrong v. Ware, and, if it had come
before the Supreme Court, as that did, the decision of
the District Court for the City and County of Phila-
delphia might have been reversed.

In the case, In re Howett,—Landis’s Appeal, the
roof of an old house was propped up, and the front
wall taken down and rebuilt on a new foundation,
outside of the old one. A new roof was then put on.
The whole inside work was taken out, except the
floors, and the chimneys were taken down to a point
below the garret floors. New door-ways were made,
and new work was put in the old doors and windows.

 

1 Armstrong v. Ware, 8 Leg. Int. 124, 8 H. 520.
28 W. 514. 92 M. 359.
SECURED BY THE LIEN. 107

The back-and side walls, the floors, and the founda-
tions of the old house remained. Adjoining the house,
a new, two-story back building was erected, without
a cellar, and a new smoke-house, oven and privy.
The family removed from the house during the work.
Coulter, J., in delivering the opinion of the court, held
this to be a mere alteration and addition. He says:
“Tf repairing an old house is within the Act, where
is the line of distinction to be drawn? Will making
a new door or partition give the mechanic and mate-
rial-man a lien on the whole building and lot? How
much of the old house must be pulled down, and of
what extent shall the repairs be? Or, does the Act
include every material repair?

“These are questions which the statute furnishes no
indication of a criterion to judge by, and where ju-
dicial discretion and experience would be at fault.
There are expressions in the opinion of this court, in
the case of Driesbach v. Keller, delivered by Judge
Sergeant, which would seem to include repairs within
the meaning of the statute. But we look beyond the
opinion to the case itself, which was, in fact, the erec-
tion of anew house. There was a small, one-storied
house on the lot, and the owner built a new, two-sto-
ried house alongside of it, and took off the roof of the
one-storied tenement, raised it to two, roofed it, along
with the new one, and also new weather-boarded them.
Now, there was a new house built, into which the
owner removed, whilst the old one was being made
part of the new. It is more consonant to reason, to
hold, that the little old one followed the condition of
108 ' NATURE OF THE DEBT

the new, than that the large, new one followed the
fortunes of the old.”*

In a-late case in the District court for the city and
county of Philadelphia, Sharswood, J., in delivering
the opinion of the court, says: “It appeared the lien
was for materials furnished towards certain additions
and improvements made to a large Hotel, at the corner
of Broad and Callowhill streets. A two-story wing
for a barber’s shop was put up at one end, and an ex-
isting wing, at the other end, was somewhat enlarged,
and a new roof was put on the entire building. The
plaintiff's lumber went to all parts of the work, and
his claim was filed against and included the whole
building. An undisputed fact, and which seems almost
decisive, was, that the building was occupied and the
business carried on while the improvements were going
on. If the lien, in this case, can be sustained, then
every mechanic who puts on a new roof may have a
lien. The new wing does not seem to alter the case.
There might, perhaps, have been a separate lien for
that. But, here, there was no change pretended, in the
general character of the building, as from a dwelling
to a store, or vice versa, which was considered, in some
of the cases, as constituting a new erection, within the
Act of Assembly.”?

In most of these cases, the court decides the question
of new erection and construction, without expressing
any doubt about its being, properly, a matter for its
cognizance.

 

110 B. 880. ? Smith v. Nelson, 18 Leg. Int. 140.
SECURED BY THE LIEN. 109

In Perigo v. Vanhorn, the court, indeed, say:
“There being no claim for an issue, here, the fact is
submitted to our determination.”* But, in Armstrong
v. Ware, the court below, having the point distinctly
before it, says: “ We have, heretofore, decided, that the
question, whether a building is within the Acts of As-
sembly relating to mechanics’ liens or not, when the
facts are undisputed, is, necessarily, a question of law.
To hold otherwise, would produce the result, that one
mechanic and material man might recover from the
building, while another, with an equally good claim,
be defeated by the different conclusions of two diffe-
rent juries. This would be a monstrosity in jurispru-
dence.”

In the Supreme Court, Lowrie, J., reversing the de-
cision below, says, in speaking of this question: “This
is sometimes difficult to decide, and, then, it must be
left to the jury.”*

In the later case of Smith v. Nelson, already referred
to, the same judge who decided the case of Armstrong
v. Ware, in the court below, with the views of the Su-
preme Court just mentioned, before him, says: “The
authorities appear to be uncertain, as to whether this
is a question of fact or of law. In Armstrong v. Ware,
(20 P. 8. R., 519,) in which this court had decided it
to be a question of LAw, the Supreme Court merely
say, ‘that, where the structure of a building is so com-
pletely changed, that, in common parlance, it may be
properly called a new building or rebuilding, it seems

 

12M. 859. 28 Leg. Int. 124. °8 H. 520.
110 NATURE OF THE DEBT

within the Lien Law. This is, sometimes, difficult
to decide, and, then, it must be left to the jury.’ We
do not, however, consider that case as having defi-
nitely repudiated the doctrine, that, wherever the facts
are found, or are undisputed, the question, whether
an alteration is of such a character as to constitute a
new building, is a question of law for the court; and
that, whether it is easy or difficult to decide. If this
be not so, then it is plain, that some of the mechanics
who have furnished work and materials, may lose, and
others, may gain a verdict, according as different juries
may form different opinions upon the same state of
facts; and it is difficult to see, how the court can so
regulate the matter, as to do equal justice to all claim-
ants, between the interfering verdicts of different juries.
It would be a monstrous solecism, if one of two me-
chanics, equally meritorious, should be decided to have
a lien, and the other not, and the ground be, that the
same building was considered to be, in the one case,
within, and in the other, without the provisions of the
same law.”

We ought not to leave this subject, without quoting,
further, the remarks of the judge who decided these
cases of Armstrong v. Ware, and Smith v. Nelson, in
the court below. They are found in the opinion in
the former of the two cases, and may serve to aid in
establishing some rules, by which these difficult cases
may be disposed of more consistently. He says;—“ It
will be difficult to lay down any general rule on the
subject. Itcertainly has not been done as yet. Every
case will have to be decided upon its particular cir-

 
SECURED BY THE LIEN. 111

cumstances, until time and experience shall evolve
some generalcriterion. One thing seems certain, that,
if the outward appearance of the old building remain
unchanged, however great the interior alteration and
addition may be, there would be nothing to put pur-
chasers upon inquiry for liens, and such a case would,
clearly, not be within the Act. So also, though the
outward appearance be that of a new house, if the
shell of the building remain, and its purpose be the
same, it ought not to be considered as an erection or
construction.”

A question, closely analogous to the one just con-
sidered, arises, even in the case of a new house, with
reference to the time, when work must be done, or
materials furnished, so that they may be considered
as done or furnished for or about its erection or con-
struction. The work may be done, or materials fur-
nished, so long after all other parts of the house are
finished, as to be treated, merely, as done, or furnished
for an addition, not for a part of the continuing work
upon an unfinished structure.

In the case of the Presbyterian Church v. Allison,
a question arose as to bricks used for building a wall
or curbing around the basement window of a church.
The lien was sustained, for another reason, without a
direct decision of the question, whether that was such
a part of the building, as to be held to be work done
in process of finishing it. The court say, however,
“Tf after the building was finished, and notice given
to the material-man, an application was made for
brick to lay a pavement, or build a helping wall to
112 NATURE OF THE DEBT.

the edifice, that would furnish a question not existing
in the case.’’*

And in Holden v. Winslow, the court say: “ Whe-
ther the last work done by the mechanic was part and
parcel of the original job, or not, depended upon evi-
dence, and upon the finding of that fact the lien de-
pended.” “The question is, whether the topping out
done by the mechanic was part of the original agree-
ment, and was the crowning-work of his job, or not,
and, whether it was done in due time, without unrea-
sonable delay, by consent of Winslow; or, whether it
was a distinct contract, entered into after his first
work was finished.” ”

But we refer, for the rest of the cases bearing upon
this point, to those chapters which treat of the com-
mencement and continuance of the lien, particularly
the latter.

A little reflection will make it apparent, that the
additional or extra work, so separated from prior work
upon the same building, as to form no part of the first
erection or construction, may be, in one case, so in-
significant, in respect of quantity, or importance, as
to suggest no idea of a second erection or construction,
but may, in another case, be half the work upon the
house. In some decisions, the intermission has been
entirely overlooked, and the two separated periods of
work regarded as one; in others, the courts have been
driven to the necessity of declaring, that, of the same

 

110 B. 416.
?6 H. 162, and see Harker v. Conrad, 12 S. & R. 308.
SECURED BY THE LIEN. 113

house, there may be two commencements, and two
distinct erections and constructions.

What must be the character and length of such an
interval, in order to sever one part of the work from
another; how it is affected by change of title, by con-
tract, and by other circumstances, we will discuss, as
far as the cases permit us to do so, safely, in the chap-
ter referred to.

But there are other aspects of this question of “erec-
tion and construction,” which remain to be considered.

The Act of 1803, gave the lien for “work done or
materials found and provided by any brick-maker,
brick-layer, stone-cutter, mason, lime-merchant, car-
penter, painter and glazier, iron-monger, blacksmith,
plasterer and lumber-merchant, or any other person
or persons employed in furnishing materials for or in
the erecting and constructing such house or other build-
ing.” This enumeration includes those who do work,
those who furnish materials, and those who do both.

The words of the Act of 1806 were precisely the
same in this respect.

It will be seen, that so much of the clause above
cited as is general, refers only to material men, and
not to those who do work upon the building. Only
those mechanics, therefore, who were expressly enu-
merated, could have filed claims for work.

It was held, in consequence, in early cases, that the
paper-stainer, paper-hanger and plumber were not
within the Act.

 

1 Hurley v. Lybrand, and Rowley v. Lybrand, 1 Frank. Inst. J. 97,
Wh. Dig. Title, Mechanics’ Lien, pl. 66 & 67.
8
114 NATURE OF THE DEBT

It will be observed, that, in this particular branch of
the subject, the character of the building, and what is
or is not part of it, or appurtenant to it, and what is
realty by accession, are not involved. The nature of
the work, alone, is in question.

In a case in the District Court, for the city and
county of Philadelphia, the peculiarity of the earlier
Acts was noticed. Stroud, J., in delivering the opi-
nion of the court, says; “It was decided under the
Mechanic’s Lien Act of 17th March, 1806, that that
Act admitted of no such claim,—Hurley v. Lybrand,
2 Whart. Dig. pl. 10, p. 252. The grounds of this
opinion have not been transmitted. They are sup-
posed to have been derived from the fact, that there
is, in the enacting clause of the Act, an enumeration
of certain mechanics and material men, such as brick-
makers, brick-layers, stone-cutters, masons, lime-mer-
chants, carpenters, painters and glaziers, iron-mongers,
blacksmiths, plasterers and lumber-merchants, who,
for the work done or the materials furnished by them,
are declared to be entitled to liens, whilst no mention is
made of a paper-hanger. This argument is entitled to
much consideration; for, though this enumeration is fol-
lowed by the more general language, ‘or any other per-
son or persons employed in furnishing materials for or
in the construction of such house,’ &c., yet, it is observa-
ble, that this language does not extend to work done,
but is restricted to the furnishing of materials, by such
other persons. Paper-hangers, therefore, not being in
the enumerated class of protected mechanics, and the
other language not comprehending claims for work
SECURED BY THE LIEN. 115

done, would seem not to have been within the purview
of the Act of 1806.”?

The Act of January 28, 1831, extends the Act of
1806, and its supplements, “to plumbers, for all work
by them done, or materials by them found and pro-
vided, for or in the erecting and constructing of all
and every dwelling-house or other building, and the
hydrants and pipes appurtenant thereto, hereafter
constructed and erected within the city and county of
Philadelphia.”

The Act of 1856, omitting any enumeration such
as we find in prior Acts, extends the lien to “all debts
contracted for work done, or materials furnished for
or about the erection or construction” of the building.

Upon this subject the Commissioners say: “We
have, in this section, omitted the enumeration of par-
ticular mechanics and material men, since the general
words of the Act of 1806 seemed to render it neces-
sary.”

In the case of Freeman v. Gilpin, which we have
already cited, the question arose as to paper-hangers,
under the Act of 1836. The remarks which we have
given were made in reference to earlier Acts, for the
purpose of distinguishing them from the later one, and
explaining prior decisions. In regard to the Act of
1836, Stroud, J., says:—‘“Here is no enumeration,
but the expressions are as general as possible. And
as there can be no doubt, at the present day, whatever
may have been the practice formerly, that a paper

 

1 Freeman v. Gilpin, 9 Law J. 426.
116 NATURE OF THE DEBT

hanger does work and furnishes materials in the con-
struction of a house, there seems no just ground for
his exclusion from the benefits of this Act. New
houses are seldom offered for sale, or to be let, until
papered. When the Act of 1806 was passed, and for
many years afterwards, the practice was otherwise.
This change of circumstances, in itself, requires a cor-
responding application of the law.”

The act of March 24th, 1849, expressly extending
the Act of 1836 to paper-hangers, was in force at the
time of this decision, and was referred to, as showing,
that they could not have been embraced by the pro-
visions of the Act of 1836. But the argument was
not regarded.

The 29th section of the Act of 1836 extends the
lien to “plumbers and persons furnishing curbstone
for the pavement of any building as aforesaid, within
the city and county of Philadelphia.”

‘The words “within the city and county of Phila-
delphia” were not in the original draught reported by
the Commissioners. The rest of that section, however,
was theirs; and they say, in regard to it: “The con-
cluding section extends the provisions of the Act to
plumbers and persons furnishing curbstone, and fol-
lows, in this respect, the Acts of 1818 and 1831. It
seems proper to provide for them, specially, here, as
they are not, necessarily, included in the general terms
of the first section.”

An Act of April 24th, 1843, extended this section
to Northampton county; an Act of May 6th, 1844, to
the city of Lancaster; an Act of January 23d, 1849,
SECURED BY THE LIEN. 117

to Chester county; and an Act of March 24th, 1849,
extended the lien to plumbers in Chester county.

By an Act of April 14th, 1855, the provisions, gene-
nerally, of the Act of 1836, are extended “to plumb-
ing, gas-fitting, and furnishing and erecting of grates
and furnaces.”

Notwithstanding these Acts, however, questions
must, hereafter, arise, under the general words of the
Act of 1836, above mentioned, as to the work of par-
ticular artisans, and its relation to the structure, such
as that presented in Freeman v. Gilpin, to be decided
on the principles there suggested.

For the basis Act of 1836 no longer names particu-
lar mechanics, but leaves, for each case, the question,
whether the work done, or the materials furnished,
are of such a nature, that they can be said to be done
or furnished “ for or about the erection or construction”
of the building.

But there is another requisite involved by the words
“for or about the erection or construction,” &. The
work must be done, or the materials furnished, upon
the credit of the house.

In Hills v. Elliott the court show, very clearly, the
importance of this doctrine of credit, or intention; of
the purpose and understanding, that the work and
materials are for the building, and bind it. They say;
“ A lumber merchant purchases, on credit, one hun-
dred thousand feet of boards, to sell and make profit.
He changes his intention, and erects two or three
houses, and uses half of the boards therein. If his
creditor, for this lumber, has a lien on those houses,
NATURE OF THE DEBT

~ he has what neither himself, nor the buyer, nor, as I
believe, the Legislature ever intended.” *

The question of a credit to the house arises, most
frequently, of course, with reference to materials fur-
nished. Whatever may be the belief and intention of
the person supplying them, and whatever his reliance
upon the person who gives the order, they are, upon
a delivery to the latter, subject entirely to his dispo-
sition. From a change of purpose, or a fraud, he may
never use them in the house. Is the lien of the ma-
terial man to depend upon his ulterior purposes ?

There is nothing in the Act requiring, that the ma-
terials should be actually used in the building. It is
sufficient if they are furnished “‘for or about the erec-
tion or construction.”

In an early case, the lien of a lumber merchant was
sustained, though the lumber was not used. The
Judge who presided in the District Court, for the City
and County of Philadelphia, charged, upon this point,
as follows: “ Was the debt contracted, and on account
of the building; and was it delivered at, or near the
premises, with an intention to be used therein? If it
was, Wallace has done every thing to entitle him to
his lien, and it would be hard to allow him to be de-
feated by any act of Melchoir’s in which Wallace had
no participation.

“Tf you are satisfied, that Wallace’s debt was con-
tracted for, and on the credit of the building; and

oO?
that the lumber was delivered at or near the building,

 

1168. & R. 58.
SECURED BY THE LIEN. 119

at the place pointed out by Melchoir, with an wnder-
standing of the parties that it was to be used in the erec-
tion thereof: if, after that, Melchoir did not use the
lumber in the building but, without the knowledge or
eonsent of the plaintiff, sold it to other persons, still,
Wallace had a lien on the building, for his debt.”*

In Hinchman v. Graham, Tilghman, Ch. J., says :—
“T was once inclined to think, that the lien might be
restrained to the materials actually used in the building,
but, on reflection, I find that such a construction is
not warranted by the words of the law, and would
operate unjustly on those who furnish the materials;
for, how can they tell the exact quantity that the
building will require, or what control have they over
the purchaser, after delivery?” and again, “the mer-
chant, having sold and delivered the materials, for the
purpose of being used in the building, could do no
more. It would be unjust, therefore, to throw upon
him the risk of their future application.” And the
remarks of Yates, J.,in the same case, are equally
clear and direct, and still more positive.”

In Harker v. Conrad,’ the same doctrine was held
by the court below, without any disapproval by the
Supreme Court. In Church v. Allison,’ also, the ear-
lier cases, as to this point, are sustained. And in
Witman v. Walker, the court, expressly, say: “The
right to obtain a lien is given by the Act of Assembly
to all debts contracted for work done or materials fur-
nished for or about the erection or construction of the

 

1 Wallace v. Melchoir, 2 Br. 104. 228. & R. 170.
*128. & R. 303. “10 B. 416.
120 NATURE OF THE DEBT

building, and that, whether the materials are actually
used in it or not.”*

But what is, then, the furnishing “for or about”
the erection and construction of a building, which
forms the basis of the debt, without reference to what
is actually done with the materials; in fact, even if
they are not so used.

In Hinchman v. Graham, the court makes the test
of coming within these words, that the lumber was
furnished “for the purpose” of being used in the build-
ing.

In Hills v. Elliot, the court say:—“The materials
must be furnished on the credit of a particular house.
Such must be the understanding at the time.”

We shall, hereafter, in treating of the subject of
evidence, present the cases which bear upon the mode
of showing this “purpose” or “credit,”—the proof to
be adduced by the plaintiff, on the trial.

The question has often been made, how far special
agreements between the mechanic or material man,
and the contractor, affect the position of the debt. It
has two aspects, one having reference to the question
whether a lien ever existed, the other to its extin-
cuishment after it had begun. It is to the former of
these, that we shall now turn our attention. The
latter we shall consider, in treating of the nature of
the lien.

None of the earlier decisions intimated, that a spe-
cial contract endangered the lien. On the contrary,

 

19 W. &S. 186.
SECURED BY THE LIEN. 121

they tended to establish, affirmatively, the opposite
doctrine.

In Hinchman v. Lybrand,’ a brickmaker made a
special agreement, in writing, with the owner, by which
he agreed to furnish the bricks for two houses, to be
paid for, partly, in cash, at a certain fixed time, and,
partly, in lumber, at fair prices, when called for;
which agreement was guarantied by a third person.
It was held that the brickmaker had a lien.

Under another head, we shall refer to numerous
authorities showing, that a taking of a bond, or a note,
or even the entering or obtaining of a judgment, for
the same debt, is not a waiver, release or extinguish-
ment of the lien. If this be so, of course, the taking
such a security, in contemplation of the debt, but be-
fore the lien attaches, ought not to interfere with its
validity. |

In Mall v. Eastwick, the plaintiff, who was a car-
penter, agreed with the defendant, who was a plas-
terer, that each should do work upon the other’s build-
ing, of his particular kind, and when both had done, a
settlement was to be had. The court sustained the lien.’

In a case of Shaffer v. Hull, in the Common Pleas
of Lancaster county, Lewis, J., held that where the
contractor was a carpenter as well as a lumber mer-
chant, and his contract was confined to matters within
the lien of his own business, he had a lien, notwith-
standing a special agreement.*

 

114 8..& B. 82.
29 Miles, 45. See Croskey v. Coryell, 2 Wh. 223.
$3 Pa. L. J. 821.
122 NATURE OF THE DEBT

In Havilland v. Pratt, a lien was sustained, though it
was agreed that the work was to be paid for in a house.”

But in the case of Haley v. Prosser, for the first
time, the doctrine, was announced, that a special
agreement, under all circumstances, deprives the party
of his lien. “We have, heretofore, ruled,” say the
court, “that where there is a special contract with
the owner, the party who dealt with him must provide
for his own security; but, that where there is no agree-
ment in which the terms of the bargain are particularly
stated, he is supposed to contract on the basis of the
law. Indeed, the specification required by the statutes
of “the nature or kind of work done, or the kind and
amount of materials furnished, and the time when the
materials were furnished, or the work was done,” is
inapplicable to a lumping case, in which the party
has contracted for a round sum, or, as in this case, for
a given number of bricks. The object, originally, in
the contemplation of the legislature, was, to secure
those who furnish labour or materials to a mere builder,
without knowing the owner, or having an opportunity
to secure themselves; but the words of the law are
certainly applicable to cases in which the owner is his
own builder. Where, however, the rights and re-
sponsibilities are defined by a bargain, neither is at
liberty to claim any thing beyond the terms of it.””

This decision was a surprise to the profession. And
the idea, that the original design of the legislature
was, to favour those who did not know the owner,

 

19 Leg. Int. 98. 28SWw.&S. 134.
SECURED BY THE LIEN. 123

seems somewhat in conflict with the words of the
Act of 1803, construed by the case already cited, of
Steinmetz v. Boudinot, which forbid a lien for any
debt not contracted directly with the owner. Gibson,
Ch. J., in speaking of decisions prior to that of Haley v.
Prosser, said, that it had not, at that time, ever been
determined, that a mechanic or material man could
not file a claim, where he had made a special contract ;
and, that no more had been decided, than, that the
master builder or contractor could not file a claim for
his services and skill.t |

The decision in Haley v. Prosser, probably, led to
the passage of the Act of April 16th, 1845, which
enacts: “that the provisions of the Act” of 1836,
“according to the true intent and meaning thereof,
extend to and embrace claims for labour done and
materials furnished and used in erecting any house
or other building, which may have been, or shall
be erected under or in pursuance of any contract or
agreement for the erection of the same; and the pro-
visions of the said Act shall be so construed; and no
claim which has been or may be filed against any
house or other building, or the lien thereof, or any
proceeding thereon, shall be, in any manner, affected,
by reason of any contract having been entered into for
the erection of such building; but the same shall be
held good and valid, as if the building had not been
erected by contract: Provided, that no case shall be
affected by this section which may have been decided

 

* Bolton v. Johns, 5 B. 157.
124 NATURE OF THE DEBT, ETC.

by the Supreme Court, or in which the proceeds of
the sale of any real estate may have been distributed
by the decree of any court from which no appeal has
been taken.”

Several decisions have been had bearing upon this
subject, since the Act, which we need only refer to.
The only one of them which needs comment, perhaps,
is that of Johns v. Bolton, in which Gibson, Ch. J.,
seems to throw out a doubt, whether the Act in ques-
tion applies to sub-contractors. But there is so little
that is definite in the opinion, on this point, that we
cannot safely do more than call attention to it. The
words of the Act, however, are not free from doubts
and difficulties of construction.’

It is, perhaps, proper lest they should have escaped
attention, to refer, again, to the cases in which it was
held, prior to the decision in Haley v. Prosser, that a
debt may be the subject of a claim, although it be
payable in lumber, or in a house.’

 

* Young v. Lyman, 9 B.449. O’Brien v. Logan, 91d.97. Bolton
v. Johns, 5 Id. 145.

? Hinchman v. Lybrand, 148. & R. 32. M‘Call v. Eastwick, 2
M. 45. Havilland v Pratt, 9 Leg. Int. 98.
THE CREDIT OF THE BUILDING. 125

CHAPTER III.

WHO MAY PLEDGE THE CREDIT OF THE BUILDING.

By the Act of 1803, as we have seen, no building
could be bound except for the payment of a debt con-
tracted by “the owner or owners thereof.” And in
the case of Steinmetz v. Boudinot, it was expressly
held, that where the owner made a contract with ano-
ther, to build his house, and that other engaged or
employed mechanics or material men, he did so upon
his own credit, and not upon that of the building.t

The question how far, in such a case, the contract
of the builder was, under the usual law of agency,
really the contract of the owner, does not appear to
have been made, either in that or any other reported
case.”

Subsequent enactments relieved the system of this
difficulty, by omitting the words above quoted; and
the Acts of 1808, and 1836, expressly, recognised a
debtor or contractor, who might charge the building,
and, yet, not be the owner.

It is singular, that the question did not sooner occur,
whether such a contractor must be one whose contract
extends to the whole building, or whether a sub-con-
tractor, for a portion of the building, could bind the
owner and his estate in the same manner.

 

135. & R. 541, and see Jones v. Shawan, 4 W. & S. 264.
? But, see, Campbell v. Scaife, 8 Leg. Int. 74.
126 WHO MAY PLEDGE THE

In several cases, which are cited in the decision
which we are about to notice, the similarity of the
positions of the contractor and sub-contractor, with a
view to their rights of lien against the owner and his
building, was discussed. But the question, whether
the sub-contractor pledged the credit of the building,
when he employed mechanics or ordered materials,
and whether he was a “contractor,” within the mean-
ing of the Act of 1836, who might be joined in the
claim, and made a party to the proceeding, seems not
to have come directly up, until this case presented
itself.

We refer to the case of Derrickson v. Nagle, in the
District Court for the city and county of Philadelphia,
in which a claim was filed against an owner and con-
tractor, the latter being merely a sub-contractor, to
“furnish or put up all the marble mantels.” In this
case the claim was sustained. But, Sharswood, Pr.
J., in delivering the opinion of the court, says :—“ Were
this Res integra, we should be disposed to hold, that
no one but a ‘contractor, architect, or builder, —(these
words being evidently used in the Act of Assembly as
synonymous,) has authority to pledge the credit of
the building. Many reasons may be urged to show
the inconvenience and injustice of any other interpre-
tation. The owner who erects a building by contract
is environed with great perils, but these are multi-
plied, beyond measure, when he is, himself, the archi-
tect, and gives out the different parts of the work to
different mechanics.

“Not only may he be made to pay twice for the same
CREDIT OF THE BUILDING. 127

thing, but his terms as to price, &c., will, of course, not
be binding upon the mechanic, who is not privy to
the original contract.

“We have found it impossible, however, to recon-
cile such a position with the authorities. In Witman
v. Walker, 9 W. & S. 183, the plaintiff, below, was
a contractor, in the same position as Brown. He
had contracted to do all the marble-work. It was
held, that he fell within the principle of Jones v.
Shawan, 4 W.& 8.417, and Hoatz v. Patterson, 5
ibid. 537, and was not entitled to file a lien. ‘It
is not easy to perceive, says Judge Sergeant, ‘any
difference, in principle, in the circumstance, that the
contract is not for the whole building, but for a par-
ticular job or piece of work, as here, to put up the
marble-work for two houses, and furnish marble man-
tels. The relation of the parties is the same, and
similar inconveniences and incongruities would ensue,
to those pointed out in the opinion delivered by Mr.
Justice Rogers, in Jones v. Shawan, if the same indi-
vidual might stand in the double capacity of con-
tractor and material man.’ Mr. Justice Rogers does
not deliver any opinion in Jones v. Shawan, but he
does in Hoatz v. Patterson, 5 W. & S., 538, and in
that he says: ‘There would, in either case, be the
same inconvenience arising from double liens and
double recoveries, and the same incongruity in the
same person being both plaintiff and defendant.’”*

But the question, who may pledge the credit of the

 

113 Leg. Int. 158.
128 WHO MAY PLEDGE THE

building, has other and more difficult aspects. It is
proper, that one who is employed by the owner to erect
a house, should not be made an instrument, as he was
under the Act of 1803, of enabling him to evade the
liens of those who are employed in the construction.
But there are cases in which the owner of an estate
in the land, not only, has no relations, directly or in-
directly, of a contract character, with the structure,
or those employed upon it, but would prevent its pro-
gress, if he could. Thus, the owner of a life estate,
or other particular estate, builds; can he charge the
estate of the reversioner or remainder man; does the
lien to which he gives rise bind the fee? A lessee
erects a dwelling upon the premises demised to him,
will a sale under the lien of one of his mechamics carry
the absolute estate to the purchaser? A trespasser
constructs a house, can he enable the persons whom
he employs to charge the title of the real proprietor?
These are questions which have all been settled by
authority.

It was early decided, that this lien arose from a
credit given to the building, and not to the owners,
and that as remainder men and reversioners were
benefited by its erection, their interests were, pro-
perly, bound by the lien.1 And where the owner of
an equitable estate, in possession, employed the me-
chanics, it was held that the legal estate was bound. ?

 

Savoy v. Jones, 2 R. 350. But see Barnes v. Wright, 2 Wh.
293; and 2 Wash. C. CO. R. 33.
* Bickel v. James, 7 W. 9.
THE CREDIT OF THE BUILDING. 129

So, in the case of a lessee, a like doctrine was an-
nounced."

These cases must be carefully distinguished from
others, in which it has been held, that erections by a
tenant for years, for the purposes of trade, or under
an agreement to remove them at the end of his term,
being merely chattels, do not subject the premises to
alien. The latter cases, of course, would not apply,
where the structure was, in fact, realty, though the
lessee might be the person who procured its erection.”

The supposed hardship of these doctrines to re-
mainder-men and reversioners, owners of legal estates,
and lessees, led to the Act of 1840, which enacts that
the lien “shall not be construed to extend to any other
or greater estate in the ground on which any building
may be erected, than that of the person or persons in
possession, at the time of commencing the said build-
ing, and at whose instance the same is erected,” &c.

But the decisions which led to this Act did not
reach the case of an erection by a mere intruder. It
might, indeed, in some cases, benefit the owner of the
better title, and the mechanic might have given implicit
credit to the building; but it would bea hardship not
to be borne, that the owner should be affected by a
mere trespass. The point has never been expressly
decided, but in the case of Bickel v. James, already
referred to, Gibson, Ch. J., seems to presume strongly
against the lien in such a case.*

 

1 Holdship v. Abercombie, 9 W. 53.
2 See cases cited ante, p. 87, &e. 37 W.9.
9
130 WHO MAY PLEDGE THE CREDIT OF THE BUILDING.

In the case of Bruner v. Sheik, it was held that an
insurance company, building in discharge of its duty,
under a policy of insurance, could not enable the me-
chanics to affect the premises with their liens.

We shall refer to most of these decisions, more par-
ticularly, hereafter.’ It is manifest from their tenor,

that, even prior to the Act of 1840, it was the safer
course, for the mechanic or material man, to see to the

title of the person upon whose land he was building.
Since that Act, this duty is most manifest.

 

OW. &S8. 119. ? Part IIL, ch. 3.
PART III.

OF THE SUBJECT OF THE LIEN.

CHAPTER TI.
OF THE SUBJECT OF THE LIEN, AS RESPECTS ITS NATURE.

TRE primary object of the legislature seems to be,
to give to the mechanic and material man security for
their debts, by pledging to them the subjects of those
debts, themselves; viz.: the materials wrought up, or
constructed into a building.

The first necessity of this object seems to be, that
the lien should attach itself to each part of the mate-
rials, as soon as delivered, whether used or not, and
to each part of the work, as soon as it is finished, whe-
ther it exists in the form of a building, or has not yet
reached that position.

We have, already, referred to the cases which esta-
blish, that a lien may exist in favour of the material
man, who furnishes materials in good faith, on the
credit of the building, although they are never used
in the building; and no doubt the rule is the same
with reference to work upon those materials.

In such a case, the law often goes one step further,
132 NATURE OF THE SUBJECT.

to aid the classes which it protects, and gives them a
lien on work and materials to which they have not
contributed. They are secured by a house, into which
neither their work nor materials have gone, because of
a credit given to it.

But in what position are the work and materials
not used, if found and distinguished? Where they
have been appropriated to some other structure, the
lien upon them is lost, perhaps, owing to the inter-
fering rights of another set of creditors. But, if they
still exist in kind, improved by labour, or as they were
when furnished, what has become of the liens upon
them? Suppose they continue in the hands of the
contractor, on the ground where they were to have been
used, or elsewhere, what is their legal position?

In the case of White v. Miller, the main question
presented seems to have been the one to which we
have already referred, whether the materials must be
actually used in the building, or not, in order to allow
ofalien. A portion of those furnished, there, were
levied upon and sold, under an execution against the
contractor, on the ground on which the house was erect-
ed. The Court say: “If, then, the lumber was fur-
nished on the credit of the building, and not of the
contractor, it is not easy to understand, how it could
be seized and sold by his creditors. The title to it was
vested, by the delivery, not in him, but in the pro-
prietor of the building, subject, only, to the revindica-
tion of the seller. The ownership of it, between the
time of delivery and of working it into the building,
could not be in the contractor, because it was de-
livered to him, not on his own credit, but on the cre-
NATURE OF THE SUBJECT. 133

dit of the building to which it was destined. It was
sold for the building, and, consequently, to the owner
of it. He had power to protect it from the contractor’s
creditors, and he cannot charge his inactivity to the
material-man, who had nothing to do withit. The
ownership had passed by the delivery, and the build-
ing had become debtor for the price. The application
of the lumber to the building was to be seen to by the
owner of both.’”?

If this case means to decide that materials, in such
a condition, are subject to the lien of the mechanic or
material man, and that they cannot be, in law, as
between the parties, withdrawn from it, even to satisfy
the creditors of the person who is, in fact, the debtor
for them, another doctrine must be invoked, to enable
the claimant to reach them.-. The process given by
the Acts is of a nature adapted to levy upon realty,
only, and to give him relief, it would, perhaps, not be
straining the principles of the law, to treat such ma-
terials as, constructively, realty, portions of the house
upon the credit of which they were furnished.

Where the materials, however, have not only, not
been used, but no house at all has been erected, such
a construction would lead to very embarrassing re-
sults.

Another necessity of the desire to enable the me-
chanic, or material man, to follow his own work or ma-
terials, is, that he should follow them in their new form
and position. A lien is, therefore, given upon the
house erected.

 

16H. 54.
134 NATURE OF THE SUBJECT.

But as a sale of the house, alone, would be, gene-
rally, an idle and profitless course, a third necessity
of the protection sought, is, that the lien should ex-
tend to the land, also, upon which the house is erected.

It was contended, as we shall see, more fully, in the
following chapter, at an early period in the history of
the law, that the building, only, was affected by the
lien, and that it did not extend to the soil beneath.
This view, however, never received the serious coun-
tenance of the courts. The land has, always, been
considered as bound with the house, and is, in fact, the
substantial subject of the incumbrance. This is the
practical result of following the work and materials,

But as the Jand can only be charged, through the
building erected upon it, and, as the description of the
land, as a subject, depends, therefore, to a very im-
portant extent, upon the building, it is, always, ne-
cessary, first to ascertain the character of the building
which can so affect the land.

We have so fully discussed this topic in the chapter
upon the nature of the debt which forms the basis of
the lien, that we may refer to it for all the information
which is afforded by the cases. Of course, wherever
a building is of such a character, as to bring the debts
to which its erection gives rise, within the Acts, it be-
comes, itself, a proper subject for the lien; and, on
the other hand, buildings which are not of a character
to create a lien, under the Acts, such as public build-
ings, and mere chattel structures, erected by lessees,
for purposes of their trade, are, for a like reason, ex-
cluded from the operation of the law.
EXTENT OF THE SUBJECT. 135

CHAPTER II.

OF THE SUBJECT OF THE LIEN IN RESPECT OF ITS EXTENT.

In the earlier Acts the “dwelling-house or other
building,” was made subject to the lien.

In a case decided more than forty years ago, the
point was made, that nothing, but the house or building,
was liable; that the lot was distinct; and that where
both were sold, some mode must be devised, to ascertain
their respective values, and distribute the money accord-
ingly. This case arose in the court of Common Pleas, of
Philadelphia county, and Rush, President J., in deliver-
ing the opinion, says :—“ It is obvious, that this special
claim of the lien creditors, must be determined, on a
sound construction of the lien acts, and on established
principles of law. There can be no question as to
the view of the legislature, which certainly was to
give the lien creditors every possible benefit arising
from the house or building, as a fund for the payment
of their demands. The project of selling the house,
without the lot, would, in a great degree, if not en-
tirely, destroy the fund provided by the legislature.
The security and preference given to them would be
a shadow, instead of a substance. The titles to real
property would be infinitely perplexed, by a proceed-
ing of this kind. One person would own the house,
136 EXTENT OF THE SUBJECT.

and another the lot. In case the house, onlv, were
sold, the purchaser would have no right to a foot of
the adjacent or surrounding ground, and the owner
might build against his doors and windows. It is im-
possible to trace all the mischiefs resulting from this
new-fangled title. Upon general principles of law,
we are, also, of opinion, that the lien creditors have a
right to sell both house and lot. A grant of the pro-
fits of land is a grant of the land. A grant of a pool
of water is a grant of the land which it covers; 1 Inst.
5,6. Soa grant of a house is a grant of the lot, and
the curtilage. Upon this principle a lien on the house,
in the present case, is a legislative grant of both house
and lot, to the grantee. When a man grants to an-
other a lien or mortgage on his house, it is, in law, a
lien or mortgage on the lot also.

“On the supposition, that the law has given the
lien creditor a right to sell nothing but the building,
look, for a moment, at the consequences. The owner
of a lot, after building upon it a valuable brick house,
finds himself unable to pay for it, and is indebted to
no creditor, except the tradesmen and mechanics em-
ployed in erecting it. If the building, alone, is to be
sold by the lien creditor, it will, necessarily, sell for a
trifle, without the lot; and the debtor has only, to get
some friend to purchase it, for his use, and he will
practise a complete fraud on all his creditors.” 4

In Bickel v. James, the court say; “But the pro-

 

1 Browne v. Smith, 2 Br. 229, (note.)
EXTENT OF THE SUBJECT. 137

ject of the Legislature, in the preceding Acts, has been,
as it still is, to secure to the mechanic or material
man the fruit of his labour or materials, by selling the
building, of which it happened to be a component part,
without regard to the ground. The latter was a sub-
ject of so little consideration, as not to have been
mentioned, in either of them; and, that it is sold as
an appurtenance of the building, is, because it could
not be severed from it.” “Were the building sold
without the ground, the interest in the freehold would
not be disturbed; but, as that is impracticable, a conse-
quent loss may, sometimes, have to be shared by claim-
ants, under the same title, of separate interests in the
fee,”+

There seems to have been no doubt, therefore, prior
to the Act of 1836, that the ground, on which the
building was erected, was subject to the lien, with the
building. Whether the building be the principal, and
the land the incident; or the land the principal, and
the building the incident, within the meaning of the
law, is, perhaps, not a matter of direct importance.

But, upon the establishment of this doctrine, another
difficulty arose. It appears to have been contended,
gravely, that only the actual surface upon which the
building stood, was affected, not any of the surround-
ing soil, or of the appurtenances. But this, like the
first objection, was soon settled in favour of the me-
chanic.

In a very early case, a court had been laid out, for

 

17 W.9. And see Holdship v. Abercombie, 9 W. 52.
138 EXTENT OF THE SUBJECT.

the use of certain houses to be erected. A lien was
filed against one of them, which included the court.
It was held, that the court was a necessary appurte-
nance to the house, for the use of which it had been
opened, and that it was properly embraced in the
description in the claim."

In the case of Werth v. Werth, claims were filed,
for building a stone barn, on a plantation. The latter
was afterwards sold, and the proceeds were for distri-
bution among lien creditors. A question arose, as to
the part and proportion of the fund raised from the
whole plantation, to which the mechanics were entitled,
and the mode of ascertaining it. The court of Common
Pleas decided, “that the lien was to be confined to
the building erected, and the land covered by it, with
all the necessary means of enjoying it, in the usual
way, and that the liens were first to be paid, and the
residue of the purchase money applied to the judg-
ments, according to their priority;” and appointed a
commissioner, to report the liens, and the proportionate
value of the building, in reference to the whole tract,
which proportionate value, was to be paid to the me-
chanics, pro rata, and, if there were any residue, it
was to go to the judgment creditors. The Supreme
Court, in error, approved of this course, and affirmed
the judgment.”

In the case of Pennock v. Hoover, the court say:
“that, by a literal construction of the Act of 1806, it
may be made a question, whether the lien can be ex-

 

1 M‘Ilhenny v. Pratt, 1 Journ. of Fr. Inst. 214. 22 RK. 102:
EXTENT OF THE SUBJECT. 139

tended beyond the ground actually covered by the
house or building; because, by the words of the Act,
it is the house or building, that is made subject to the
payment of the debt, and no mention, whatever, is
made, even of the land or ground upon which it stands.
It is, therefore, only, by a liberal, or perhaps, more
properly speaking, a reasonable construction, that the
lien created, under this Act, can be made to embrace
any land not covered by the buildings. And, although
it may be necessary in order to carry into effect what
seems to have been the intention of the legislature, as
manifested throughout the Act, to extend the lien to
land beyond what may be covered by the buildings, yet,
there must be some reasonable limit, in this respect;
and here, it appears to me, that the purpose of the
legislature will be fully satisfied, by extending the lien
beyond the ground covered by the buildings, to as
much more as may be necessary for the convenient
occupation and enjoyment of them, according to the
intention and design of the owner, at the time of their
commencement. This would seem to be giving to the
party all the security that was intended by the Act;
and, any thing short of this would, perhaps, in most
instances, render it very ineffectual. In this case, the
Auditor has made a division of the ground, allotting
to each house, not only, what would seem to be as
much as is usually occupied as a curtilage to such
houses, placed in a similar situation, of the county or
city of Philadelphia, but, all that the owners of the
houses had intended should be used as appurtenant
140 EXTENT OF THE SUBJECT.

thereto, according to his plan of improvement, as in-
dicated by the work done upon the ground itself.”2

In the report of the Commissioners, which we are
about to give at length, a case of M‘Donald v. Lindall,
was mentioned, as tending to throw some doubt upon
this subject. The remarks referred to are probably
those of the court, where they say: “How far the
words in the description in the lien filed can go, in af-
fecting property contiguous to, and not covered by the
building,” “we do not now decide.”

But all that was, really, determined by that case, was,
that where the claim did, in fact, describe the surface
which the claimant desired to affect by his lien, he
must be confined to his description, and could not
claim more, because the law would have allowed more,
if he had included it.

In their report, the Commissioners say, upon this
subject: “The second section is new, in terms, and
has been introduced, for the purpose of removing a
difficulty, which arose, very early, after the passage
of the Act of 1806. That Act says, ‘every dwelling-
house, or other building, shall be subject, &. These
words give no lien to the mechanics, &c., upon the
ground or land oceupied by a building, or adjacent to
it. The rule of the common law is, that the owner-
ship of the soil carries with it every thing erected
upon it, except under special circumstances; and it
has never been supposed that the reverse of this, viz.,
that a right of lien upon a house affected the owner-

 

19 R. 314.
EXTENT OF THE SUBJECT. 141

ship of the soil, could be sustained upon any sound
principle. It is plain, however, that a lien upon a
building, merely, without any ownership in, or control
over the soil which it covered, would be of little avail
to the mechanic, even if the ground under the build-
ing were supposed to pass with it. The value of the
building would be trifling, in most situations, if de-
prived of the use of the ground immediately adjacent
to it. Other creditors, however, holding mortgages or
judgments, disputed the right of lien creditors, under
this law, to more than the mere building, or, at all
events, to more than the ground actually occupied by
it. The construction given by the courts of Philadel-
phia to this provision, was, perhaps, not free from
objection; but it certainly tended to give efficacy to
these liens, which it was the design of the legislature
to encourage. They held, that the lien attached, not
only to the building, and the ground occupied by it,
but to so much of the adjacent ground as was neces-
sary and proper for the ordinary purposes of the build-
ing. The practice of many years has been in accord-
ance with this view of the law. A recently reported
decision, however, of the Supreme Court, at Pittsburgh,
(M‘Donald v. Lindall, reported in 3 Rawle, 492,) has
tended to throw some doubt upon the correctness of
the present construction of the Act, and, at all events,
the uncertainty in which, by the practice, the extent
of the lien is left, seems to require some definite legis-
lative provision. It is believed, that it was the inten-
tion of the legislature, to give the mechanics and ma-
terial men the benefit of a lien upon a building, with
142 EXTENT OF THE SUBJECT.

all the appurtenances that confer a value upon it, in
the absence of any express stipulation on the subject.
But, how are these appurtenances to be ascertained?
Certainly, not by any general rule, to be laid down, in
the first instance. A dwelling-house, in a city or
borough, for example, has, usually, attached to it, a lot
of ground, of sufficient depth for the usual out build-
ings, and, at all events, for the benefit of light and
air. A barn in the country, in the middle of a ficld,
would be of little value, if there were no right to ap-
proach it. Almost every species of building has some
appurtenances, which vary with the different kinds of
building. If, then, it can be conceded, that this lien
extends to the appurtenances of a building, the diffi-
culty will still remain, of deciding upon the extent
thereof. It would be, obviously, wrong, to leave it to
the lien creditor, to define the extent of his lien, for
himself, on filing his claim. Nor is there, at present,
any authority in the court to interfere, before the pro-
ceeds of the Sheriff’s sale are brought in. They then
endeavour to do justice, between the different species
of incumbrances, by apportioning the fund among
them, according to what they suppose to be the ex-
tent of their respective rights. But if, in law, the
lien of the mechanic is limited, as it must be, some-
where, or to some extent of ground, the Sheriff, upon
an execution, on his claim, can sell no more than to
that extent, and the purchaser will, certainly, be in
doubt about the extent of his purchase.

“Tn the bill now submitted, an effort has been made
to obviate the difficulties alluded to, which, at least,
EXTENT OF THE SUBJECT. 143

as respects some of those mentioned, will, we think,
be found successful. It is proposed, in the 3rd section,
to provide, that the prothonotary shall keep a docket,
in which all the proceedings relating to mechanic’s
liens shall be contained. The object is, by concen-
trating all that relates to particular buildings, to facili-
tate inquiry and notice. In the 4th section, we pro-
pose, that the owner of a piece of ground, who may
be about to contract for the erection of a building
thereon, may, before the commencement thereof, de-
signate the boundaries of the lot, so as to fix the
amount which shall be considered as appurtenant to
the building. To this, we presume, there can be no
objection, as it will take place before any right ac-
crues to the mechanic, and is to be entered, in the
book we have mentioned.. The 5th, 6th and 7th sec-
tions, provide for the case of the owner having failed
to make such designation, and authorize the Court, on
the application of any person, interested, to appoint
commissioners, to examine and report on the proper
extent of these appurtenances, and provide for the
due execution of their duties, by the commissioners.
In the 8th section, power is given to the court, to stay
execution upon any judgment or other proceeding,
until the extent of the boundaries shall be designated
by commissioners, as aforesaid; and the 9th section
recognises the power, at present exercised by the
courts, of apportioning the proceeds of a sherifi’s sale
of real estate, according to the extent of the several
liens.

“These sections have been framed with a view to the
144 EXTENT OF THE SUBJECT.

just rights of the various parties interested, as well
judgment creditors and mortgagees, as the builders
and owners of the ground, and will be found, we think,
to provide, at least, some improvement on the present
law, by relieving the public and the parties from the
frequent and protracted litigation, to which the pre-
vailing uncertainty respecting the extent of lien, gives
rise.” +

In the Act of 1836, for the first time, there is an
express enactment upon the subject. It is as follows:
“The lien of such debt shall extend to the ground
covered by such building, and to so much other ground,
immediately adjacent thereto, and belonging, in like
manner, to the owner of such building, as may be ne-
cessary for the ordinary and useful purposes of such
building, the quantity and boundaries whereof, shall
be determined as follows:”

We need not copy, here, the sections which follow,
and which appear, at large, in the appendix. A brief
abstract will be more acceptable. Each prothonotary
is required to keep a “ Mechanic’s lien docket,” for re-
cording all descriptions, and all claims filed, with the
dates of filing them, and the names of owners, contrac-
tors, and lien claimants, alphabetically indexed. Any
person, who is about to build, may define, in writing,
“the boundary of the lot or curtilage appurtenant to
his building,” before commencing its erection; and,
when this writing is entered in the docket, all persons
shall be bound by the description. If the owner fails

 

1 Report of the Commissioners.
EXTENT OF THE SUBJECT. 145

to do this, either he, or any one “having a lien on”
the lot, “by mortgage, judgment or otherwise, or en-
titled to a lien by this Act,” may, before the commence-
ment of the building, apply to the court, to appoint
commissioners, to designate the boundaries. Thecourt,
after reasonable notice to all interested, may appoint
such commissioners, as they shall nominate, or, if
they cannot agree, such as it thinks proper. These
commissioners are to report to the court, by metes
and bounds, with courses and distances, and a draft,
if required, “the limits and extent of ground neces-
sary for the convenient use of such building, for the
purposes for which it is designated,” and their report,
when entered in the docket, and approved, is to be con-
clusive. If execution issues, before the boundaries are
thus ascertained, the court may stay it; and when they
are ascertained, may “order the sale to proceed, in
such manner, and for such part or parts, and in such
parcels, as shall be most convenient, for the adminis-
tration of equity among all persons interested.” If
the building, or adjacent ground be sold, by virtue of
an execution, “upon any mortgage or judgment,”
before the extent of the claimant’s lien is ascertained,
the court shall determine the rights of all concerned,
in the usual way.

This mode of defining, by anticipation, the bounda-
ries of the premises to be affected by the lien, is very
rarely adopted, as far as we can learn.

We find but two cases bearing upon this subject,
since the Act of 1836. One of them arose upon the
report of a commissioner to ascertain boundaries, under

10
146 EXTENT OF THE SUBJECT.

the sections just referred to; another, in a proceeding
to distribute the proceeds of a sheriff’s sale.

In the former, which was in the Common Pleas of
Lancaster county, Lewis, J., held, that a claim filed
against a church did not include a grave-yard con-
nected with it, in the usual way.’ ;

In the latter of these cases, a feigned issue was di-
rected, under the Act providing for the distribution of
the proceeds of a sale by the sheriff. The plaintiff,
in this issue, was a judgment creditor; the defendant,
one who claimed under mechanic’s claims; and the
question which arose was, what part of the land sold
was liable to the claims, and what not.

The levy was on a steam saw mill and ground
having a front of ninety feet. The sale was of a
steam saw mill and a lot sixty feet front, and also of
a lot thirty feet front, sold separately and distinctly.
The defendant asked the court to instruct the jury,
“that if the owner of the property laid off the ninety
feet, as necessary for the mill, and made the contracts
with the mechanics and material men, to bestow their
labour and materials, the plaintiff was not entitled to
recover.”

The court charged the jury as follows: “ You have
heard all the evidence, and have viewed the ground
and buildings, and are, no doubt, well prepared to
decide the case. Was the half lot necessary for the
convenient use of the building, for the purposes for
which it was intended? If so, you will find for the

 

? Beam v. First Meth. Ep. Church, 5 Pa. L. J. 287.
EXTENT OF THE SUBJECT. 147

defendant. If part of it was thus necessary, you will
determine what that part is, and the proportion of the
price for which this half lot was sold, which should be
appropriated to the mechanics’ liens. In determining
this question, you will consider the manner in which
it has been used by the owner of the lots and building,
what they said about it, what others have testified in
relation to it; and, also, your own observations, made
when on the ground, may tend to aid you in the de-
termination of this question.” The charge was sus-
tained by the Supreme Court on appeal.*

It would appear, from this latter case, to be a ques-
tion for the jury, how much ground is “necessary for
the convenient use” of the building, “for the purpose
for which it was designed.” But, whatever tribunal
is to decide it, it is, by no means, free from embarrass-
ment. In a mere question of boundary, there may be
but little difficulty, in a city; more, perhaps, in the
county. But the subjects of appurtenances, and of
fixtures, or accessions are not clear, and the usual dif-
ficulties in dealing with them are complicated with
new and peculiar views, arising under the Acts upon
which we are now commenting.

The case of Werth v. Werth, just referred to, in
which a barn was the subject of the lien, and the
novel duty was imposed upon the commissioner, of
ascertaining how much land was necessary for enjoy-
ing it, in the usual way, is an example of the kind of
questions that may arise. It is by no means clear, that

 

1 Keppel v. Jackson, 8 W. & 8. 328.
148 EXTENT OF THE SUBJECT.

the commissioner would have been wrong, if he had,
when the barn was given to him as a principal, found
the dwelling house, or even the whole plantation, an
incident or accessory, necessary to its proper enjoy-
ment. For a barn in the midst of a plantation, with-
out more, would be almost as valueless as a building
without the ground on which it is built. The same
remarks may be made in reference to other of the
structures usually called out-houses.

The same principles, of course, that govern, in as-
certaining what is necessary to the convenient use of
a single house, would apply, in deciding between ad-
joining houses, against which apportioned claims are
filed.

In practice, the parties, not only, seldom resort to
the mode of ascertaining boundaries pointed out by
the Act of 1836, but, very frequently, fail, altogether,
to describe, in their claims, the premises which they
seek to affect with a lien, by metes and bounds.

Thus, in one case, we find a claim sustained against
“‘a three storied brick house situated on the South
side of Walnut street, between Eleventh and Twelfth
streets;” in another, against “a lot on the North side
of Lombard street, West of Ninth street, adjoining
Stephen Smith’s lot, on the east;” in another, against
premises “in Dillersville, adjoining land of Peter Hentz
and the Pennsylvania Railroad.” We might mention
many others, in which no mention is made of distances,
lines of survey, feet or inches, or boundaries.’

 

1 See Post.
EXTENT OF THE SUBJECT. 149

Indeed, so much latitude is allowed, in this respect,
that a jury has often a double task to perform; first,
that of deciding whether the locality of the premises
is sufficiently indicated; and, secondly, what surface
and what appurtenances are included by implication.
It is not until the party comes to make sale under a
writ of levari facias, that an accurate description is
given.

This vagueness of description, however, has, per-
haps, one advantage. No one doubts, that if the party
filing a claim is able to do so with certainty, he had
better describe the premises with all the accuracy of
a deed or mortgage. But if he should do so, without
certainty, he may include too little, and be bound by
his claim. We know of no decision which leads us
to doubt the law laid down in M‘Donald v. Lindall,’
before mentioned, that the lien will not extend beyond
the land expressly described in the claim, even where
more might have been included.

We shall, in a subsequent chapter, state the mode
in which a plaintiff may reach a judicial ascertainment
of the extent of his lien, in respect of surface, and the
metes and bounds which are proper for his writ of
levari facias; and, also, the manner in which a defend-
ant may relieve himself from an excessive levy.
150 THE ESTATE AFFECTED.

CHAPTER III.

OF THE SUBJECT OF THE LIEN WITH REFERENCE TO THE
ESTATE.

It will be, at once, apparent, upon a reference to
earlier Acts, that, while tenants for years, tenants for
life, owners of equities, only, and even trespassers may
build, no part of any of their enactments throws light
upon the question, what estate is, in each instance, af-
fected by the lien, or passes by a sale under the pro-
ceedings to which the mechanics’ claim gives rise.

The point, however, soon suggested itself to coun-
sel, and the courts were obliged, by decision, to supply
the omissions of the statutes.

We have, heretofore, referred to many of the cases
which follow, in considering who may pledge the credit
of the building. We now notice them more fully.

In the case of Savoy v. Jones, a married woman,
cestut qui trust for life, under a marriage settlement,
which gave her husband a contingent remainder for life,
and other interests over, erected a building, during her
coverture. One of the material-men filed a lien against
her, the husband and the trustee. The wife died,
while the proceeding under it was pending, and, upon
her death, the point was made, that the estate of the
THE ESTATE AFFECTED. 151

person who erected the building being ended, the lien
was gone. It was held by the court, however, that
the lien arose from a credit given to the building, not
to the owners; that all the remainder men and rever-
sioners were benefited by the building, and that it
was just that the whole estate should be bound."

In the case of Barnes v. Wright, the court intimated,
that this point could not be considered as definitively
settled, and might be reconsidered.” In a case, too, in
the Circuit Court of the United States, the leaning
seems to be against the doctrine announced in Savoy
v. Jones.®

But in the case of Bickel v. James, Gibson, Ch. J.,
speaking of the Act of 1836, says :—“ By the primitive
Act of 1803, supplied by the Act of 1806, on which,
with the supplement of 1808, the present question de-
pends, the legislature hypothecated buildings for debts
contracted in the construction of them. No more was
contemplated in it, than the usual case of a builder,
on his own ground, and, hence, in an action against
the legal owner, a lien was not allowed for materials
furnished on the order of a vendee, by articles of agree-
ment, because, an action to enforce it could be main-
tained only on the contract by which the debt was
incurred, and of which the len was an accessory.
Steinmetz v. Boudinot, 3 Serg. & Rawle, 541. The
legislature had provided no means of enforcement but

 

12R. 350. And see Anshutz v. M‘Clelland, 5 W. 487.
22 Wh. 193.
82 Wash. C. C. R. 83. And see Kline v. Lewis, 1 Ash. 32.
152 THE ESTATE AFFECTED.

an action; and it could, of course, be maintained only
against the contractor. Had it been brought against
him, in that instance, it would have raised a question
like the present, but depending on different provisions;
yet it might not have been impossible to maintain,
even under the Act of 1803, that an equitable vendee
was an owner, within the purview of it. That it
would, certainly, have been so adjudged, I pretend
not to assert; for the lien having been but an acces-
sory of an inchoate estate, might, readily, have been
postponed to the legal title; and I think it probable,
that a Mechanic’s Lien, like a judgment, would have
bound only the equitable estate of the vendee. But
the glimpse which the legislature then had of the sub-
ject, was barely sufficient for a sketch of its first lines;
for it was soon found, in the city of Philadelphia, and
those districts of the county to which the primitive
Act was confined, that contracts for labour and ma-
terials were, usually, made, not by owners, building
for themselves, but by architects employed to build
and contract on their own credit. Hence, a radical
change in the principle of hypothecation, by the Act
of 1806. The lien was, no longer, an accessory of
the owner’s title, but became an independent incum-
brance; insomuch, as not to require a title to have been
in him at all. Every thing about ownership was sup-
pressed, and the building, itself, became the principal
debtor ; but still, answerable, only, by an action against
the contractor.

“Then came the supplement of 1808, which gave, in
addition, a scire facias, jointly, against the owner and
THE ESTATE AFFECTED. 153

the contractor; and strictly, as a proceeding in rem.
As was recognised in Savoy v. Jones, 2 Rawle, 343,
the credit, under these two Acts, was, primarily, given
to the building, and though the builder, also, was lia-
ble on his contract, the action, so far as it was used
to enforce the lien, was, also, a proceeding in vem. It
is entirely omitted in the Act of 1836, which has su-
perseded all antecedent legislation on the subject.
But the project of the legislature, in the preceding
Acts, has been, as it still is, to secure to the mechanic,
or material man, the fruit of his labour or materials,
by selling the building, of which it happened to be a
component part, without regard to the ground. The
latter was a subject of so little consideration, as not
to have been mentioned in either of them; and, that
it is sold as an appurtenance of the building, is because
it could not be severed fromit. But, where the build-
ing and the ground fetch, as they must generally do,
more than the amount of the liens, I see not what
difficulty there can be, according to an obvious prin-
ciple of equitable conversion, in substituting the sur-
plus purchase money, for the realty which produced
it, and giving it, respectively, to the owners of the fee,
in proportion to their interests in it. By this, there
can seldom be a loss, and never an injustice; for the
question is, whether the building shall follow the
ownership of the ground, or the ground follow the
ownership of the building, If decided for the claim-
ant, the owner will, in most cases, be paid for his
ground; but if for the owner, he will, in all cases, get
the benefit of another’s uncompensated labour or ma-
154 THE ESTATE AFFECTED.

terials, in addition to it. Were the building sold with-
out the ground, the interests in the freehold would
not be disturbed; but, as that is impracticable, a con-
sequent loss may, sometimes, have to be shared by
claimants, under the same title, of separate interests
in the fee.”*

In this case it was held, that a vendee of land under
articles of agreement, who had not yet acquired a le-
gal title, but who entered and built, subjected the fee
simple of the land to his lien, and that a sale under it
vested a complete and absolute title in the purchaser.

The same doctrine was announced, with equal posi-
tiveness, by Kennedy, J., in a subsequent case.”

In the case of O'Conner v. Warner, which was de-
cided after the Act of 1840, to which we are about to
refer, Gibson, Ch. J., says, upon this subject: “It
would puzzle those who controvert the principle of
Savoy v. Jones, and the subsequent cases of that
stamp, to give a reason for the faith that is in them,
beyond the apparent hardship of the case. The debt
secured by the Act of 1806, was the debt of the
building, not of any owner of it; the lien was on the
building; the process was against the building; and
the building itself, not the builder’s interest in it, was
directed to be sold. The debt was charged on it, as
taxes are charged on unseated land, without regard to
the ownership; and, we are bound to say, the build-
ing was sold like unseated land, without!regard to
the ownership. To do otherwise, would have re-

 

17 W.9. ° Holdship v. Abercombie, 9 W. 53.
THE ESTATE AFFECTED. _ 155

quired us to interpolate the very provision which
has been recently, but incautiously, interpolated by
the legislature, and thus, perform an act of judicial le-
gislation, not less abhorrent to the principles of the
constitution, than an Act of legislative adjudication.
We could not say, that the estate in expectancy was
excluded from the lien by the spirit of the Act, or that
it would have been protected, had the case been fore-
seen. The avowed object was, to protect the mecha-
nic or material man, without regard to any one else;
and, that the reversioner or remainder-man was in-
tended to be put on a footing with the tenant in pos-
session, is evident from the clause which authorized
“any person interested in the building” to call for a
formal entry of satisfaction; for it would have been
absurd to give him a right to expunge the evidence
of the lien, if he might not be affected by it. And
this liability of separate interests, to contribution to-
wards a general burden, though sometimes attended
with hardship, in practice, was just in its principle,
inasmuch as it was calculated to produce the results
which equity produces, when it apportions a general
charge among owners of the separate parts of a fee,
in proportion to their relative value and the benefit
received by each from the consideration of the incum-
brance. Besides this, the injustice of allowing the
claimant to follow his materials, or the products of
his labour, into the hands of a reversioner or a re-
mainder man was no greater, than the injustice of al-
lowing him to follow them into the hands of the te-
nant in possession, who was as much a stranger to the
156 THE ESTATE AFFECTED.

debt, and who did no more than authorize the erection,
but without authorizing the contractor to charge the
building with the price of it. The law did that; and it
was just as unconscionable to affect the ownership of the
particular tenant by it, as it was to affect the ownership
of his successor, who derived equal or greater benefit
from the erection. It was, for the very reason, that
the operation had to do with the contractor, and not
with the owner, that he was allowed to charge the
building, without regard to the ownership of it, of
which he could know nothing. The fallacy is, in
imagining, that he stands more in privity with the
tenant in possession, than with those that are to come
after him. He has no connexion with any of them;
and, therefore, it is, that the statute allows him to
charge the building, without discrimination, in regard
to their particular interests. Nor is such a statute a
novelty in the history of legislation. The 21 Jac. 1,
ce. 19, subjects a bankrupt’s entailed estate to pay-
ment of his debts, and makes the conveyance of the
commissioners good against the issue in tail, to say
nothing of those statutes which enable tenants in tail
to make leases for three lives, or to forfeit the estate
for treason, or to incumber it with debts to the crown.
Our own statute for barring entails, by the acknow-
ledgment of an assurance, in open court, enables him,
not only, to disinherit the issue in tail, but, also, to di-
vest the estate of the fee simple remainder man.
Why, then, should it be thought a thing incredible,
that the legislature intended to charge more than the
interest of him who caused the building to be erect-
THE ESTATE AFFECTED. 157

ed? Ourlegislation, for almost forty years breathed one
uniform spirit of kindness to the operative, and it was
not without our special wonder, that we saw it, in
1840, breathe a hostile one. The manifestation of
its former kindness is visible in the enlargement of
the system, so as to embrace ships, and even curb-
stones, and in the gradual diffusion of it over almost
the whole state, without changing, or so much as
touching the controverted interpretation. The expe-
rienced counsel who prepared the revised Act of 1856,
with Savoy v. Jones before their eyes, saw nothing in
it which called for correction. It is supposed, how-
ever, that the dayspring of 1840 revealed its moral de-
formity, and taught the legislature to shift the bur-
den of its injustice from the shoulders of the inno-
cent reversioner or remainder man, to those of the
more innocent purchaser, who had paid his money on
the faith of laws constitutionally enacted and ex-
pounded. No man can assent to a proposition so
monstrous; yet it might be inferred from the literal
import of the words, that such was the design; and
it shows the dangerous tendency of legislation so hur-
ried as to produce statutes which are a surprise on
those who have enacted them. The section of 1840,
even in its prospective operation, goes far to sap the
foundation of the mechanic’s protection; and we can-
not think the legislature was apprized of the drift of
the section, when it struck the blow at interests so
long and so anxiously cherished. When the mechanic
can sell no more than a lease burdened with a rent,
to the extent of its value, his lien will be worthless ;
158 THE ESTATE AFFECTED.

and, when a grantor of ground let on a perpetual
lease, for the very purpose of being built on, enters,
for non-payment of the ground rent, he will, necessa-
rily, hold paramount to mechanic’s liens. Or, where
the person in possession has but an equitable title,
those liens will be postponed to the vendor’s claim for
the purchase money. There must be many such
cases.” *

The case of M‘Clelland v. Heron, which, also, was de-
cided after the Act of 1840, but upon facts arising
before its passage, led some to doubt, whether the
doctrine of Savoy v. Jones had been firmly established.
But a careful examination will show, that it ought to
have had no such effect. It was the case of a levy,
under proceedings upon a mechanic’s lien, upon “all
the right, title, interest, and claim of the defendant, of,
in and to a certain brick tan-house.” The defendant
was but a tenant for years, and the court held that
only the term passed.”

The nature of the levy was enough to distinguish
this case from others to which we have referred. But
Burnside, J., who delivered the opinion of the court,
uses language which seems to cast some doubt on them.

In a later decision, however, Gibson, Ch. J., says:
“Let us not produce a conflict of decisions, for a doubt-
ful interpretation. The judgment in M‘Clelland »v.
Herron, 4 B. 67, did not produce it, for no more was
ruled, than, that a levy and sale of the term did not
pass the fee.”*

 

TAW.&8.223. 243.63. % Haworth v. Wallace, 2 H. 121.
THE ESTATE AFFECTED. 159

We ought to mention, here, however, before we
refer to the Act of 1840, and its effect, that there were
exceptions to the application of the doctrine of Savoy
v. Jones.

In the case of Bruner v. Sheik, an insurance com-
pany, in discharge of its liability under a policy of insu-
rance, rebuilt a dwelling upon land of the insured.
The mechanics and material men were held to have
no liens.

Gibson, Ch. J., says: In Siner v. Moore, it was de-
termined, at the last term in Philadelphia, that the
possession of the person whose title is to be incumbered,
must be an actual, not a constructive one; but, here,
the company, at whose instance the lumber was fur-
nished, had neither possession nor colour of title. It
had no more than an incidental right to enter, in order
to rebuild, without, in the least degree, displacing the
possession of the insured. Nor were the articles fur-
nished for their benefit, but for the benefit of the com-
pany, which was bound by its election to rebuild.” *

It is proper to add here, that the material man, in
this case, appears to have had notice of the relations
of the parties.

It would, of course, follow, that a mere trespasser
upon land could not bind the adverse title by build-
ing. This had not been expressly held, but, prior to
the Act of 1840, Gibson, Ch. J., says: “It may be,
however, that an adverse title would not be affected.
A trespasser in possession is not allowed to charge

 

19 W. & 8. 119.
160 THE ESTATE AFFECTED.

the owner for adverse improvements; and it may not
have been the design of the legislature to give a
greater power to agents in his employment, who are
also trespassers.” *

We now come to a new period in the history of this
subject. By an Act of 1840 it was enacted that the
lien should, “not be construed to extend to any other
or greater estate in the ground on which any build-
ing may be erected than that of the person or persons
in possession at the time of commencing the said
building, and at whose instance the same is erected,”
nor should “any other or greater estate than that
above described be sold by virtue of any execution
authorized or directed in the said Act.”

This Act is said, by Gibson, Ch. J., in one of his
decisions, to have been “produced” by the case of
Bickel v. James.”

In cases which arose under this Act, it was held,
that it affected liens filed, as well, before, as after its
passage, and was not unconstitutional, by reason of this
retroactive effect, because it only modified a remedy.”

Under it, of course, the earlier cases are inapplicable.
They only govern titles which were created under the
law before its passage. By its provisions no one who
builds can bind a greater estate than he has himself.
And the knowledge, simply, or even the assent of the
owner of the fee, cannot, as it would appear from the

 

1 Bickel v. James, 7 W. 12. ? Church v. Grifith, 9 B. 119.
5 Kvans v. Montgomery, 4 W. & 8. 218. O*Conner v. Warner,
id. 223. And see unte, p. 41.
THE ESTATE AFFECTED. 161

words of the Act, subject his estate to the lien. The
erection must be, at his “instance,” to produce that re-
sult, and he must be the person in possession, at the
time of commencing the building.

We must not omit, in this connexion, a case which
arose after the Act of 1840, in which it was held, that,
where the person at whose instance the building was
erected had but an equitable title, at the time the
work was done and the lien attached, but, afterwards,
acquired the legal estate, the latter, at once, became
bound; the rule in such a case being the same with
that which prevails with reference to judgments.’

And, bearing upon the same point, is the decision in
Gaule v. Bilyeau, already quoted, in which the person
against whom the claim was filed, had leased the pre-
mises for seven years, with the express provision of
purchasing a part of it, upon a designated ground
rent, at any time within three years, had erected the
building, and, very soon afterward, availed himself of
his privilege of purchasing, and received a deed for the
property. Lewis, Ch. J., held, that the tenant, having
a right to acquire the fee when he built, must be
treated as having an equitable estate in the land,
which was the subject of a claim.’

We ought, also, to observe, that it was subsequently
to the Act of 1840, that the decisions were made, to
which we have before referred, in respect to erections
by tenants of leasehold estates, and their character
as personalty. It is most distinctly intimated, in

 

1 Lyons v. M‘Gaffey, 4 B. 126. 2 See ante, p. 93.
11
162 THE ESTATE AFFECTED.

these decisions, that prior to the Act of 1840, a build-
ing by a termor, even for the purpose of his trade,
would have affected the fee simple; that an “erection
or construction by any one who had an estate in the
land, as distinguished from a mere trespasser, bound
the whole estate; though, as between the parties in-
terested, the present estate might have been a chattel
interest, only, and the building personalty: but that
after the passage of that Act, the lien was left to
stand upon the estate of the person in possession, and
building, alone, and, when that was a mere chattel
interest, the building partook of the same character, and
was not subject to proceedings under the Acts which
we are considering, which apply only to real interest.
PARE LN,

OF THE NATURE, AND EFFECT, AND OF THE DISCHARGE
OF THE LIEN.

CHAPTER I.
GENERAL REMARKS ON THE LIEN.

TE mechanics’ lien is one of a peculiar character.
It differs, in some respects, from any other lien known
to the law. Those which most resemble it are muni-
cipal liens, for public dues.

It may begin without any writing, entry or record,
whatever; and, when it attaches, it has relation back,
at once, to a period, often doubtful and undefined, and
the ascertainment of which depends upon evidence in
pays. It lasts, without any further form or notice,
for a certain period, and may, then, be further con-
tinued, by filing a claim and keeping it alive by pro-
cess.

The extent of the lien, as to amount, has no limit
but the honesty and moderation of the creditor, who,
in many instances, claims more than he hopes to re-
cover, so as to be sure to comprehend what he can
actually prove. Double, treble, quadruple claims
may be filed, for the same debt. Indeed, often, if one
164 GENERAL REMARKS ON THE LIEN.

were to form his opinion of cost from the alleged
claims of mechanics and material men, and add to
their aggregate what he knew had already been paid,
’ in cash, to the contractor, he would have a most ex-
aggerated idea of the expense of construction.

A purchaser or mortgagee must see the premises,
and, if he finds a house newly erected, or in course of
construction, he must refuse to purchase or to lend
his money, until, in some mode or other, he can as-
sure himself that it is free from this species of incum-
brance; and, even then, he will be in danger, until a
certain interval has elapsed, after the completion of
the building. For work done, or materials furnished,
subsequently to his purchase or loan, will have a pri-
ority by reason of their relation back to the com-
mencement.

And, after the house is completed, and the interval
spoken of has elapsed; when the time has come for
the creditor to put his claim on record, or lose it, such
license is allowed in the form of the claim, in the
description of the premises, their locality and extent,
that an office search is only the beginning of inquiry.

These remarks will give a faint idea of the trouble
and danger which arise from this class of liens.

The claim which continues the lien, and affords a
basis for the proceedings which lead to the recovery
of the amount due, is purely a proceeding in vem.
So entirely is it a remedy against the land alone, that
if, pending its progress, the premises are sold, the
claimant cannot proceed even for costs.’

 

1 See Post.
GENERAL REMARKS ON THE LIEN. 165

The most important aspects of the nature and
character of this lien are with reference to its com-
mencement, its continuance, its relation to other liens,
and its release, satisfaction or extinguishment. In
this order we shall pursue the subject.
166 COMMENCEMENT OF THE LIEN.

CHAPTER II.

OF THE COMMENCEMENT OF THE LIEN.

Tue Act of 1803 made the debt a lien, “before any
other lien which originated subsequent to the com-
mencement of the said house or other building.” The
words of the Act of 1806 are the same. Those of the
Act of 1836.run thus: “The lien for work and ma-
terials, as aforesaid, shall be preferred to every other
lien or incumbrance which attached upon such build-
ing and ground, or either of them, subsequently to the
commencement of such building.”

The commencement of the building is, of course,
the first work done upon the ground; the striking of
the spade into the earth, in digging the foundation,
or if there be no such foundation, the laying of the
first stone or timber. No case decides, that work done
off of the ground can make acommencement. These
seem to be very clear propositions; but the cases show
that they do not always relieve us from difficulty.

A change of ownership during the progress of the
building does not, it appears, make a new commence-
ment.

In the case of the American Fire Insurance Co. v.
Pringle, an unfinished house was sold, and a mortgage
given by the vendee to secure the purchase money.
The vendee then went on with the building. It was
COMMENCEMENT OF THE LIEN. 167

held, that, as to the mechanics and material men em-
ployed by the vendee, after his purchase, the “com-
mencement” of the building was the original com-
mencement, by the vendor, and that their liens cut
out the mortgage. To this opinion, Yeates, Justice,
dissented.*

A similar decision was made, however, in the case
of Hern v. Hopkins?

In Pennock v. Hoover, which was a case substan-
tially resembling the former, the court says: “ By the
terms of the Act of Assembly, before, in part, recited,
the liens thereby given to mechanics and material
men, are made to commence, expressly, from the com-
mencement of the building of the houses, without
reference or regard to the persons under whose direc-
tions or ownership of the property they are begun,
continuing to be the same, at whose instance the ma-
terials, from time to time, shall be furnished, and the
labour performed, throughout the subsequent stages
of the work, until finished. It is not the commence-
ment of the right of ownership, or claim to the pro-
perty; nor yet the time at which such right may be
first exercised, in contracting for materials, and with
mechanics, for the purpose of continuing the building,
that is to fix and regulate the commencement of the
liens, on behalf of those furnishing materials, and per-
forming the work; nor is it the time of furnishing ma-
terials, or the time of commencing or finishing the
work, but the time of commencing the building of the

 

128. &R. 188. 2138. & R. 269.
168 _ COMMENCEMENT OF THE LIEN.

house, that gives date to the lien. Now, in point of
fact, as long as the design or use for which the house
is intended, shall continue to be the same, a change
of ownership, after the building of it is commenced,
does not, and, in the very nature of the thing, itself,
cannot change the commencement of the building of
the house; that must, still, continue to be the same,
notwithstanding the right of property in the ground,
and the house begun upon it, shall have been changed
subsequently, and passed through twenty or more
different hands. Neither is it easy to conceive, how
a change made in the plan of the house, after it has
been commenced, by enlarging or contracting, or, in
any other respect, changing the plan of it, as long as
the original design of its character is retained, can,
with propriety, be said, to change or give a new com-
mencement to the building of it. And the Act of
Assembly of 1806, certainly, contains nothing, which,
in the slightest degree, militates against what, I think,
may be, safely, considered the universal understanding,
as to what constitutes the commencement of the build-
ing of a house; and that is, the first labour done on
the ground which is made the foundation of the build-
ing, and to form part of the work, suitable and neces-
sary for its construction.” ?

In several of these cases, however, it is intimated
that a change of circumstances would alter the law.
Thus in the American Fire Insurance Co. v. Pringle,
the court say :—“ Houses are sometimes finished, suf-

 

15 R. 307.
COMMENCEMENT OF THE LIEN. 169

ficiently for particular purposes, such as ware-houses
or stores, but not for dwelling-houses; and they may
remain in this situation for years, and then be com-
pletely finished. In such cases, the completion of the
work might fairly be considered as a new building,
and ought not to be connected with the first part of
the building so as to give a lien from the original com-
mencement.” And, in Hern v. Hopkins, the same
judge says:—“Suppose, for instance, a ware-house
should be, originally, built and finished, and after re-
maining for some time, in this situation, it should he
converted into a dwelling-house,—there the new work
might be considered as a new building.”*

And, where, instead of a private sale of the premises,
there has been a sheriff’s sale, which discharged all
previous liens, the work done and materials furnished
thereafter, must have reference to a new commence-
ment, subsequent to the sale. Thus, in Stevenson v.
Stonehill, the court say :—“ Admit that the lien com-
mences with the first work, the sheriff's sale extin-
guishes that lien, totally. If any lien in favour of
material men or mechanics is found to exist, after the
sale, it must commence after the sale, for, so far as it
existed before the sale, it has totally ceased.”?

The result of these cases appears to be, that when,
between two periods of continuous and substantial
work upon a building, there is an interval, it does not,
ordinarily, so separate them, in law, as to lead to the
doctrine of two distinct “erections” and two distinct

 

1 Ante. 25 Wh. 305. See, also, Leib v. Bean, 1 Ash. 208.
170 COMMENCEMENT OF THE LIEN.

commencements; but the two periods are treated pre-
cisely as if no interval had occurred; but, that this
ordinary rule or prima facies may be rebutted by a
very great lapse of time ; or by an entire change, during
the interval, of the whole plan and object of the house;
that a change of title, during the progress of the build-
ing, by private sale, will not affect mechanics, with re-
ference to whom the building is treated as if no change
had occurred; but, that a sheriff’s sale will make a new
commencement, to which any work done after it will
have relation.

Where, however, the work done, after the interval
of cessation, is not of a substantial character, impor-
tant in quantity and amount, but slight and trivial;
in such a case, the question of a double erection or
commencement could scarcely be raised, under any
circumstances. The last work of the interval was
very great, would be considered extra, additional work,
on the same footing with alterations and repairs not
done, technically “for or about the erection or con-
struction” of the building, and not the subject of the
lien.

But this subject we present more fully in the suc-
ceeding chapter, in treating of the continuance of the
lien.

We may remark, here, in passing, that, in the case
of several adjoining buildings, and an apportionment,
each apportioned part of the debt may relate back to
a different date for the commencement of its lien,
unless a block of houses is such a unity that the com-
mencement of any one is the commencement of all.
COMMENCEMENT OF THE LIEN. 171

And this view of the unity of the block, though it re-
ceives some countenance in a decision of Gibson, Ch.
J., is yet, apparently, in conflict with this language
of the court in Pennock v. Hoover,—“ Hence it would
extend itself to all the houses or buildings actually
commenced, for which the materials were furnished
or work done under the same contract, and would be-
come a joint lien for the whole amount of the debt,

commencing on each house with the commencing of
the building thereof.” *

 

1 Chambers v. Yarnall, 8 H. 265. +5 BR. 818.
172 CONTINUANCE OF THE LIEN.

CHAPTER III.

OF THE CONTINUANCE OF THE LIEN.

By the Acts of 1803 and 1806, the lien of the me-
chanic and material man continued for two years
JSrom the commencement of the building, without any
claim filed, or any proceeding, whatever. It then
ceased. No further legislation altered this rule, until
the Act of 1836.

By that Act it was provided, that the lien should
continue “until the expiration of six months after the
work shall have been finished or materials furnished,
although no claim shall have been filed therefor; but |
such lien shall not continue longer than the said pe-
riod of six months, unless a claim be filed, as afore-
said, at or before the expiration of the same period.”
This is the provision which is now in force.

It becomes an important matter for inquiry, under
the Act of 1836, by what rules the period from which
the six months is to be calculated, is to be ascertained,
in each of the numerous and varying cases that may
occur.

We may say, upon this subject, in the outset, that
it has been held, in several cases, to be a question for
the jury, when the work was finished and the mate-
rials furnished.’ But, in its directions to the jury, the

 

" Driesbach v. Keller, 2 B. 79. Holden v. Winslow, 6 H. 160.
CONTINUANCE OF THE LIEN. 173

court must be governed by certain principles; for
there are aspects of the question which are undoubt-
edly matters of law.

It was settled, by late cases, that, when materials
were furnished for a building, or work done, at se-
veral distinct periods, upon distinct orders, not under
one continuing contract, each period gave rise to a dis-
tinct debt, which stood by itself, with reference to the
question of time which we are discussing. The first
of these cases was somewhat of a surprise to the pro-
fession, and established a rule in conflict, at least,
with the usages of mechanics, and the impressions of
many members of the profession.

In that case, materials had been furnished to a
dwelling from time to time, as they were ordered,
and within six months from the time of furnishing
the last a claim was filed. The court held, that every
item of the bill not furnished within six months had
lost its lien, and say: “but a contractor who goes to
a lumber merchant, and obtains lumber, as he needs
it, for the job on hand, makes a new contract at each
purchase, and the statute bars all of the account more
than six months old at the filing of the lien.”*

The same doctrine was again announced, by the
Supreme Court, in a subsequent case. In delivering
the opinion of the court, Lewis, Ch. J., says: “More
than eleven years ago, it was decided, in the Common
Pleas of a neighbouring county, that, where materials
are delivered, at different times, and there is no evi-

 

1 Phillips v. Duncan, 12 Leg. Int. 5.
174 CONTINUANCE OF THE LIEN.

dence, that they were furnished under an entire con-
tract, all the items delivered more than six months
prior to the filing of the lien are barred by the sta-
tute limiting secret mechanic’s liens, (Gilbert Hill’s
Estate, 3 Penna. Law Jour., 323.) A practice has
prevailed, in the interior, in accordance with this opi-
nion, and that practice has, recently, received the
sanction of this court, in an opinion delivered by Mr.
Justice Woodward, in Duncan v. Phillips. It is well
settled, in the construction of another statute of limi-
tations, that, where the items in an account are all on
one side, and there is no evidence that they were fur-
nished under an entire contract, the items over six
years old are barred. 2 W.&8. 137. The differ-
ence between the two statutes of limitations is, that, in
the first, six months is the period which bars, and, in
the other, six years. This, certainly, makes no differ-
ence in the principle, and does not authorize a differ-
ent rule of construction. But there is another-differ-
ence. The first mentioned statute is designed to
protect creditors from being injured by secret liens
not placed on record. The other operates in favour of
the debtor himself, who, of course, knows all about
the extent of his indebtedness, and, in honesty, is
bound to pay it. ‘If this difference between the two
statutes should authorize a different rule of construc-
tion, it should still be more rigid against secret liens,
injuriously affecting those creditors who have given
credit, in ignorance of their existence. The filing of
a lien is done with so little trouble or expense, and its
propriety is so obvious, in order that others may be
CONTINUANCE OF THE LIEN. 175

guarded from injury, that a creditor, who neglects it,
has no reason to complain,.if he fails to gain a pri-
ority over others who have complied with the law.
The case of Johns v. Bolton, 2 Jones 359, was de-
cided on the effect of a retrospective statute, and does
not touch the principle involved in this case. The
lien, in that case, was created by an act passed two
years after the work was done, and the claim filed.*

To meet these decisions, the Act of April 14th,
1855, was passed, by which it is enacted, that, “when-
ever the items of a mechanic’s and material man’s bill
for work done, or materials furnished, continuously,
towards the erection of any new building, are, in any
part, bona fide, within six months before the filing of
the claim therefor, the lien shall be valid for the
whole; and any lien heretofore filed, within six
months after furnishing the last item of a continuous
bill, shall be good and valid, the same as if the whole
bill were furnished within six months.”

The use of the words “continuously,” and “conti-
nuous,”’ in this Act, will lead to questions hereafter,
Perhaps some aid in construing the provision may be
gained from cases to which we shall hereafter refer,
in this chapter.

The decision, last referred to, expressly excludes
from their application the cases in which the work is
done, or the materials are furnished under a continu-
ing contract. Thus, in Phillips v. Duncan, the Court
say: “Where materials are furnished under a special

 

1 O’Neil v. Flanigan, 12 Leg. Int. 6.
176 CONTINUANCE OF THE LIEN.

contract, as for the brick or lumber of a particular
house, the lien may be entered within six months
after the delivery of the last item, for that is the
completion of the contract.” And the same doctrine
had, frequently, been announced, in prior cases.’

It is manifest, that, notwithstanding the Act of
1855, a case may occur, where one delivery of mate-
rials, or portion of the work, is so far separated and
distinct from one another, that the most liberal con-
struction of the word “continuously” will not be sa-
tisfied. The question that arises here resembles,
somewhat, that which arose, in the preceding chap-
ter, in treating of the cases in which there were two
commencements of-the building, or, where the last
work, not being of sufficient dignity or importance
to be called a new commencement, was held to be
mere addition or repair, and not within the Acts.

In an early case, a question arose, whether materi-
als furnished for a vault were the subject of a claim.
The court below, in its charge to the jury, said: “The
vault, it appears, was a part of the original plan of
the building, and, if so, a part of the building; not an
addition after the house was completed.” In this
case, no question of time seems to have been in-
volved, but only that suggested in the extract which
we have given.”

 

1 Bartlett v. Kingan, 7 H. 341. Yearsley v. Flanigan, 10 H.
489. Shaffer v. Hull, 3 Pa. L. J.321. Dalton, Christman & Co’s.
Ap. 12 Leg. Int, 180.

2 Harker v Conrad, 12 §. & R. 303. See, also, Presb. Ch. v.
Allison, 10 B. 418.
CONTINUANCE OF THE LIEN. 177

In Johns v. Bolton, it seems to have been held by
the court below, and the judgment affirmed by the
Supreme Court, that, where the work had been com-
pleted, so far as the contract required, more than six
months before the claim was filed, but, within the six
months, extra work was done, at the request of the
defendants, the six months began to run from the
completion of the extra work.’ It is proper, however,
to remark, that this case, which was, at any rate, en-
titled to but little weight, was overruled, clearly, by
that of Phillips v. Duncan.’

In Holden v. Winslow, a question arose, as to the
time of finishing a mill. The lien was that of the
contractor. The work was commenced in the spring
of 1847, and continued for more than a year, when
the contractor left the work, as he alleged, for want
of materials, which the defendant was to furnish; and
though he returned once or twice, prior to November,
1849, he did not complete the mill. In October, 1849,
the defendant sold the mill, and, in November, the con-
tractor commenced his work, and finished it in De-
cember, 1849. There was testimony, that the mill was
not considered finished in 1848. The court say:—
“The question is, whether the topping out done by the
mechanic was part of the original agreement, and was
the crowning work of his job, or not, and, whether it
was done in due time, without unreasonable delay, by
consent of Winslow; or, whether it was a distinct con-
tract, entered into after his first work was finished.’”®

But, in Yearsley v. Flanigan, a different view was

 

19 J. 339. 2 Ante, p.173. * 6 H. 160.
12
178 CONTINUANCE OF THE LIEN.

taken of the subject. The court say:—‘ Where a
contract is made with a bricklayer, to do all the brick
and stone work, about the erection of a building, which
contract, by its terms, includes the laying of the pave-
ment, as it is an entirety, a mechanics’ lien may be
filed within six months from the completion of the
work, even though it may all have been done, except
the pavement, more than six months before the lien
was filed. The work upon the pavement may be in-
cluded in the len.

“Tf laying the pavement is done under a separate
contract from that of constructing the walls and other
masonry, and six months is suffered to elapse from
the last work upon the building proper, before the lien
is filed, it is, then, too late, as it cannot be connected
with the work in laying the pavement.

“Even where the contract is entire, if the building
is finished, and the contract treated as complete, by
the parties, and. a considerable period of time is suf-
fered to pass, before the pavement is laid, and inter-
vening rights have attached, the lien would not be in
time, if not filed within six months from the date of

_the last work upon the building, itself, excluding the
pavement.” ?

These are all the cases of which we are aware,
bearing upon this difficult subject; and we must leave
it to the developments of future decisions.

The lien continues for the six months referred to in
the Act without any claim filed. Even the filing of

 

"10 H. 491.
CONTINUANCE OF THE LIEN. 179

a defective claim, or several ‘of them, does not disturb
it. It is not destroyed during the period over which
it extends, without any process, by an abortive effort
to give it permanence.’

We shall mention, in this connexion, a case in which
it was held, that, where materials were furnished on
the 22nd day of January, the claim had expired be-
fore the 23rd day of July; and that a claim then filed,
to continue the lien, was too late.”

The next step, in the progress of the subject, is the
continuance of this hen, after the period to which it
continues, without process, by filing a claim. The
claim must, of course, be filed before the lien of the
debt expires, under the doctrines just announced.

By the Act of 1803, the debt could not remain a
lien longer than two years from the commencement
of the building, unless an action were instituted, for
recovery thereof, or the claim filed, within six months
after performing the work or furnishing the materials.
The Act of 1806 was to the same effect.

It was held, under these Acts, in the case of Lewis
v. Morgan, that, upon a claim filed after the six
months, the party could not obtain a judgment, by suing
out a scire facias, even though it were sued out with-
in the two years. The same doctrine was held in
the subsequent case of Hern v. Hopkins, in which the

 

* Bournoriville ». Goodall, 10 B. 133. Chambers v. Yarnall, 3 H.
267. Pennock v. Hoover, 5 R. 318. Hays v. Tryon, 2 M. 208.

2 Hoops v. Parsons, 2 M. 241. ‘

3115. & BR. 234. :
180 CONTINUANCE OF THE LIEN.

court say, that “the claim, not being filed within six
months, acquired no validity from the act of filing.” *

The same doctrine was laid down, in regard to the
institution of an action, instead of filing the claim.
If done after the six months, it had no efficacy to con-
tinue the lien.* And in Williams v. Tearney, where
the creditor had obtained a bond, with warrant of at-
torney, and had entered it for judgment, within the
two years, he was held not to have continued his lien,
thereby, beyond the two years.

By the Act of 1836, the lien, as we have seen, does
not continue longer than six months, unless a claim
be filed before the expiration of that period. No pro-
vision is made for its continuance in any other manner.

The Commissioners, upon this subject, say: ‘In this
section, the provision of the first section of the Act of
1806 is, materially, altered. The original has given
rise to great doubt and litigation; besides which, it is
believed to operate injuriously upon the owners of pro-
perty and incumbrances, by the uncertainty in which
it keeps them, for an unnecessarily long period. ‘The
commencement of the building, from which the two
years begin to run, does not afford that general rule
which is desirable; some few buildings requiring more
than two years to finish, while others are completed
in much less time. Besides, it is, in most instances,
very difficult for third persons to ascertain, when the
particular work was performed, or materials fur-

 

1138. & R. 269, ? Cornelius v. Uhler, 2 Br. 220.
588. &R. 58.
CONTINUANCE OF THE LIEN. 181

nished, from which the six months run; consequently,
the risk of purchasers of real estate is greatly aug-
mented. The limitation in the section now sug-
gested, seems more simple and less likely to embarrass.

As long as the building is in progress, sufficient no-
tice is given, and the period of six months after it is
finished seems to give ample opportunity for the filing
of the lien.”

The next question that arises, is with reference to
the duration of the hen when continued by claim or
process.

Under the Acts of 1803 and 1806, a claimant, by
instituting suit, or filing a claim, within the six months,
obtained a lien of indefinite duration.t Of the form and
character of these proceedings, under the earlier Acts,
we shall treat, hereafter, when we come to the subject
of practice. .

By the Act of March 30th, 1831, the lien was con-
fined to the period of five years from the time of filing
the claim. This Act was held not to be retrospective
in its operation, so as to affect the lien of a claim filed
prior to its passage.”

The Act of 1836, also, confined the lien of a claim
to the period of five years from the day of filing it;
but allowed it to be revived by scire facias in the
manner provided by law in the case of judgments,
after which the lien was to continue, in like manner,
for another period of five years, and so, from one such
period to another.

 

1 Knorr v. Elliott, 58. &R.49. ? Mustin v. Vanhook, 3 Wh. 574.
182 CONTINUANCE OF THE LIEN.

It was held, in the case of Sweeney v. M‘Gittigan,
that where more than five years had elapsed, between
the time of filing the claim, and the obtaining of a
verdict on a scire facias therein, the lien was not lost.
This decision was in analogy to those in reference to
judgments."

It has been held, that, where real estate is sold by
the sheriff, the lien of a judgment, which had not ex-
pired at the time of the sale, attached to the proceeds,
and continues, without further revival, until it is paid.

In Burt v. Kurtz, a claim was filed, after a sheriff’s
sale. The court say, in respect to it, “A claim to
perpetuate the lien of a mechanic or material man, if
within time, in other respects, may, undoubtedly, be
well filed, after a judicial sale of the premises. Where
the purchase money is substituted for the land there
is no reason why the lien should not attach itself to
it, as it would to the land in the hands of the pur-
chaser were it liable to the charge.” *

And, in a case which we find mentioned, as decided
in the Common Pleas of Franklin county, in 1819, it
appears +o..bave.been held, usder_the earlier Acts,
that a lien which had not expired, at the time of the
Sheriff’s sale, might expire, for want of a claim, after
the sale, as against the proceeds.’

These decisions seem to make a difference between
the lien of a judgment and a mechanic, in this respect.
But in a much later opinion the court seems to take

 

18 H. 320. 75 R. 248.
§ Sharpknack v. Wilson, Wh. Dig. 5 Ed. pl. 127.
CONTINUANCE OF THE LIEN. 183

a different view. In that case, it says: “The same
principles apply where the property is sold by the
Sheriff before the expiration of the time allowed for
the lien to be filed. The claim may, then, be made
upon the fund produced by the sale in like manner
as though the lien had been entered of record.”?

This doctrine seems to harmonize better with that
of the cases to which we shall hereafter refer, which
seem to make all proceedings after a sale of the pre-
mises a nullity, and refuse to allow a claimant to pro-
ceed even for costs.

By the 24th section of the Act of 1836, it is pro-
vided that the claim may be “revived by scire facias,
in the manner provided by law in the case of judg-
ments, in which case, such lien shall continue, in like
manner, for another period of five years, and so, from
one period to another, unless such lien be satisfied, or
the same be extinguished by a sheriff’s sale, or other-
wise, according to law.”

 

1 Yearsley v. Flanigan, 10 H. 491.

  

aes

 

ESLERV.PETERSON. OL.

Alien filed upon, December 2J, for a clainy
dated June 2d,is within the six months re-
quired by the mechanics’ lien law, the first.
day being excluded and the last day included.
in the six months.

Rule- to strike off mechanies’ lien clainy-

Opinion of the court by Pzarrcx, J. De-
livered October J+, 1871.

It ought to be considered as settled law
Jin Pennsylvania that if an act is tobe
done, or a date computed after another
given date, that the first day is to be ex-
cluded and the last included. Cromeitier:
y. Brink, 5 Casey, 522; Duffy v. Ogden, 14
P. F. Smith, 240.

The mechantcs’ lien Jaw enacts that:
“every such debt shall be a lien as:afore-
said until the expiration ef six months
after the work shall have been finished, or-
materials furnished.” The fase item off
} charge in this claim was June 2, 1870, anm

 
184 POSITION AND PRIORITY OF THE LIEN.

CHAPTER IV.

OF THE POSITION AND PRIORITY OF THE LIEN.

Tue mechanic’s lien is, of course, prior to all
liens originating after the commencement of the build-
ing. But liens which have attached before the com-
mencement of the building take precedence of them.*

In a case of Lyons v. M‘Gaffy a mechanic’s claim
was held to have precedence over a judgment for pur-
chase money, which was not entered up till ten days
after the deed was delivered. In this case, the work
was done while the owner had a merely equitable title,
and the lien attached to the equity. When the le-
gal estate was acquired, the lien bound it, also.
What would have been the case, if the purchase-mo-
ney had been secured by a mortgage, or by a judgment
entered up at once, is not stated. The decision ap-
pears to have been based upon the fact, that when the
equity had merged in the legal estate, the mechanic’s
lien was the first to take effect.”

No part of the record of a claim, though it be pur-
sued to judgment, specifies the time of the commence-

 

1 Leib v. Bean, 1 Ash. 207. Lysle v. Ducomb, 5 Bin. 585. Mit-
chell v. Evans, 2 Br. 829. Vanderveer’s Case, 2 Br. 304.
+4 B. 126.
POSITION AND PRIORITY OF THE LIEN. 185

ment of the building. This is, always, a subject of
proof, when the distribution of proceeds is made.
And it renders the intervention of an auditor neces-
sary, in most cases.

It follows, of course, from the fact that all liens
upon a building have relation back to the same time,
that, if the fund is insufficient to pay them, in full,
they are paid pro rata. No one claim has preference
over another. One who aids in the finishing work is

secured equally, and, in the same manner, with one
who builds the foundation.

It will be remembered, that, by the 15th section
of the Act of 1836, requiring, in all cases where a
claim for materials is filed against two or more build-
ings, owned by the same person, a designation of the
amount due from each building, it is provided, that,
if he fail to do so, “such claim shall be postponed to
other lien creditors.”

In the case of Thomas v. James, it was held, that
this postponement was not only to other mechanic’s
liens, but to all subsequent liens, whatever.’

There is, perhaps, a question, whether a judgment
upon a scire facias upon a claim deficient in this re-
spect, does not cure the defect. This point has been
suggested, in one of the cases, but the court declined
to decide it, merely saying, “Whether this provision
will reach behind a judgment recovered, to postpone
the lien on which it is founded, it is not now neces-

sary to decide.’’?

 

17 W. & 8. 382. 2 Lauman’s Ap. 8 B. 477.
186 POSITION AND PRIORITY OF THE LIEN.

It was held, in Lauck’s Appeal, that the provisions
of the Act which exempts property to the value of
three hundred dollars, from execution, are not intend-
ed to affect the liens of mechanics and material men.
Lewis, Ch. J., in delivering the opinion of the court,
says: “The three hundred dollars’ worth of property
exempt, under the law of 9th of April, 1849, is ex-
pressed to be, ‘in lieu of the property then exempt, by
law, from levy and sale, on execution, on any judg-
ment obtained upon a contract and distress for rent.’
This language, evidently, applies only to judgments
or distresses for rent, on which property was exempt
from levy, as the law stood before the Act of 1849;
but no exemption existed, at that time, against a me-
chanic’s lien, as it is confined in its execution to the
property for the erection of which the materials were
furnished or the work was done. The Act of 1849
applies to judgments obtained on contract. By this
is, undoubtedly, meant judgments on contract of the
person against whom they may be executed ;—that is,
judgments against the persons of the parties, which
may be levied on the goods or lands of the debtor, ge-
nerally; and not judgments de terris, against specific
real estate, which may be executed against such estate,
without any contract, whatever, between the plain-
tiff and the owner. It is our opinion, from the lan-
guage of the Act of 1849, as well as from the favour
which the law extends to mechanic’s liens, that it was
not the intention of that Act to enable debtors to hold
possession of buildings, or to take the proceeds of them,
without paying the mechanics and material men for
POSITION AND PRIORITY OF THE LIEN. 187

the materials furnished and work done in erecting
them.”?

It was decided, in an early case, that the liens of
mechanics, like judgments, were discharged, by a
sheriff’s sale. Nor are they saved from this result by
the Act of 1850. A sheriff’s vendee takes discharged
of them, and they are payable out of the proceeds.”

 

112 H. 428. * Werth v. Werth, 2 R. 151.
188 DISCHARGE OF THE LIEN.

CHAPTER V.

OF THE DISCHARGE OF THE LIEN.

A payment of the debt to the mechanic or material
_man will, of course, satisfy the lien. But a payment
by the owner to the contractor will have no such effect
upon the claims of those employed by the latter.’

A release given by the mechanic or material man
to the owner or contractor, of course, extinguishes
the lien, if it be duly delivered.

But, where a release of the owner and the building
was delivered to the contractor, by a mechanic em-
ployed by the latter, but was never delivered to the
owner, because he had failed to pay the proper con-
sideration for it, it was held not to avail him.”

We have, already, referred to the cases which show,
that the lien will exist, notwithstanding a special agree-
ment with the owner, or the taking of other security
or evidence of the debt, before the lien attaches. The
question now to be considered is the effect of such
acts, subsequently to the commencement of the lien.

Taking another security or evidence of indebtedness
is, in general, no satisfaction of the lien. It is merely
cumulative.

 

1 Wetherill v. Harbert, 2 B. 348. 2 See id.
DISCHARGE OF THE LIEN. 189

Thus accepting a note for the amount of the claim,
is not a satisfaction of it.’

Of course, we must except from this general rule,
the case in which the creditor, expressly, takes it as
such. For instance, it has been held, that where he
gives a receipt, at the foot of his bill, for the note, as
“in full of the above bill,” there is evidence for a jury
of its being taken in satisfaction of the debt, and there-
fore, in discharge of the lien.”

In Crean v. M‘Fee, it was held, that the taking and
entering of a judgment bond, after the filing of a claim,
was not a satisfaction of it. The Court say :—“In
Thompson’s case, 2 Browne’s Rep. 297, the precise
question, now raised, was decided, in favour of the
mechanic’s claim. Judge Hempuitz, then President
_ of this court, in an opinion very carefully prepared,
rested the decision on the doctrine of merger or extin-
guishment of an inferior security, by the acceptance of |
a superior one; and, viewed in this aspect, thought
the judgment could not be considered of a higher rank
than the claim filed. Were we restricted to the appli-
cation of this doctrine, we should, probably, arrive at
a different conclusion. But we think the proper in-
terpretation of the mechanic’s lien Act of 1806, brings
to the claimant’s aid another principle of law, strictly
apposite, on the facts of the case, and equally avail-
able, to sustain the Auditor’s report. .

“We regard the individual furnishing materials, or

 

* Kinsley v. Buchanan, 5 W. 118. Johns v. Bolton, 2 J. 339.
2 Jones v. Shawan, 4 W. & S. 257.
190 DISCHARGE OF THE LIEN.

doing work, in the construction of a building, and, after-
wards, filing his claim, so as to acquire the benefits
of the Act of Assembly, to be entitled to several con- |
current remedies to enforce his debt. The lien under
the Act, is but a collateral security, which may be
made efficacious, by suing out a scire facias, or by re-
sort to a personal action, at the option of the claimant,
by express direction of the supplementary Act of 1508.
The claimant has, also, a concurrent remedy, by a
personal action, when, as here, the owner of the build-
ing was the contractor of the debt; and should the
building be sold within two years from its commence-
ment, the debt would, notwithstanding the prosecu-
tion of the personal action to judgment, retain its pre-
ference, secured by the Act over subsequent liens. The
taking of the bond, &c., and entry of judgment thereon,
was a procedure not differing, in its legal incidents,
from a mere personal action; although in Williams
v. Tearney, 8 8. & R. 56, it was held not sufficient to
fulfil the requisition of the Act, in respect to the in-
stitution of an action, (where no claim is filed,) within
six months from the furnishing of materials, or the
performing of work.’”*

Where, however, time is given to the contractor,
the principal debtor, by the mechanic or material man,
it seems, that the building, which is the surety, is
discharged. We give the opinion of the court in the
late case of Hill v. Witmer, upon this subject, at length,

 

19 M. 214. See, however, Lewis v. Morgan, 11 8. & R. 287.
Williams v. Tearney, 8S. & R. 59.
DISCHARGE OF THE LIEN. 191

because it is the only one of which we have knowledge,
in which the point is discussed.

“This is a scire facias on a méchanic’s claim. The
executor of the owner pleads, that Gilbert Low, the
contractor, made a contract with the decedent to erect
two houses, within nine months from August 3rd,
1853. The plaintiff on the Ist of February, 1854, after
the materials which are the subject of this claim were
furnished, accepted Low’s note, payable in ninety days
from the Ist of February, 1854, for the price of the
materials, and agreed, in consideration of the delivery
of the said note, to extend and give time to said Low,
for the payment of said price, for ninety days.

“The defendant, before the note fell due, paid Low
the full amount of the contract price. There is another
plea, setting forth the additional fact, that defendant
had no notice of the lien when he paid the contractor.

“The owner of a building, or rather the building
itself, when erected by contract, stands, very much,
in the relation of a surety for the contractor. We
are now to decide whether those equitable principles
which have been adopted in regard to principal and
surety, shall be applied to this relation of contractor
and owner. It appears settled, in England, that, even
a covenant not to sue the principal, with an express
reservation of all remedies against the surety, does
not discharge the latter; for the equity of the surety
is not affected. Upon payment of the debt, by the
surety he has a right to immediate recourse against
the principal, by the very terms of the principal's
agreement with the creditor.
192 DISCHARGE OF THE LIEN.

“Whether this is so in this state, has never been
expressly decided.

“As far as appears on the pleadings, there ‘was no
reservation; and if the contractor and owner do, really,
stand in the relation of principal and surety, we are
bound to apply to it the familiar rule, that time given,
by a binding agreement, to the principal, without the
consent of the surety, discharges the latter. The
owner had a right, as soon as the work was done, to
pay the mechanic, and either deduct the amount from
the contract price, or, if he had already paid, proceed,
at once, against the contractor, to secure his reimburse-
ment. The act of the creditor, the mechanic, or ma-

_ terial man, in giving time to the contractor, impaired
this right. He could not proceed, until the time ex-
pired, and this delay might be the cause of final failure
to recover.

“Let us examine, whether there is anything in the
decided cases which ought to prevent us from adopt-
ing a principle which seems required by analogy, and
is, obviously, so just and reasonable.

“Tn Kinsley v. Buchanan (5 W. 118,) in which it
was held, ‘that an acceptance of a note from the con-
tractor is not a relinquishment of the mechanics’ lien,’
the note was payable on demand, and no time was
given. Johns v. Bolton (12 Penna. State Rep., 540,)
is a case which, so far as concerns this point, is not
fully reported. It is stated, that before the lien was
filed, the defendants, (that is, perhaps, the contractors,
gave to the plaintiffs a note, on account of the work
done, which was dishonoured, and taken up by the
DISCHARGE OF THE LIEN. 193

plaintiffs. There is no argument on this point, and
the court take no notice of it. They reverse, for cer-
tain errors, and add, generally, that the other errors
not abandoned are sustained. It is probable that this
is one of those abandoned. It is evident, however,
that there is nothing, in the case, to show time given
by a binding agreement. Where a creditor accepts
the debtor’s note for a precedent debt, payable at a
future day, it is prima facie, only collateral; and if he
does not part with the note, or produces it on the
trial, he may sue an hour afterwards, Weakley v. Bell,
(9 W. 283.) In the case before us, there is an ex-
press averment of such an agreement, to give time in
consideration of giving the note, which the demurrer
admits.—Judgment for defendant.’

Points of some interest are presented, in the cases,
connected with the doctrines of set-off, and the appro-
priation of payments.

It appears, that a debt due to the contractor, by the
claimant, may be set off.?

In Harker v. Conrad, it was held, that, where a
material man had separate liens, for materials fur-
nished to two several houses, and received a payment
from the debtor, without any actual appropriation of
it; and then, allowed one of his liens to expire, he
could not, subsequently, appropriate the payment to
the lien that had expired, to the prejudice of a pur-
chaser of the premises bound by the other lien.

The court say:—“The case, then, was just this;

 

113 Leg. Int. 69, ? Gabell v. Perry, 1 H. 181.
13
194 DISCHARGE OF THE LIEN.

the plaintiffs had separate demands, in respect of dif-
ferent houses, and liens on those houses, respectively,
which were equally permanent, or, what is the same
thing, the means of making them such. A payment
was made, without actual appropriation, by either
party, and the plaintiffs, after having suffered one of
their liens to expire, claim a right, at the trial, to ap-
propriate the payment to the discharge of their demand,
in respect of which their lien had so expired; and
this, against a person who had become a purchaser,
without notice, of the property, on which, according
to this mode of appropriation, there would be a sub-
sisting incumbrance. Although, as between the im-
mediate parties, the creditor has a right to appropriate,
where the debtor has failed to do so; yet this right must
be exercised within, at the furthest, a reasonable time
after the payment, and, by the performance of some
act, which indicates an intention to appropriate. It
is too late to attempt it at the trial; and, were it
otherwise, there would, in the absence of an actual
appropriation by the debtor, be no rule on the sub-
ject, but the will of the creditor, which would, in all
cases, be decisive. But such is not the fact. In de-
fault of actual appropriation, the matter is to be de-
termined by rules and circumstances of equity. The
debtor has a right to make the application, in the first
instance, and failing to exercise it, the same right de-
volves on the creditor: but, where neither has exer-
cised it, the law, nevertheless, presumes, in ordinary
cases, that the debtor intended to pay, in the way
which, at the time, was most to his advantage. Thus,
DISCHARGE OF THE LIEN. 195

if it were peculiarly the interest of the party, to have
the money received in extinguishment of a particular
demand, the law intends, that he paid it in extinguish-
ment of such demand, and, that the omission to de-
clare his intention was accidental. Such intendment
is reasonable and natural, and one which will, in most
cases, accord with what was, actually, the fact: it is,
therefore, equivalent to an exercise of the party’s right,
by acts, or an express declaration of intention. Where,
however, the interest of the debtor could not be pro-
moted by any particular appropriation, there is no
ground for a presumption of any intention, on his part,
and the'law, then, raises a presumption, for the same
reason, that the payment was actually received, in the
way that was most to the advantage of the creditor.
I think these principles, as furnishing general rules,
may fairly be extracted from the cases. Then, ac-
cording to this, if the controversy was between the
original parties, it would admit of a doubt, whether
the payment ought not to be considered as having
been made on the foot of the account, fer materials
furnished to the houses in Fourth street; because, by
having it so applied, the plaintiffs would secure their
whole demand, without the expense and trouble of
filing their lien against those houses: whilst Harker
and Thorn would not have been benefited, by having
it applied to either demand, in particular. But the
introduction of a purchaser, without notice, into the
case, leads to an opposite result. He stands in supe-
rior equity to Harker and Thorn, who were bound in
conscience, to protect the title which they had con-
196 DISCHARGE OF THE -LIEN.

veyed to him, and who, there is, therefore, as much
reason to presume, intended to make this payment,
for his benefit, as there would be to presume, that
they intended to apply it in the way most condu-
cive to their own interest, if a particular application
of it could have produced an equal benefit to them-
selves. The law ought to presume, and does presume,
that every man is governed by the dictates of con-
science, and that he will do what honesty requires of
him, even though it be against his interest. Such a
presumption can prejudice no one, nor does it injure
the plaintiffs here. They were bound, by every con-
sideration of equity, to perpetuate their lien on the
houses in Fourth street, and thus, while they secured
themselves, to cast the burden on those whose duty
it was to bear it. Having failed to do so, the pur-
chaser stands in superior equity, also, to them; and
they must, therefore, bear a loss which arose entirely
from their own neglect, and which it was their duty
to prevent.” *

In a case arising with respect to the same parties, it
was held, that where an owner, after being supplied
with lumber to erect a building, became the holder
of a note of the lumber man, payable in lumber, the
note extinguished the debt, pro tanto, and prevented
the lumber man from filing a claim for more than the
balance due to him from the building; and, that the

-owner and the lumber man could not, afterwards, by
agreement, apply the note to the extinguishment of a

 

1128. & R. 301.
DISCHARGE OF THE LIEN. 197

debt for lumber subsequently supplied to another
building, against which no lien had been filed, to the
prejudice of a purchaser of the first building.’

A mechanic’s lien may be discharged by circum-
stances amounting to an estoppel.

Thus, a judgment against the claimant, in a per-*
sonal action, for the same debt for which a claim is
filed, will bar a scire facias on the claim. It is a re-
cord estoppel.”

So it may be lost by an estoppel in pays. Where
a person having such a lien stands by at a public sale,
and encourages a person to buy at a full value, with-
out disclosing his right, his claim may be barred or, at
least, postponed.

A mere omission, however, to proclaim his lien will
not have that effect.°

Of course, a sheriff’s sale discharges the lien, as
against the realty. The claimant is referred to the
proceeds, but the purchaser takes the premises free of
the incumbrance.

In a late case, not yet reported, it has been held,
that a destruction of the building for which the work
has been done, or the materials furnished, by fire, or
otherwise, discharges the lien.

Lewis, Ch. J., in delivering the opinion of the court,
says: “The equity of a mechanic’s lien upon a build-
ing is founded upon the labour and materials furnished
by him, in constructing it. That the land on which

 

1 Hopkins v. Conrad, 2 R. 316. * Whelan v. Hill, 2 Wh. 118.
5 Kline v. Lewis, 1 Ash. 31.
198 DISCHARGE OF THE LIEN.

the building stands goes with the building, in case of
a sale, is the result of necessity, because the building
cannot be enjoyed without it. The legislative pro-
visions are founded on that necessity, and do not
change the character of the lien, in this respect. It
is not founded on any contract with the owner of the
land. It is not, necessarily, one of his debts. It may
be created by a contractor, who has already received
from the owner full compensation for furnishing the
materials and erecting the building. Attaching itself
to the building, and depending upon it for existence,
the lien must, necessarily, share the fate of the build-
ing. No amount of labour or materials furnished,
for the erection of a building, would create a lien, if no
building should be erected. So, if the building, after
erection, should be destroyed by accident, before the
ground on which it stood, passed to a purchaser, the lien
would be gone. The reason for binding the land is
gone, with the building. Any other construction
would defeat one of the objects of the law, which was,
to promote the improvement of the country, by en-
couraging mechanics and material men to furnish la-
bour and materials in erecting buildings. But if the
lien continues on the land after the building is de-
stroyed, how are those who erect the new buildings
on the premises to be protected? Their equity
against it is undoubtedly superior to the claims
upon the building that was destroyed. And, yet,
the latter, if they exist at all, must be preferred to
the former. Under such a rule all further im-
provement on the premises might be prevented. In
DISCHARGE OF THE LIEN. 199

this case, the court held, that a mechanic’s lien
against a former building was good against one
erected afterwards, although, neither the labour nor
materials on which the claim is founded were per-
formed or furnished for the building thus charged.
In this we think there was error. It follows from
what has already been said, that the equity of the
claim does not extend to the ground, except when it
becomes necessary to the enjoyment of the building.
The words of the statute are in accordance with this
principle. They give the lien upon the ‘building’
alone in the first place, and, then, by a subsequent
erection, this lien is declared to ‘extend to the ground
covered by such building, and to so much other ground
immediately adjacent thereto, and belonging in like
manner to the owner of such building, as may be ne-
cessary for the ordinary and useful purposes of
such building. The words ‘such building’ refer, ex-
clusively, to the building for which the materials were
furnished, and work done, and to no other. When
the ground ceases to be ‘covered’ by ‘such build-
ing, before the lien is filed, the lien ceases as a
matter of course.” *

In another late case, however, it seems to have held
that it was no defence against the lien to show, that
the building was taken down on account of its impro-
per construction.”

 

1Third Ass. Ref. Presb. Ch. v. Stetler, op. delivered March 22,
1856. 13 Leg. Int. 116.
2 Odd Fellows’ Hall v. Masser, 12 H. 510.
PART V.

OF THE JURISDICTION OF COURTS AND PRACTICE UNDER
THE LAW.

CHAPTER I.

GENERAL REMARKS UPON THE PROCEEDING.

It has been settled, by many decisions, that the
claim of the mechanic and material man, and the pro-
ceedings thereupon are, simply, in rem. They are so
entirely so, that, if the premises affected by the claim
be discharged, in any manner, the proceedings termi-
nate. They cannot continue, even for costs. If they
do proceed, with or without a discharge of the land,
the judgment is not one of the ordinary character, but
a special one against the premises, authorizing no pro-
cess in personam, or against other property.

We shall refer, hereafter, to the personal remedy of
the creditor against the one with whom the contract
to do the work or furnish materials was made. If
this person be a contractor, and not the owner, the

 

1 Holden v. Winslow, 7 H. 457. Matlack v. Deal, 1 M. 254.
Anschutz v. M‘Clelland, 5 W. 487.
GENERAL REMARKS UPON THE PROCEEDING. 201

hood

latter is under no personal liability whatever. He
simply subjects his house to the burden.

We have, heretofore, taken occasion to notice the
looseness allowed in the proceedings upon these
claims, the great indulgence shown to the mechanic,
and the inconsistencies of the decisions. These will
appear, manifestly, as we proceed,’

 

1 See ante, p. 87, et seq.
202 JURISDICTION OF COURTS.

CHAPTER II.

OF THE JURISDICTION OF COURTS.

Unver the 11th section of the Act of 1836, the
claim must be filed in the court of “the county in
which the building may be situate.” No provision
appears to be made for a case in which the premises
lie partly in one county and partly in another.

The jurisdiction of courts, within the proper county,
is generally determined by the amount in controversy,
as in other cases.

In most of the counties of the state, the Court of
Common Pleas is the proper tribunal, to take cogni-
zance of these proceedings.

Prior to the Act which we are about to mention,
the District Court for the city and county of Phila-
delphia had the jurisdiction in all cases where the
lien filed was for more than one hundred dollars, and
the Court of Common Pleas, where the claim was for
less than that amount. But, by an Act of May Sth,
1854, the Court of Common Pleas has, now, concurrent
jurisdiction with the District Court, in all cases in
which the same does not exceed five hundred dol-
lars.

Where the claim gives jurisdiction from its amount,
the fact that it is apportioned for sums less than that
JURISDICTION OF COURTS. 203

necessary to give such jurisdiction, so that the writs
of scire facias against each house will, also, be for less,
does not oust the jurisdiction.

Indeed, in one case, where the entire sum was over
one hundred dollars, the court having jurisdiction over
that sum was held to have exclusive cognizance."

To prevent any doubt upon this subject, an Act of
April 10th, 1848, gave the District Courts of Phila-
delphia, Lancaster and Allegheny counties jurisdic-
tion, notwithstanding the apportioned claims should
be less than the sum of which they have jurisdiction,
and confirmed prior proceedings, in such cases.

Tt was held, in one of the earlier cases, that a claim
under these Acts could not be filed before an alder-

man.”

 

* Woodruff v. Chambers, 1 H. 132. Curry v. Spink, 11 H. 58.
2 Wh. Dig. 5 Ed. pl. 155.
204 PARTIES TO THE PROCEEDING.

CHAPTER III.

OF THE PARTIES TO THE PROCEEDING.

THE question, who shall be parties to the proceed-
ings under these Acts, must be considered, with refe-
rence to the claimant as well as the defendants, and
in doing this we shall treat first of the claim and then
the scire facias.

The Acts of 1803 and 1806 speak of a claim, but
no provision is made as to its form in this or any other
respect.

It is difficult, however, to understand how a claim
can be filed, without specifying the name of the claim-
ant.

The Act of 1836, expressly, declares, that ‘the name
of the party claimant must be set forth.”

He is undoubtedly, therefore, a party of record;
and any omission of his name would, probably, be a
fatal defect, and render the claim inoperative.

We shall defer our remarks upon the mode of
stating the name of the claimant, until-we come to
speak of the form of the claim.

We may, however, refer, in this connexion, to a
case in which it was held, that, where an architect
contracted with the owner to build a house, and after-
wards, took a partner in with him, in the work, the
PARTIES TO THE PROCEEDING. 205

two could not join in filing a claim, because the owner
had made no joint contract with them; but, it is,
doubtfully, intimated, that the incoming partner might
have filed a claim for himself, against the owner and
contractor together, if the facts permitted it.

Of course, except in case of death, the party claim-
ant would, also, be the one in whose name the scire
facias issues. Where a claim is assigned or marked
to the use of another, the proceeding must continue in
the name of the assignor, as the legal plaintiff.

We next come to those against whom the claim
is filed, or the parties defendant, in the proceeding.
The cases bearing upon their relation to the record
are much more numerous, than those in reference to
the claimant; though the earlier Acts are equally
silent as to both.

In Christine v. Manderson, it is said: “The Act of
17th March, 1806, does not require, that the claim
shall contain the name of the owner or contractor.
It makes the building subject to the debt contracted
for materials furnished or work done in erecting it.
The claim, therefore, in the present instance, would
have been good, though it had not stated, as it does,
the name of the owner or reputed owner.” ?

In another case, a claim “against the owners or re-
puted owners,” “and against all other person or per-
sons, Owners or possessors of said building,” was held
sufficient.’

In Hampton v. Broom, a claim was filed, prior to

 

' Barker v. Maxwell, 8 W. 478. 22 B. 364.
* Harker v. Conrad, 12 8. & R. 301.'
206 PARTIES TO THE PROCEEDING.

the Act of 1836, which described the house; but no
mention is made, in the report of the case, of any
statement in the claim of the name of owner or con-
tractor. A scire facias issued upon it against O., as
contractor, and L. as owner, on the trial of which,
the person named as owner proved, that he was not
such, and judgment was given against the plaintiff.
A second scire facias, on the same claim, was, subse-
quently, issued, against O. as contractor, and B. as
owner, to which the defendants pleaded the prior judg-
ment as a “former recovery.” In answer to the ar-
gument against such a plea, that the former scire fa-
cias was not between the same parties, it was urged,
that the claim upon which both writs were founded
was the same; that the Act of 1806 did not require
a specification, in the claim, of the name of the owner
or contractor, but was satisfied by a description of the
building; that, in Savoy v. Jones, 2 R. 343, it had
been distinctly decided, that the credit was given, not
to the owner, but to the building, “the object of the
legislature being to enable the mechanic or material
man to follow his labour or materials into the build-
ing, which is pledged for the price, without regard to
the estate of the owner;” and, that this doctrine, taken
in its widest extent, certainly implied, that no obliga-
tion existed, on the part of the mechanic or material
man, to look to the title or authority of the person who
might choose to erect a building on a lot of ground.
The court appeared to concede the force of this ar-
gument in favour of the plea, as far as it went, but
decided, that the question turned upon the Act of
PARTIES TO THE PROCEEDING. 207

1808, which required the scire facias upon the claim
to be “against the debtor and owner of the building,
or the executors and administrators;’’ and that it was
competent, upon a trial, for either of the defendants,
to prove, that the one named as such was not the real
owner, and thus defeat the action; and, that, therefore,
the judgment upon the first scive facias, in favour of
the one who was not the owner, was no bar to the
second scire facias, against the true owner."

This case shows, most conclusively, that, under Acts
prior to that of 1836, it was competent for a claimant
to file his claim, without any mention of the owner or
contractor, and, that, if, in his scire facias, he mistook
their names, he might discontinue, or become nonsuit,
and issue new process, on the same claim, against other
persons. |

Notwithstanding this license, however, the practice ~
seems to have been, to mention the name of the con-
tractor, and owner, or reputed owner. And, in one
case, in which a mistake was made in the name of the
owner, the court seem to have considered the error
fatal.?

While the legislation with reference to the form of
the claim, in this respect, was so deficient, the Act of
1808 provides for a scire facias “against the debtor and
owner of the building, or their executors or adminis-
trators.”

The word “debtor,” in this Act, was intended to
refer to the person who is called, in the Act of 1836,

 

1] M. 241. > Hays v. Tryon, 2 M. 208.
208 PARTIES TO THE PROCEEDING.

the contractor. And it was held, at an early period,
that he must be madea party. The court say: “There
is great reason why the contractor should be made a
party to the proceeding on sci. fa., though the judg-
ment and execution on it can only affect the house.
He, alone, knows the persons who supplied the ma-
terials, the price at which they were to be furnished,
and who did the work and the price agreed on. If
he contracted to finish the building, for a certain sum,
he may become liable to the owner, who has been
compelled to lose his house or pay debts on it. Jus-
tice to the owner and to the contractor, then, requires,
that the debtor be a party to the sci. fa., as well as
the owner of the building; and.this Act is express,
that he shall be a party, and prescribes even the mode
of service on him.’’*

The Act of 1836, is still more explicit, in this re-
spect; and the case of Barnes v. Wright, already cited,
under the Act of 1808, seems entirely applicable to
its terms. The contractor must, it would appear, be
a party. And if one not the contractor be made a
party, as such, the error will be fatal.’

Where there is no contractor, however, but the
owner, no other can, of course, be introduced; and it
is not necessary, it would seem, to call the owner
contractor, if he is made a party as owner.

In Knabb’s Ap. the court say :—“ Harper is named
as owner, or reputed owner, and no one is designated

 

1 Barnes v. Wright, 2 Wh. 193. See Rogers v. Klingler, 3 Wh. 335.
° Davis v. Stratton, 9 Leg. Int. 11.
PARTIES TO THE PROCEEDING. 209

as contractor, architect, or builder. This is the third
exception. But the Act requires, in express terms,
a contractor to be named, only, where the contract
was made with a builder, distinct from the owner of
the building; and the decisions have not extended
these terms beyond their obvious meaning: Jones v.
Shawan, 4 W. & 8. 262; Sullivan v. Johns, 5 Wh.
366. To be sure, in the latter case, it is observed,
there is no objection to naming an owner, who built
the house for himself, as owner, or-contractor, or both.
It is so done, in this instance, in the claim filed by
Davis and Whitaker. But there is no imperative
necessity for this. It has even been said, that, as the
name is only a circumstance of description, to specify
the property, entire accuracy as to the ownership may
not be indispensable. Certain it is, the proceeding
being in rem, the object, in stating the names of the
parties connected with the structure, is a designa-
tion of the thing and not of the person. This ob-
ject is, generally, effected by naming the owner, alone.
Still, where there is also a contractor, builder, or
architect, conformity with the statute requires him to
be named. What would be the effect of a neglect
to notice him, in a proper case, we are not called on
to declare, since it no where appears there was, in this
case, a distinct contractor.” *

In Richebaugh v. Dugan, the defendant offered to
show, that there were two contractors; only one being
named. The court disregarded the offer, on the ground,
however, that it was not pleaded in abatement.’

 

12 Wh. 193. ° 7B. 394.
14
210 PARTIES TO THE PROCEEDING.

In regard to the owner, there is more difficulty. In
the case of Hampton v. Broom, just referred to, it ap-
pears, that, under the Act of 1808, if made a party to
the scire facias, he must have been correctly named;
and, that any omission or defect, in this particular,
was fatal.

The practice seems to have arisen, under this enact-
ment, of filing a claim and issuing a scire facias against
some person, as “owner or reputed owner.” In one
of the cases, already referred to, the court say :—“Un-
doubtedly, the plaintiff ought to have made the owner
a party, and have service made upon him, if he knows
him. That is, frequently, however, not in his power,
owing to unknown transfers, and apparent ownerships;
and, hence, the practice of proceeding against a re-
‘puted owner, since incorporated into the Act of 1836.”?

In Anshutz v. M‘Clelland, a building was erected
by a lessee, who made the contract, with the know-
ledge of the owner. The court held, that under the
circumstances, claims filed against the lessee and con-
tractor alone, were sufficient, and, that, under the pro-
ceedings upon such a claim, the whole fee of the land
might be sold. The court, however, in its decision
presents views which are applicable here. It says:—
“Tt may be, that where the owner of the house is not
made a party to the scire facias, he may not, there-
after, be precluded from setting up any defence, in an
action of ejectment brought against him by the pur-
chaser at sheriff’s sale, which he might have made in

 

1 Christine v. Manderson, 2 B. 365.
PARTIES TO THE PROCEEDING. 211

the scire facias, had he been warned by it. The Act
of 1808, which authorizes the suing of the writ of scire
facias upon a mechanic’s lien ‘against the debtor and
owner of the building,’ to notify them to show cause,
if any they have, why the plaintiff should not have
execution for the amount of his debt, against the build-
ing, can only be considered directory, so far as it pro-
vides for the scire facias being sued out against the
owner : it would be attended with great inconvenience,
as well as tend to defeat the purpose of the Act, if it
were to be held otherwise; for the owner may, or may
not be known to the creditor; and it was, certainly,
not the intention of the legislature, that his security
for the payment of his debt, or that his remedy for
recovering it should be lessened or diminished, in
the least, because he might not know the owner; and
if the owner, when not made a party to the writ, be
permitted to defend in the ejectment, as he might have
done in the scire facias, had he been warned, in pur-
suance of it, no injustice or injury can accrue to him,
from his name being left out of it.”?

This was the state of the decisions, under the
earlier Acts, in regard to the owner. The twelfth sec-
tion of that of 1836 provides, that every claim must
set forth: “The names of the party claimant and of
the owner or reputed owner of the building, and, also,
of the contractor, architect or builder, where the con-
tract of the claimant was made with such contractor,”
&e.

The difference between this enactment, and that in

 

15 W. 490.
212 PARTIES TO THE PROCEEDING.

the Act of 1808, in reference to the scire facias, ap-
pears to be, that the latter, merely provides, for a
scive facias “against the debtor and owner of the
building,” without any words requiring them to be
made parties; while the Act of 1836, declares, that
the claim “must set forth,” as we have above recited.
The decision, therefore, in Anshutz v. M‘Clelland,
that the words of the Act of 1808, on this subject,
were merely directory, cannot be considered as appli-
cable to the present statute.

In that case, the argument is pressed, that the
claimant may not know the owner. The Act of 1836
expressly provides for such a case, by allowing a claim
to be filed against a “reputed owner.”*

But it appears, from the cases under this Act, that,

, where the claim purports to declare the name of the
: owner, and mistakes it, altogether, the error is fatal.

In Noll v. Swineford a claim defective, in this re-
spect, was held tobe invalid. The court say :—“ There
is a wide difference between misnaming a defendant,
natural or artificial, which was the fact in all the cases
cited on this point, by the plaintiff in error, and omit-
ting, altogether, to bring into Court the only proper
party, by process duly served. The first error can
only be objected to by plea in abatement; but the se-
cond would seem to be fatal, in every step of the cause;
for the simple reason, that the plaintiff, in personal
actions, must, of necessity, fail, in his proof, to charge
the party improperly sued; and where the proceeding

 

/ +See Jones v. Shawan, 4 W. & 8. 262.
PARTIES TO THE PROCEEDING. 213

is in rem, because he has given no notice to those whose
privilege it is to take defence.” *

In Bruner v. Sheik, an Insurance company rebuilt
a house partially destroyed by fire, in fulfilment of
the covenant in the policy. A material man filed a
claim in which he named the company as owner. The
court held, that, after the Act of 1840, such a claim —
could not bind the fee, but only the interest of the
company, which was nothing, and add: “So well were
the parties aware of this, that, only the company was
required to appear and plead; and by not ruling the
other defendants to appear and plead, also, the plain-
tiff evinced a consciousness, that they were not an-
swerable. For want of it, a judgment in his favour
would, at all events, have been erroneous.” ?

In a case in the District Court for the city and
county of Philadelphia, the defendant, who was sued
as owner and contractor, alleged, that he never was
either contractor or owner. The court say: “It may
be, therefore, that he cannot be damaged by this pro-
ceeding, which is still purely a process against the thing.
Still, however, that a judgment against him as contrac-
tor in this proceeding, in which he has been summoned,
would be evidence against him, in a personal action,
-has never been decided ; but we think, that the plain-
tiff, having chosen to make him a defendant, he has
a right to take this defence, and that, if substantiated,
it must be fatal to the plaintiff’s lien and proceeding.” *

 

16 B. 187. 29 W. &S. 120.
8 Davis v. Stratton, 9 Leg. Int. 11.
214 PARTIES TO THE PROCEEDING.

In the case of an apportioned claim, there appears
to be a greater necessity, than in others, to be accu-
rate in this respect. In such case, the owners of all
the houses must be the same, or the lien is not within
the provision of the Act."

A question of some moment arises, under this head.
Must the person named as owner, in the claim, be such,
at the commencement of the building, at the time of
doing the work or furnishing the materials, or at the
time when the claim is filed? What notice, if any,
must be taken, in the proceedings, of such changes of
title? ,

In a case arising under the Act of 1836, a claim was
filed against a person, as contractor, who, at the time
the work was done, was owner; and against one as
owner, who became such after that time. The pro-
ceedings were sustained. The court say: “Naming
a person as contractor, or owner, or both, when he was
such at the time of the contract, would seem to be
liable to no objection, arising either from the words or
spirit of the act; nor is any error perceived in filing
the claim against a person who has become the pur-
chaser after the building is finished, but before the
claim is filed, and who remains the owner, or who is
the reputed owner, at the time itis filed. The owner
complains with a bad grace of a proceeding, which
gives him notice of the lien on his property, and, at
the same time, an opportunity to make a defence, and
which subjects him to no personal liability whatever.”

 

1 Gorgas v. Douglas, 6 8. & R. 520.
? Sullivan v. Johns, 5 Wh. 369.
PARTIES TO THE PROCEEDING. 215

In Jones v. Shawan, it was made a question, whe-
ther a person who purchased the premises, after ma-
terials were furnished, but before a claim was filed,
must be made a party to the claim.

The court, Gibson, Ch. J., says,—“The direction,
that a claimant is not bound to file against one who
was not the owner when the building was commenced,
is not erroneous. The Act of 1803 provided for debts
contracted by the owner, and, consequently, by him
who was owner, when the work or material was
ordered. That act was superseded, not to change this
provision, but to provide for cases in which the debt
has been incurred, not by the owner, but by a builder
or contractor. Still, where the owner is, himself, the
builder, the claim must be filed against him, as the
person known to the creditor, and not his unknown
successor in the title. Though a subsequent terre te-
nant has intervened, the claim is, necessarily, to be
filed against his predecessor; and why should there
be another rule for a debt incurred by a contractor?
As there is no reason for a difference, I take it, the
name of the original owner may safely be used. But
as the claim is against the building, instead of the
person, and, as the name is only a circumstance, of
description, to specify the property and give notice to
purchasers, entire accuracy in regard to the ownership
may not be indispensable; the more so, as the statute
expressly requires no more than the name of the re-
puted owner; and it might be sufficient to file it
against the past, or the present one. It is certain,
however, that the name of the owner when the build-
216 PARTIES TO THE PROCEEDING.

ing was commenced, satisfies the requirements of the
law. A creditor may have occasion to file one claim
against several houses, apportioning to each, its part
of the general burden; and how would he be able to
dispose of the names of intervening purchasers of se-
parate interests? He ought not to be charged, in such
a case, with the difficulty of discriminating; nor could
he, perhaps, discriminate; for where the claim is a
joint one, the ownership ought to be joint. But, having
filed his claim against the original owner, the scire
facias must conform to it, nor is there a provision for
bringing in the purchaser as terre tenant. In Anshutz
v. M‘Clelland, (5 Watts, 487,) a scire facias was held
to lie against a lessee for years, only, when the claim
has been filed against him as the person who employed
the claimant. This, too, shows, that the tenant of the
freehold, at the filing of the claim, is not, necessarily,
the person to be named.”*

It would appear, from these cases, that, where the
owner, at the time the contract is made, or the work
done or materials furnished, is, also, the contractor or
builder, he must be made a party; but that if he be
not when the claim is filed, either he or the owner
at that time, may be the defendant.

It will, also, be remarked, however, thatit is strongly
intimated, that if the owner, at the time of the issuing
of the scire facias, is not warned, he may not be pre-
cluded, “from setting up any defence in an action of
ejectment brought against him by the purchaser at

 

14, W.& 8, 262.
PARTIES TO THE PROCEEDING. 217

sheriff’s sale, which he might have made, in the scire
Jacias.” +

Perhaps the safest way is, to file the claim against
the person or persons who was or were owner and,
builder, or contractor, at the time the(contract was .
made, or the work done or materials furnished) and
give notice to the person who is the owner, when the
writ issues.

Whether a pérson, however, is made a party or not,
he can, in respect of certain interests, make himself a
party, by coming in to defend.

In the case of M‘Adam v. Baily, a person who held
_ mortgage against the property, executed subsequently
to the commencement of the building, asked to come
in and take defence, and he was allowed to do so. The
court say:—The sci. fa. is expressly directed to be
served on the premises; and, as a terre tenant would
be concluded by a judgment in the proceedings, he
may, of course, come in and claim to take defence.
But, is the mortgagee a terre tenant? He, evidently,
to the extent of his security, is liable to be cut out by
mechanic’s liens; he has an interest, and why should
he not be heard? It has been said, that so has any
judgment creditor an interest to be affected. The
difference between a judgment creditor and a mort-
gagee is very plain. The latter has a title, jus in re
as well as ad rem. For all purposes essential to the
maintenance of his security, he is the legal owner.

 

1 Anshutz v. M‘Clelland, 5 W. 490. Christine v. Manderson, 2
B. 363.
218 PARTIES TO THE PROCEEDING.

He is a purchaser, within the statute 27 Eliz., may
recover the possession by ejectment, and have a writ
of estrepement to stay waste. Itisvery plain, that, when
an estate is incumbered much beyond its value, it may
not be sufficiently important to the insolvent owner
to induce him to spend time and money in contro-
verting particular claims. Very gross injustice might
result, if the mortgagee, who has as much advanced his
money on the faith of this specific property, as the
man who may have taken an absolute title, could not
be allowed to take defence in this case.” *

It will be found, that many of the most important
questions under the mechanic’s lien law, have been ~
presented by the objections of other lien creditors,
before auditors appointed to distribute the proceeds of
sheriff’s sales of lands affected by such liens. These
cases we shall refer to more particularly hereafter. *

 

19 Leg. Int. 30.
? Knabb’s Ap. 10 B. 191. Lauman’s Ap. 8 B. 473. Thomas v.
James, 7 W. & §. 381.
THE CLAIM. 219

CHAPTER IIIT.
OF THE CLAIM.

WE shall, for greater clearness, present this subject
of the claim, first with reference to its form, second,
the filing of it.

We have already remarked upon the peculiar indul-
gence which our courts have extended to the practice
under these Acts. In no part of the proceeding has
this indulgence been shown, more decidedly, than
with reference to the claim and its form.

The Act of 1803 provided, that the debt for work
and materials should not remain a lien longer than
two years, “unless an action for the recovery thereof
be instituted, or the claim filed, within six months
after performing the work, or furnishing the materi-
als.’ Similar words are found in the Act of 1806.

It will be seen, that, both the action and the claim
are spoken of as modes of continuing the lien.

It is manifest, from the language of the earlier Act,
at least, that it contemplated the case of a person
building on his own ground. It provides, only, for a
debt contracted by the owner, and had regard to a re-
medy in personam, as well as in rem, which would con-
tinue the lien and recover the debt. But it gives no
indication of the character of this “action.” Whe-
ther, prior to the scire facias given by the Act of 1808,
220 THE CLAIM.

the action was to have been on the claim; or, what
relation the claim had to the action, does not appear.

In Steinmetz v. Boudinot, an action of assumpsit,
was brought for bricks sold and delivered, against the
owner. The court say upon this point: “There is a
powerful objection, too, to the form of this action. If
judgment be entered against the defendant, he is lia-
ble, personally, for the amount of the judgment. But
that would be most unjust, even supposing a lien to
exist, if his liability is only in consequence of the lien,
and not because he contracted the debt, himself. If
an action on the case can be supported, I should think
it ought to be special, and to mention the manner in
which the defendant is liable, in order that a special
judgment might be entered, not affecting the person
of the defendant, but the bwilding only.” *

In a still later case, it was held, that taking a bond
and warrant of attorney from the owner, and causing
judgment to be entered on it, were not the institu-
tion of an action, within the meaning of the Act.’

In Rogers v. Klingler, a material man brought an
action of assumpsit against the contractor, filed a
copy of the book entries upon which the action was
brought, took a judgment for want of an affidavit of
defence, and sold the house. In an ejectment for
the premises, the question arose, whether apy title
passed by the sale, under such a proceeding. The
Court, without deciding, whether that was the species
of action indicated by the Acts in question, held,

 

138. GR. 542. 2 See Bickel v. James, 7 W. 9.
THE CLAIM. 221

that by the Act of 1808, “it was only one having a
claim filed,” who could recover by personal action,
or by scire facias, and that, as no claim was filed by
the plaintiff, his suit was not within the Act. But it
further says: “I will not say, that if the plaintiff had
brought a special action on the case, against the con-
tractor, setting forth the liability of the building, and
obtained a special judgment thereon, and sale of the
building, in conformity with the suggestion of Chief
Justice TinGHMAN, above referred to, a sale within
two years, might not have made the lien available.
But that.was not done here: the suit was personal,
the recovery personal, and the execution and sale were
only of the right of the defendant, the contractor.
Even in the case I have supposed, however, the court
would, I should think, require the owner, if within
reach, to be made a party to the suit, or at least to
have notice, and the opportunity of ‘contesting the
claim.’’*

But, without reference to this difficulty, in regard to
the action, the Acts speak distinctly of a claim; and
it was the habit to file such a paper long prior to the
Act of 1836.

It is a mere ex parte proceeding. The paper is
drawn by the party or his counsel, and filed, without
any motion or application to the court. When filed,
it is not a record, but is in much the same position
as the registry of a mortgage.’ It is, at once, entered
upon the index of claims.

 

13 Wh. 3836.
222 THE CLAIM.

No form was provided in the earlier Acts. The
Act of 1836 gives some aid, in this respect. But,
even since its passage, it has been said in one of the
decisions :—“ No particular form is prescribed for these
instruments, nor has a general practice, under the
statute, assigned to them a technical garb. The
shapes they are made to assume, in different counties,
and even in the same county, are almost as various
as the intelligence and business tact of those who pre-
pare them for the office files.” ?

_ It is said, in the same case, that the great object of
the several provisions of the Act is notice,—the safety
of owners, purchasers and other lien creditors.

By the Act of 1836, sec. 12, every claim must set
forth:

“First, The names of the party claimant, and of the
owner or reputed owner of the building, and also of
the contractor, architect or builder, where the contract
of the claimant was made with such contractor, archi-
tect or builder.

“Second, The amount or sum claimed to be due, and
the nature or kind of the work done, or the kind and
amount of materials furnished, and the time when the
materials were furnished or the work was done, as the
case may be.

“Third, The locality of the building and the size and
number of the stories of the same, or such other mat-:
ters of description as shall be sufficient to identify the
same.”

 

1 Davis v. Church, 1 W. & 8. 242. =? Knabb’s Ap. 10 B. 191.
THE CLAIM. : 993

In their report to which we have already referred,
the Commissioners say of this section: “In the 13th
(12) section, it is proposed to declare certain points to
be essential to the validity of the claim. The object
of filing a claim is, to give notice to third persons of
the names of the parties, the amount alleged to be
due, and the property upon which the lien is claimed.
Unless these are distinctly stated, it is obvious, that
the notice is of little value. Many claims, however,
have been filed deficient in these essentials, probably
from want of sufficient precision in the law. It is
believed, that the directions of this section can be fol-
lowed by the lien creditors, without difficulty, and,
that it will tend to facilitate their entering claims, with-
out professional assistance.”

We will take these provisions in their order, and
show how far their terms have been construed by
decision.

The first requisite of the Act is the names of the
parties. How far these are essential, we have already
stated, in treating of the parties to the proceeding.

Whatever indulgence or latitude the cases may
allow, in this particular, the only safe rule is, to as-
certain, with certainty, who claimant, owner and con-
tractor are, and insert their names.

There can, of course, be no difficulty in ascertain-
ing who the claimant is and inserting his name. He
must be the person with whom the contract is made.

It has been held, in relation to this subject, that a
claim may be filed and proceedings had, in the name
224 THE CLAIM.

of a firm, without specifying the names of the indi-
vidual parties.’

And it has, also, been held, that if the individual
names of all the parties are mentioned, the firm name
need not be.”

It is much more regular, however, to insert the
names of the partners, as well as of the firm.

As to the owner, the particularity should be very
great. It is his name that makes the record of the
lien notice to purchasers and others, and upon a
notice to him depends, under the decisions, the con-
clusiveness of the proceeding, and the efficiency of
the final process.

If owners have changed, since the building began,
it is better perhaps to make the owner, at that time,
the formal party. |

It has been made a question, whether, if all the
proper parties are named, a designation of their re-
spective titles of owner and contractor is essential;
and how far a mistake in this respect will be fatal.

It would appear, from a case decided in the District
Court of Lancaster county, that such a designation
must be made. In that case a claim was filed against
G. H. charging him as debtor in respect to the mate-
rials furnished. But there was no averment that he
was owner, or reputed owner of the premises, which
were simply described, as adjoining property of J. Z.
and others. The claim was held bad. G. H. was, in
fact, both owner and contractor, as far as appears from
the report of the case. But the question of the neces-

 

* Black’s Ap. 2 W. & 8. 179. * Knabb’s Ap. 10 B. 189.
THE CLAIM. 225

sity of designating G. H. as owner, was so involved
with another question, of the proper identification of
the house, that the former can fas ie said to be
decided." ne

We find no decision of the Supreme Court, declaring
such a designation essential. Perhaps, the better
opinion is, that, being mere matters of description, a
mistake or omission in this respect is not fatal.

Where the claim was against a building of which
F. was owner, but the bill annexed charged the goods
to the contractor, for F. and W’s. buildings, it was held,
that the inconsistency rendered the claim invalid.’

The omission of the initial of the middle name of
the owner was held, not to be a valid objection to a
claim.’

In regard to the specification required in the first
part of the next clause, of “the amount or sum claimed
to be due,” there appear to have been no decisions.

The next words, however, “the nature or kind of
the work done, or the kind and amount of materials
furnished,” have led to numerous questions.

We may say, here, to throw light on many of the
cases to which we shall refer, that it is not essential,
that the body of a claim should contain such a specifi-
cation. It is sufficient if it be annexed to the claim,
in the form of a bill or statement. The two, together,
form the. claim.*

It is better, that the bill should be expressly referred

 

1 Gilbert Hill’s Est., 3 Pa. L. J. 323.
2 Scott v. Senderling, 7 Leg. Int. 42. | * Knabb’s Ap. 10 B. 187.

= Ii
15
226 THE CLAIM.

to, in the statement; though it is not, absolutely, essen-
tial, that it should be mentioned, if it appear to have
been the intention of the claimant to make it a con-
stituent portion of his claim.

There appears to have been no doubt, at any time,
that work done and materials furnished might be in-
cluded in the same claim. But it was held absolutely
necessary to state, distinctly, the amount of each.

In Noll v. Swineford, the sum mentioned was stated
to be due for work and for materials furnished between
certain days; but there were no items, no statement
of how much was due for each, nor any averment of a
gross contract. The court held the claim to be defec-
tive, and say: “From a perusal of that portion I have
extracted, it is manifest, the Act contemplates work
and labour done, and materials.furnished, as distinct
and separate items, which, to be sure, may enter into
and make part of the same claim, but not necessarily
so, and when so, not properly to be confounded, or
treated as one.”*

This was followed by the Act of March 24th, 1849,
which enacted,’*—“ That it shall be lawful for any me-
chanic, or material man, in the city and county of
Philadelphia, and county of Chester, who performs
work and furnishes materials, to include both in the
same claim filed: and, where the value or amount of
the work or materials can only be ascertained by

 

16 B.187. See, also, Lauman’s Ap. 8 B. 478. Thorn v. Heugh,
9 Leg. Int. 46. But see Bayer v. Reeside, 2 H. 168.

2 This Act applies only to the city and county of Philadelphia,
and the county of Chester.
THE CLAIM. 227

measurement, when done, or shall be done by con-
tract, for a stipulated sum, it shall be lawful to file a
statement of the time when the work was commenced,
and when finished, and of the aggregate price of the
work and materials; and all claims heretofore filed in
conformity herewith, and not decided, judicially, are
hereby confirmed.” We find, in one of the cases in
the District Court for the city and county of Philadel-
phia, a claim filed, apparently under this Act.’

In a case in the court of Common Pleas, for the
county of Philadelphia, it was objected to a claim,
that it did not set forth the kind of lumber furnished,
with sufficient certainty, when it described it as so
many feet of lumber “third common.” The court
say :—“ This, if a question, at all, was rather a ques-
tion for the court and jury upon the trial. We are
bound to presume, that “third common,” is a kind of
lumber; and it would be onerous to require too great
a particularity in the specification of the quality.” ?

The bill annexed should, as far as possible, give the
details of the work and materials. About the latter
there is less difficulty than the former. The number
or quality and kind of bricks or lumber, or of lime,
furnished on each day, &c., should be given, with care
and minuteness. The rules of evidence, which we shall
refer to, hereafter, do not require, that the proof of each
item, as to date and amount, should accord, exactly, with
the statement. We mention this to show, that while,
of course, the statement should be made, with a view
to what is to be proved, the risk of the particularity

 

1 Thorn v. Heugh, 9 Leg. Int. 46.
? Heron v. Robinson, 2 Pars. 248.
228 THE CLAIM.

which is proper is not so great, as if entire agreement
between the allegata and probata was indispensable.

Tn the case of continuing work, the only particular-
ity, in this respect, that seems possible, is, in stating its
nature, with the time taken and number of persons
employed, and its cost or value. Where it is to be
measured, a statement of the quantity ascertained by
measurement, and its measurement value, should be
given.

As to the course to be pursued, in case of a special
contract, we shall speak hereafter.

The Act, further, requires a statement, in the claim,
of “the time when the materials were furnished or
the work was done.”

Under this clause of the Act, many decisions have
been made; but they are so confused and discordant,
that it is extremely difficult to deduce from them any
rule or guiding principle.

We ought to say, however, that the difficulty is not
to ascertain from them what form of the claim in this
respect is correct and regular, but, rather, the extent
to which omissions and irregularities will be indulged.

Of course, the bill or statement annexed to the
claim, and referred to in it, should, wherever it is pos-
sible, state the date of the work, or, if continuous, the
days between which it was done; and, as to materials,
the date of each delivery with the quantity delivered.
As to cases of contract, we shall speak of them, with
reference to this matter of time, hereafter.

No case has gone the length of saving the claim,
when no date, whatever, was found, either in the claim
or the bill annexed to it.
THE CLAIM. 229

‘The body of the claim, usually, contains a recital,
that the work was done or materials furnished, “within
six months last past;” and the question has arisen,
whether that is, by itself, a sufficient statement of time.

In Lehman v. Thomas, the court struck off a claim,
in which no other statement of time appeared. In
its opinion, the court say: “The materials are stated,
in this case, to have been furnished within six months
before the filing of the claim. For purposes of speci-
fication, it might as well have been six years. The
statute requires the date to be inserted, not merely,
that it may appear the claim was filed in time, but, to
individuate the cause or subject of it. The claimant
may have filled many orders of the contractor within
the period, and it was, therefore, necessary to specify
what was meant. A lumber merchant ought to be
able to give day and date for every item; and, even a
mechanic ought to be able to state the commencement
and completion of his job, with convenient certainty.
Where this can be done, it ought to be exacted; for
it is a potent guard against imposition; and, to say
nothing about any other exception, we are of opinion
the time is too loosely stated.” *

In a subsequent case, the same facts were presented.
There was a date at the head of the bill, but no date
of any of the items. The court say, speaking of the
requisitions of the Act, as to amount and date; “All
of these are, or ought to be, within the peculiar know-
ledge of the claimant, from his books or otherwise,

 

15 W. & S. 262.
230 THE CLAIM.

and must be furnished by him, when filing his claim.
When dispute arises, they are essential to the owner
of the building, the purchaser, and lien creditor, to
enable them to trace out the truth of the claim, and
guard against error or imposition.” And again: “In
relation to the third class of requisites, the locality of
the building, there is some latitude given; the Act
allows “the size and number of the stories or such
other matters of description as shall be sufficient to
identify it.’ “But no such latitude is permitted in
the first and second classes. The items are positively
required ; and this imperative requisition of the law
we are not at liberty to dispense with or impair, by
a strained construction. The claim filed in the pre-
sent case is, in this respect, defective. There is no
time stated in the claim or bill appended to it, at
which the work was done or materials furnished, as
the Act of Assembly requires. The date of the first
of April, 1840, is, obviously, the date of the bill, and
nothing else. The claim does not purport to state
that as the time when the work was done or materials
furnished; and, a forced interpretation of this kind,
to sustain a claim, would establish a precedent, that
would defeat the object which the Legislature had in
view, in requiring the time to be stated.”*

In a case prior to either of these last cited, the claim
had omitted the year, though the days and months
were stated. The court held the claim to be defective,
and expressed similar views, as to the necessity of a

 

' Witman v. Walker, 9 W. & S. 186.
THE CLAIM. 231

substantial compliance with the requisitions of the
Act, and the materiality of such an omission.’

In a case of Noll v. Swineford, the claim was de-
fective, on other grounds; but the matter of time was,
also, involved in the decision. In that case, no bill
was attached, but the claim set forth the sum claimed
as due “for carpenter’s work and labour done and per-
formed in and about the erection of said building, as
a carpenter, and for materials, to wit:—lumber fur-
nished by the said Harry Noll, between the 29th day
of June, 1843, and the 23d day of February, 1844,” &c.
The opinion of the court was delivered by Bell, J.,
who says :—“ Another exception is taken to the valid-
ity of the claim filed here; namely, that it does not
show the time when the alleged work was done, which
is essential under the statute: Rehrer v. Zeigler, supra.
Were it necessary, this objection would be well worthy
of consideration; and, for myself, I may say, I do not
perceive how it could well be answered. It is, to be
sure, urged, that the dates stated under the videlicié
refer, as well to the work, as to the lumber furnished.
It seems to me it is difficult so to read it, without doing
violence to the grammatical construction, as well as
to the plain meaning of the sentence. Were this even
conceded to be doubtful, it might be sufficient to say,
the very concession proves the statement lacks, in this
particular, that degree of certainty which ought to be
exacted, and which it is so easy to confer on these
papers.” ?

 

1 Rehrer v. Zeigler, 3 W. & S. 258. ?6 B. 187.
232 THE CLAIM.

This is the last of the decisions of the Supreme
Court, upon this subject, holding the mechanic to the
substantial requirements of the Act. From its date,
indulgence to that class of creditors began to be ex-
tended, and has now gone so far, as, in fact, to nullify
the enactments upon this subject.

We do not include among the cases which we are
about to mention that of Shaw v. Barnes, which was
decided prior to the case of Noll v. Swineford, but is
not even noticed by the judge who decided the latter
case. It was a direct overruling of the prior decisions
to which we have referred. But it can, hardly, be
treated as authority, though it was, several times, af-
terward, cited as such, by the judge, himself, who there
delivered the opinion of the court. He distinctly inti-
mates, however, that upon a motion to strike the claim
from the record, his views, as to its validity, might have
been different, and, that he gets over technical objec-
tions, in order not to disturb the result of a trial on
the merits, which had taken place.*

The same remarks, perhaps, might, properly, be
made, with reference to Bayer v. Reeside, in which
the opinion of the court was delivered by the same
judge who delivered it in Shaw v. Barnes, and who,
again, expressly declared, that his opinion was affect-
ed by the fact, that no motion to strike off the claim
had been made, and, that the case was before him
after a trial on the merits.’

But we come to others that are, perhaps, of more
authority.

 

15 B. 18. 22H. 168.
THE CLAIM. 233

In Knabb’s Appeal the bill annexed to the claim was
as follows: “Nov. 15,1846. To serving 63,200 bricks,
at $54 per thousand, $347,00.” The Judge who de-
livered the opinion of the Court, says: “That fur-
nished by Bean & Ullman has but one date. But,
in the absence of contrary proof, they must be taken
as designating the time when the bricks were fur-
nished. It is totally unlike the appended bill in
Witman v. Walker, 9 W.& 8.183. There, the ac-
count consisted of various items of marble furnished
for the building: such as mantles, steps, ashler, &c.,
and of marble work, which must have been furnished
and performed at different times; and yet, there was
but a single date. ‘It is-obvious,’ said Judge Ser-
geant, ‘the date is the date of the bill, and nothing
else.” But this cannot, certainly, be asserted of the
present account. It consists of but one item: and,
though not very probable, it is possible, the bricks
may all have been furnished on the same day. Of
this, the only evidence we have, is the bill itself, and
it would be hazardous to assume a fact in contradic-
tion of it, for the mere purpose of invalidating the
lien. Besides, it is said to be the habit of the trade,
to ascertain the number of bricks furnished for a
building, after it is completed, and, then, to make the
final charge. If so, I should think the Act satisfied
by the insertion of that date.”*

In a still later case, the same judge who gave the
opinion of the Court in Witman v. Walker, and in

 

110 B. 186.
234 THE CLAIM.

Knabb’s Appeal, pursuing, still further, the more le-
nient views of the latter case, held a claim good, where
the bill annexed was in the following form: “to
16,836 bricks, at $3,94 per 1000, the last of which
were furnished June 3, 1847, $65,99.” Those who
desire to examine the lapses of the court from its ori-
ginal position, will not object to the space taken by the
remarks, in this decision, upon this subject. The court
say: “Certainty to a common intent is all that is called
for, and this is satisfied, if those interested may ascer-
tain the period during which the delivery of the ma-
terials was effected, or the work was done, so as to in-
dividuate the transaction. In the case last cited,
' where, as here, the claim was for bricks furnished in
the construction of a building, but a single date was
given, and this was ruled to be sufficient; more espe-
cially, as among brickmakers, the habit is said to be,
to make the final charge, after all the necessary bricks
are furnished. In the instance before us, it appears
to me, the claim filed is still more precise and satis-
factory, in the particular under consideration. The
date upon which the ‘last delivery of bricks took place,
is given, to wit; June 3d, 1847, and it is averred the
whole number was furnished within six months prior
to November 6th, 1847, the date of the claim filed. It
results, necessarily, that the materials here sued for
must have been furnished between the 6th of May and
the 3d of June, 1847. Now, surely, under the authori-
ties I have referred to, this is sufficiently certain; and,
particularly, when it is recollected, those who provide
bricks for structures in process of erection, do not, ge-
THE CLAIM. 235

nerally, charge each load despatched to the building,
with the date when it was sent. It has been more
than once said, we must not be hypercritical, when
scanning this species of lien, and estimating its suffi-
ciency. Such a practice must, necessarily, defeat a
very large majority of them; a result not to be desired,
where they furnish sufficient data to enable the parties
subject to them, to ascertain all that is essential for
them to know. Both upon authority and principle,
then, we conceive the claim in dispute, here, well
enough ascertains the time of delivery.” *

There is a class of cases the doctrine of which is of
modern growth, but which, perhaps, do ‘not so directly
conflict with the earlier decisions. They are cases in
which the claimant has been allowed to state that the
work had been done, or materials furnished, between
two specified days, sometimes separated from each
other by a long interval.

In cases of a contract, for the doing work or furnish-
ing materials, in gross, these decisions might be sus-
tained. But, where the work was done, or materials
furnished, without contract, it would appear as if the
usual words “within six months last past,’ were as
satisfactory as the two dates which have been held
sufficient.

In Richabaugh v. Dugan, a claim for “painting
done in and about the erection and construction of
the said building, and the necessary materials provided

 

1 Calhoun v. Mahon, 2 H. 58. See, also, Donahoo v. Scott, 2 J.
47,
236 THE CLAIM.

therefor, from the Ist of April, 1842, to the Ist of
October, 1842, and within six months last past,” was
held sufficient. And similar claims have been sus-
tained in other instances.’

If these cases are, still, of authority, it would seem
proper, at least, since the Act of April 16th, 1845,
that, wherever the first of the two dates fixed is more
than six months prior to the time of filing the claim,
the claim should set forth, that the work was done, or
the materials furnished “continuously,” during the
periods mentioned.

The Act of March’ 24th, 1849, should, also, be re-
membered in this connexion, which, after allowing both
work and materials to be included in the same claim,
further enacts, that “where the value or amount of
the work or materials can only be ascertained by
measurement, when done, or shall be done by con-
tract, for a stipulated sum, it shall be lawful to file
a statement of the time when the work was com-
menced, and when finished, and of the aggregate price
of the work and materials.” This Act applies, only,
to the city and county of Philadelphia, and the county
of Chester.

In a case in which a wrong date, which was, in
fact, an impossible date, was, by mistake, inserted in
the bill accompanying the claim, the court held, that it
might be sustained if parol proof were given of the
correct date.”

 

17 B. 394. Bayer v. Reeside, 2 H. 167. Hill v. M‘Dowell, 2
H. 175. Driesbach v. Keller, 2 B. 77.
® Hillary v. Pollock, 1 H. 186.
THE CLAIM. 237

The sufficiency of the claim, however, with respect
to the question, whether the “amount or sum claimed
to be due, and the nature or kind of the work done,
or the kind and amount of materials furnished, and
the names,” &c., are properly set forth, has been com-
plicated with another question, namely, whether there
has been a special contract or not.

In Jones v. Shawan, it was objected, that it was a
claim for both work and materials, and that, though it
appeared by the claim, that the work was not finished
till within six months before the claim was filed, yet
it did not therein appear, that the materials were fur-
nished within that time. The court sustain the claim,
however, and say: “But the plaintiffs by one contract
agreed to furnish materials and do the work; and, if
you believe the witnesses, the very last things done,
were hanging doors, putting on hinges and locks, &c.;
so that the furnishing materials was contemporaneous
with doing the work, and was not ended till the com-
pletion of the work.”’?

In a subsequent case, the claim stated, that the con-
tract for the workmanship of the building was made
between the parties “on or about the 16th of April,
1841, at Tobehanna Township, Monroe county, afore-
said; and said work and labour were done between the
said 16th of April, 1841, and the 29th of August,
1841.” It was held sufficient.’

In a case of the Court of Common Pleas of Lancas-
ter county, it is said; “ An objection has been taken to

 

14 W. & S. 259. ? Driesbach v. Keller, 2 B. 77.
238 THE CLAIM.

the lien claimed by Israel Cooper,” for work done and
lumber furnished, ‘per agreement.’ The first inclina-
tion of the Court was, that the lumber furnished and
the carpenter’s work done, for a house, could not be
intended to have been furnished and performed, in one
day, the day on which the claim is dated. But, on
further reflection, it seems to the court, that where the
articles are furnished and work done for a building, in
pursuance of an agreement to furnish all the lumber
and perform all the carpenter work for a building, the
lien cannot, properly, be filed, until the claimant is in a
situation to maintain an action, or, at least, until he is
in a condition to aver entire performance of his agree-
ment. Thatis, where he has done all the work and fur-
nished all the materials required by the contract. The
limitation of six months would not begin to run until
that time. The claim may be dated and filed on the
day the contract is executed by the claimant. The
claim may, therefore, in this instance, be considered
as stating, that the work was done and materials fur-
nished on the day it bears date, to wit, the 26th Fe-
bruary, 1841.”+

In a still later case, the court say, upon this sub-
ject: “Here the contract was to do all the work, and
finish and complete four frame houses, which were
very minutely described, in the contract. A mechanic
who makes such a contract, and completes it, seldom
keeps an account of every portion of the materials he
uses, or the work he does; nor is there any occasion

 

1 Shaffer v. Hull, 3 Pa. L. J. 321.
THE CLAIM. 239

for it. He is to complete the houses according to his
contract, and he is to be paid a stipulated sum. In
this case, it is of no consequence, either to the owner
or the public, that he should state the number of cubic
yards dug for the cellar, the number of perchesof stone
built, or the quantity of boards used. He states what
is equally useful, under the words of the Act, his con-
tract. We see no valid objection to this lien, looking
to the explanatory Act of the legislature.’

We ought to mention, in this connexion, the case of
Ellice v. Paul, in the District Court for the city and
county of Philadelphia, in which the work and mate-
rials were alleged to have been done and furnished by
contract, and the only mention of time was in the
words, “within six months last past,” there being no
date, except the date at the foot of the claim, under
the name of the attorney. This date was December
2d; the claim was filed December 9th. The court
held the claim defective, because the Act required the
claim to be filed within six months after the work
was done, or materials furnished; while the claim in
question did not show, that they had been done or
furnished, within six months from the time of filing,
but only within that period from the date under the
attorney’s name.”

It has been held, that, where there is a special con-
tract, it need not be referred to, expressly, in the claim.?

 

1 Young v. Lyman,9 B. 450. See, also, Stiles ». Leaming, 7 Leg.
Int. 19. Haines v. Burr, id. 54.
213 Leg. Int. 124, * O'Brien v. Logan, 9 B. 99.
240 | THE CLAIM.

The next point to be considered, is the meaning of
the clause, “The locality of the building, and the size
and number of the stories of the same, or such other
matter of description as shall be sufficient to identify
the same.”

In regard to the description of the building, the
courts have been very indulgent. That the looseness
allowed, in this respect, has been wise, with reference
to purchasers and lien creditors, is, by no means, cer-
tain.

In Witman v. Walker, the court, in speaking of the
last words of the clause just mentioned, consider them
as giving a latitude, in this part of the claim, which
was not conceded to the other statements which were
required.

It has never been held, that a description of the
premises by feet and inches, boundaries and extent,
was necessary. It would, however, be much better,
that this should be found in the claim, when cer-
tainty can be reached. In cases in which a party has
availed himself of the mode pointed out by the Act of
1836, for designating boundaries, there can be no dif-
ficulty or danger. Nor is it probable, that there will
be, in other cases. Ifthe claim includes too little, in-
deed, the hen will be confined to the description. But
if it includes too much it would be sustained, no doubt,
to the extent that is proper.

In the city there will be less danger, than in the
country, in hazarding an opinion, in regard to the ex-

 

1 M‘Donald v. Lindall, 3 R. 493.
THE CLAIM. 241

tent of the ground, which the lien affects. But
care should always be had, that no less is included
than will be necessary. The only aid we can give
will be found in the cases which we have heretofore
referred to, under another head.t If no objection be
made, a judgment may, perhaps, conclude the parties,
in this respect, which will, of course, not be the case,
where there is no description. If objection be made,
it would seem, that a jury is the proper tribunal to de-
cide the question.”

In respect to the “locality of the building,” extreme
indulgence has been extended to this class of creditors.

In Harker v. Conrad, a claim filed against “a three
storied brick house, situate on the south side of Wal-
nut street, between Hleventh and Twelfth streets, in
the city of Philadelphia,” was held to be sufficient,
though Quince street intervened, between Eleventh
and Twelfth streets.’

In another case, a claim filed against premises “on
the west side of 13th street, between Vine and James
streets, was sustained, though there, also, a third street
intervened.* In another, a description of premises,
“as on the north side of Lombard street, west of
Ninth street, adjoining Stephen Smith’s lot, on the
Fast,” was declared to be specific enough.?

In all these cases, however, the court required the
name of the owner to be mentioned in the claim, and

 

1 See ante, p. 185, et seg. * Keppel v. Jackson, 3 W. & S. 320.
“128. &R. 301. 4 Springer v. Keyser, 6 Wh. 187.
5 Shaw v. Barnes, 5 B. 20.

16
242 THE CLAIM.

proof, upon the trial, that he owned no other premises
within the description.

And in a case of a description somewhat similar,
where the name of the owner was not mentioned, and
there was no proof, that he owned no other property
in the neighbourhood, the plaintiff failed to recover.’

These cases arose with reference to buildings with-
in a city. _But we are not without others, which tend
to the same result, with reference to houses in the
country.

In a case in the Court of Common Pleas of Lancas-
ter county, a claim was sustained which described the
premises as “in Dillersville, adjoining lands of Peter
Hentz, and the Pennsylvania Rail Road.’”’? In another
case, in the Supreme Court, the claim was against pre-
mises “in Upper Providence Township, Montgomery
county, Pennsylvania, belonging to Joseph M. Harper,
bounded by land of Jacob Landis and others,” and
it was sustained.°

The same particularity in naming the owner, and
in proving that he owned no other premises which
could be mistaken for those intended, was required
in these latter cases, as in those first referred to.

The reasons given in these opinions for the great
latitude which they allow are, generally, the loose
language of this part of the Act, the merits of the

‘classes favoured by the law, and the sufficiency, in each
case, of the description given, to prevent any one from
being misled, by, at least, putting him on inquiry.

 

 Hill’s st. 3 Pa. L. J. 328. ? Shaffer v. Hull, 3 Pa. L. J.321.
* Knabb’s Ap. 10 B. 187.
THE CLAIM. 243

But, even with all this tendency to license and in-
dulgence, claims have been found insufficient, in this
respect.

In Washburn v. Russell, the claim was against “a
tract of land in Clarion county, on the waters of the
Clarion river, with one double saw mill thereon, situ-
ate on the Hast side of said river.” It was held to be
fatally defective,—too vague to be helped by proof.

The Court say :—“Had the waters not been men-
tioned, the mill would have appeared to be simply on
the Kast side of the river; and the case would have
been more nearly assimilated to Harker v. Conrad,
and Springer v. Keyser; yet it is difficult to say, that
the description would have been certain enough, even
then; though there had been no other double saw mill
to which it could have been applied. The office of
the description is to give notice to purchasers, and,
perhaps, creditors, who are surely not expected to
explore the course of a river, in order to discover, whe-
ther the particular property were intended. But this
description is, in its actual form, much more vague.
The waters of a river embrace a wide scope of terri-
tory; in this instance, the whole of the country; and
the description is not more precise, than it would
have been, had it contained no reference to the river
or its tributaries. Would it be enough to state, that
the building is in a particular county? Yet, in effect,
no more was done, in this instance. It strikes us, at
a glance, that such is not the description required by
the statute.” *

 

"1B. 499.
244 THE CLAIM.

In some cases, also, where the description has not
only been loose, but actually erroneous, the court has
decided against the claim.

Where a house was described as “situate in Clinton
street on the north side thereof, and 130 feet east of
Eleventh street, containing in front on Clinton street
20 feet,” and it, in fact, began at the distance of 116
feet east of Eleventh street, the claim was, indeed,
held sufficient.’

But, in a later case, where an ejectment was brought
for a house on the South side of Pine street, between
Ninth and Tenth streets, and the plaintiff claimed under
proceedings, under a mechanic’s lien, against a house
on the south side of Tenth street, below Pine, the
court refused to hear proof, that they were, in fact, the
same.”

With reference to the description of “the size and
number of the stories,” we get but little light from the
cases.

In one of those to which we have just referred, the
building was described as a “double saw mill,” no
mention being made of the number of stories. The
court say: “A saw mill seldom, perhaps never, con-
sists of more than one story, and it was, therefore, un-
necessary to do more, in the way of description, by
structure, than to advert to another circumstance as

a substitute for the number of stories; by stating, that
the mill was a double one.’’®

 

" Ewing v. Barras, 4 W. & S. 468.
? Simpson v. Murray, 2B.76. * Washburn v. Russell, 1 B. 499.
THE CLAIM. 245

4

In Shaw v. Barnes, the number of stories of a dwell-
ing was omitted, but the claim was sustained.

We find no cases in which the question has arisen,
whether it is necessary to describe the building by its
character or object, as a dwelling-house, a church, a
barn, &c.

In Barclay’s Appeal, a claim was filed against a
building, with the “appurtenances.” The court held
it bad, and say:—“But an appurtenance may be a
yard, an alley, a cistern, a conduit pipe, an ice-house,
a smoke-house, a privy, a stable, or other out-house,
distinct from the principal building mentioned in this
written claim, and, consequently, not within the pur-
view of the lien laws. It is incumbent on the me-
chanic or material man to bring himself within the
statute, and to show title, affirmatively, on the face of
the registry; and not for antagonist creditors to show
the reverse.” ?

But, in a later case, in the District Court for the city
and county of Philadelphia, the same word, “appurte-
nance,” was used, but another part of the claim showed
that it was an ice-house that was intended. And the
court, without disturbing the doctrine of Barclay’s
Appeal, held, that though such a building might not,
if it were distinct from the main building, be within
the purview of the lien law, it would be if it were at-
tached to and formed a part of the main building; and
that proof might be given at the trial upon that point.

 

15 B. 20. — ° 1: 496.
8 Killingworth v. Allen, 8 Leg. Int. 126. And see Odd Fellows’
Hall v. Masser, 12 H. 510.
246 THE CLAIM.

We have, in an earlier part of the volume, com-
mented on these cases, in another of their aspects.
We refer to them, in this connexion, as suggesting
one reason, at least, why it may be best to state the
nature of the building and its use.

In the case last referred to, it was held, in respect.
to the description of the building, as it had, before,
been held, in reference to the statements as to the
work and materials, that the body of the claim might
be aided by a bill annexed. And, in a much earlier
case, it seems to have been held, that a plan might be
referred to, if it were filed.’

It has not been clearly decided, whether the claim
must allege a credit to the building. It has been held,
however, that it need not state, in the precise words
of the Act, that the work was done or materials fur-
nished, “for or about the erection or construction of
the building.” ?

A claim signed by counsel was sustained, where au-
thority was shown.°

A claim when filed, is not a record. It resembles,
very much, in its character, the registry of a mortgage.*
If it be defective, the filing of it does not exhaust or
affect the lien, which exists, independently of it, until
the six months haveexpired.’ A second, third or fourth
claim may be filed; and no prior one can be pleaded

 

*M‘Donald ». Lindall, 3 R. 493. ’ Kelly v. Brown, 8 H. 446.

8 Donahoo v. Scott, 2 J. 45.

“ Davis v. Church, 1 W. & 8. 240. See Lauman’s Ap. 8 B. 478.

5 Bournonville ». Goodall, 10 B. 133. Chambers v. Yarnall, 3
H. 265.
TOE CLAIM. 247

against the last. In a late decision, the court say:
“Nor, is there any thing in the suggestion, that the
means of enforcing the lien given to mechanics and
material men by the Act of 1836, are exhausted in
an abortive attempt to pursue the directions of the
statute, by filing the claim within six months. This
is but the mode of giving it fruitful effect; and, should
it fail, from some technical, or even substantial defect,
the lien is no more destroyed, than would be a bond,
sued out by an improper or inapplicable writ. The
claim still remains, and so does the lien, until barred
by the lapse of six months after the work finished or
materials furnished. The mistake originated in con-
founding the lien, which derives its vitality altogether
from the statute, independently of any recent entry,
with the remedy, which, to be sure, must be com-
menced within the six months. But, within that
period, it may be renewed as often as the exigencies
of the claimant’s case may demand. In this respect,
it is precisely like an action by writ, always open to
the party, until barred by the statute of limitations,
or an adjudication upon merits. To hold otherwise,
might be attended, not only, by inconvenience, but
gross injustice,—a hazard which no analogy in the
law calls upon us to encounter, and against which we
are admonished, by the frequent failure of these re-
corded claims, upon merely formal grounds, or because
of a want of the due observance of the statutory re-
quisitions. A guard against the abuse of the right
will be found in the costs attendant upon its exercise,
248 THE CLAIM.

or, if malice be present, in the remedy afforded by the
law in such cases.”*

A claim cannot be amended. If the time for filing
it has not expired, a second may be filed; but, if it
has, there is no remedy.”

The danger of allowing an amendment is apparent.
There would be no safety for purchasers or lien cre-
ditors. Misled by a false description or defective
statement in a claim, to disregard it and spend money
on the faith of a supposed freedom of property from
incumbrance, they would be surprised by a neo
restoration of the lien.

We have already referred to the time within which
the claim must be filed, in order to continue the lien.’

 

" Bournonville v. Goodall, 10 B. 188.
® Hill » M‘Dowell, 7 Leg. Int. 179. Havilland v. Pratt, 9 id. 98.
5 Ante, p. 181, et seq.
JOINT, APPORTIONED CLAIMS. 249

CHAPTER V.

OF JOINT, APPORTIONED CLAIMS.

THERE is a species of claim, of much importance,
which has so many and such important peculiarities,
that it is proper to treat it separately.

It was held, in one of the earlier cases, that, under
the Act of 1808, a claim could not be filed against two
adjoining houses, owned by different persons, for ma-
terials furnished to them indiscriminately. The court,
however, expressly refrained from giving an opinion,
as to a case in which the houses were all owned by
one person.’

It appears, however, to have been decided by the
District Court, for the city and county of Philadelphia,
that a joint claim could not be filed, even where the
houses were owned by the same person.”

In a subsequent case, however, the court held, that
a claim for work done, and materials furnished, under
a general-request, and without any specific contract,
might be filed against several houses jointly, when
they were owned by the same person; or, that the
claimant might apportion the amount among them,

 

1 Gorgas v. Douglas, 6 S. & R. 512. Thompson v. Ward, Wh.
Dig. 5 Ed. pl. 151. |
2 Atkinson v. Graves, Wh. Dig. 5 Hd. pl. 148.
250 OF JOINT, APPORTIONED CLAIMS.

according to the value, or price of the materials or
work, and file a separate claim against each. The
court say:—‘So, I, also, think, that, where the lum-
ber merchant furnishes materials for, or the mechanic
does work, in the construction of, two or more con-
tiguous houses, belonging to the same person, under
a general request, without any specific contract for
each house, separately, that he may under the Acts
of Assembly, either file his claim for the amount
against all the houses jointly, or he may apportion it
among them, according to the value or price of the
materials furnished, or the work done to each; and
file his claim, accordingly, against each house, sepa-
rately, and thus, continue his lien, in either form.
“There being nothing, then, as I conceive, in the
Acts of Assembly, which restrains the parties from in-
cluding, in the same contract, materials for, and the
work of as many contiguous houses as they please, it
would seem to follow, that the nature and terms of it,
together with the work done under it, ought to regu-
late the operation and extent of the lien. Hence, it
would extend itself to all the houses or buildings,
actually commenced, for which the materials were
furnished, or work done, under the same contract, and
would become a joint lien for the whole amount of
the debt, commencing on each house with the com-
mencement of the building thereof. This appears to
be, not only, the most obvious as well as safe and cer-
tain rule or guide, by which the nature and the extent
of the liens of material men and mechanics may be
determined, but the best suited to give to those per-
JOINT, APPORTIONED CLAIMS. 251

sons that degree of security for the payment of their
respective debts, which was intended by the legislature.
Tn its operation and effect, it may be fairly likened to
the lien of a mortgage given to secure the repayment
of money borrowed, upon a number of different tracts
of land, say, eighteen, in all, lying in as many diffe-
rent counties of the State. The lien under it would
commence, and the whole amount of the debt become
a charge upon each tract, from the date of the record-
ing of the mortgage, in the county in which each tract
was situated; and, as it would, scarcely, be practicable
to have the mortgage recorded in any two of the coun-
ties, on the same day, the date of its lien, on each tract
of land, would vary, accordingly; but, as soon as re-
corded, in all the counties, the mortgage debt would
become a joint lien, upon all the eighteen tracts of land
embraced in the mortgage. And if, in such case, af-
terwards, while other liens existed on the mortgaged
lands, some of prior, some of even, and others of sub-
sequent date to that of the mortgage lien, a judicial
sale were to be made of all the lands, under a pro-
ceeding had upon the mortgage, for that purpose, and
the moneys arising therefrom prove insufficient to pay
off all the liens, the rule for appropriating it, in such
case, according to seniority of lien, could not, well, be
misapprehended, as it must be familiar to all.”

“In further explanation of the principle here in-
tended to be laid down, I would observe, that, in case
of a joint lien, each house or building bound by it, is
liable for the whole amount thereof; and where there
are other liens of equal date, some joint, and others
252 JOINT, APPORTIONED CLAIMS.

several, as in the present case, all of equal date, the
money arising from a judicial sale of all the houses,
must be marshalled and appropriated in such manner,
that the proceeds of no one of them shall be appro-
priated to the discharge of any subsequent lien, as
long as any portion of a prior lien, either joint or se-
veral, upon the same house, remains unsatisfied.” *

The Act of 1831 provided as follows:—“ And
whereas, it sometimes happens, that several houses
and other buildings, adjoining each other, are erected
by the same owner, so that it is impossible for the per-
son who has found and provided materials for the
same, to specify, in his claim filed, the particular house
or other building for which the several items of his
demand were so found and provided: and, whereas,
doubts have arisen, as to the true construction, in such
cases, of the laws of this Commonwealth: therefore,

“Sect. 4. It shall and may be lawful, in every such
case, for the person so finding and providing materials,
as aforesaid, for two or more adjoining houses, and
other buildings built by the same person, owner of
the same, and debtor for the said materials, to file,
with his claim thereof, an apportionment of the amount
of the same among the said houses and other buildings,
and each of said houses and other buildings shall be
subject to the payment of its said apportioned share
of the debt contracted, in the same manner as is pro-
vided by law in other cases.”

The Act of 1836 provides that :—“TIn every case, in

 

1 Pennock v. Hoover, 5 R. 318, 319.
JOINT, APPORTIONED CLAIMS. 253

which one claim for materials shall be filed by the
person preferring the same against two or more build-
ings, owned by the same person, the person filing such
joint claim shall, at the same time, designate the
amount which he claims to be due to him, on each of
such buildings, otherwise, such claim shall be post-
poned to other lien creditors; and the lien of such
claimant shall not extend beyond the amount so desig-
nated, as against other creditors having liens by judg-
ment, mortgage or otherwise.”

With reference to this section, the Commissioners
say :—“§ 14, alters somewhat the provision of section
4, of the Act of 1831, the preamble to which ex-
plains the necessity of the provision. The last part
of that section, which says, that the several buildings
shall be liable to the apportionment made by the
claimant, has been omitted, because it seems objection-
able, that the party should have a right, conclusively,
to fix the liability of property which may be in the
hands of a third person; though it is proper, that,
having made an apportionment, he should be bound
by it, as against other creditors or purchasers. It is
believed to be best, to leave the correctness of the ap-
portionment to be determined by the Court, or a jury,
if the parties interested should dispute it.”

It is, of course, proper, in these claims, to aver a
joint ownership of the houses against which the claim
is filed. Perhaps, in analogy to the decision, under
other parts of the law, however, an omission to do
this, might be supplied by proof at the trial.

It will be observed, that the provisions of this Act
254 OF JOINT, APPORTIONED CLAIMS.

apply only to a “claim for materials.” And under it,
in the District Court for the city and county of Phila-
delphia, it was held, that a claim for work cannot be
apportioned."

But in the case of Donahoo »v. Scott, the Supreme
Court decides the contrary. In that case a joint ap-
portioned claim for work was sustained.’

It might be a question, whether those who do work
for a block of buildings are left, as they were before
the Act of 1836, with the privilege given them under
the decision in Pennock v. Hoover, of filing, either a
joint claim, or several apportioned claims; or whether
the intention of the Act was to exclude them entirely.
But how they could file the peculiar joint apportioned
claim, given by the Act, only to material men, is not
very clear. And, yet, the decision in Donahoo »v.
Scott, is, not only, a confident one, but expresses some
impatience against the objection.

This subject, however, is set at rest, by an Act of
April 25th, 1850, which enacts: —“That the several
laws of this commonwealth authorizing an apportion-
ment of the amount due for materials furnished to
two or more buildings owned by the same persons,
among the said buildings, shall extend to and shall
authorize, in similar cases, an apportionment for work
done, and for work done and materials furnished, where
the same are furnished under one contract, as fully, and
in the same manner, as 1s now authorized and allowed,
in the case of materials furnished.”

 

1 M‘Namee v. Stoever, Wh. Dig. 5 Ed. pl. 154. 22 J. 45.
JOINT, APPORTIONED CLAIMS. 255

It was decided at an early day, as we have already
seen, that a joint claim could not be filed against ad-
joining buildings owned by different persons.*

In a late case, in the District Court for the city and
county of Philadelphia, distinct claims were filed
against each of several adjoining houses, for appor-
tioned sums, making, in the aggregate, the price of ma-
terials furnished to all of them, indiscriminately, upon
the order of the same person, who was contractor for
the whole block. The court struck them off, on motion,
saying:—“It appears that the bills were contracted
with different persons, and the materials furnished
on the credit, not of the particular building, but of
that and another building, owned by another person,
the contractor being the same. We have already de-
cided, that, in such cases, a general claim cannot be
filed, nor can a separate claim; for it is clear, ‘hat
materials were furnished, indiscriminately; and sepa-
rate claims will not be supported, as the allegata and
probata would not agree. The plaintiff must show
that the particular materials were furnished to the
particular buildings.”

In the subsequent case of Davis v. Farr, the same
court made a similar decision. But the Supreme
Court reversed their judgment, and reinstated the
liens which had been stricken off. Burnside, J., in
delivering the opinion of the court, says, with refer-
ence to the Act of 1836: “The spirit and object of
the Act are, that each house should pay for its own

 

1 Ante, p. 249.
256 JOINT, APPORTIONED CLAIMS.

lumber; and, when the contractor is erecting two
houses for different persons, unless the material man
can divide his bill which is purchased by the con-
tractor, and file a lien for a proper portion to such
building, the first section of the Act is defeated.
The proceeding is im rem, and I am unable to discover
any good reason why this should not be done. ‘Every
building, by the act, ‘is subject to a lien, for the pay-
ment of all debts contracted for work done, or materials
furnished” The only argument of weight against
such a course is, that the lien may be filed against
one of the buildings, for an improper proportion; but
this can be adjusted by the jury, on a trial on the
scire facias, under the direction of the court.”*

In cases which were clearly within the Act of 1836,
as to apportionment, in respect of the nature of the
debt and the ownership, the question has arisen, what
houses are within the provision. The statute speaks
of two or more buildings; but it has been settled, that
they must be adjoining houses; or, in other words,
constitute one block.

In Pennock v. Hoover, the question appears to have
been presented, whether a joint claim could be filed,
where the houses did not adjoin each other, and it
was left undecided.2 But, in Chambers. v. Young,
it was distinctly held, that a joint, apportioned
claim against thirty-two houses, of which eight
adjoined each other, on one street, twelve, on
another street,.and the remaining twelve, on a third

 

11 H. 170. 25 RK. 292.
JOINT, APPORTIONED CLAIMS. 257

street, constituting three distinct blocks, not adjoining
each other, could not be sustained. Gibson, Ch. J.,
delivering the opinion of the court, says: “The claim
first filed, embracing, as it did, the block of houses on
Carlton street, as well as the block on Callowhill
street, was not sustained by any statute or precedent
construction; and the claimant might file a second
time, as if it had not existed. The principle ruled in
Pennock v. Hoover, that a joint lien might be filed
against adjoining houses, put up together, because it
might not be in the power of the claimant to discrimi-
nate, was the basis of the thirteenth section of the
Act of 1836, which sanctioned it, and provided for
carrying it out, by an apportionment of the gene-
ral charge. The word ‘building’ used in every Act
upon the subject, was, strictly, applicable to a block,
which, though composed of separate houses, was put
up as a whole; but it could not be predicated of
separate blocks, in different streets, which could, in
no aspect, be viewed as entire. As a charge for
labour or materials furnished to the builder of a
particular block, could not be apportioned, with
certainty and convenience, in the first instance, ne-
cessity required it to be joint; but it is easy to dis-
criminate between separate blocks, in regard to which
no such necessity can exist. A joint claim against
them would require an apportionment, in the first
place, between the blocks themselves, as integers, and
in the second, an apportionment, respectively, among
the houses composing them, a proceeding not war-

Lé
258 JOINT, APPORTIONED CLAIMS.

ranted by the Act of 1836. The claim first filed was,
consequently, a nullity, and properly disposed of.” *

But, in a still later case, a joint claim was filed
against thirty-two houses erected by one owner, of
which, sixteen fronted on one street, and a like num-
ber on another street, parallel with the first, the yards
adjoining in the rear. The court held the claim to be
good, because “the buildings were put up by the own-
er, at one time, and on one lot, and the materials
were furnished for them all jointly.”?

In a case decided some time before the one last no-
ticed, a question of some novelty and interest arose.
A claim was filed against a two-storied dwelling-house,
Swiss barn, wagon-shed, wood-house, and wash-house,
smoke-house and ice-house on a farm. To this claim
it was objected, that it ought to have been appor-
tioned. It was held, however, that no apportion-
ment was necessary. Bell, J., delivering the opi-
nion of the court, says: “But the reason of the
enactment shows it was intended to apply only,
to the case of separate and distinct erections, ca-
pable of and intended for a distinct possession and
enjoyment. Looking to the mischief to be remedied,
it is very obvious, the statute has no reference, what-
ever, to the necessary buildings of a farm forming com-
ponent parts of a common property, and which, for
every beneficial purpose, must be occupied as one pos-
session. The dwelling-house, barn, wagon-house, and
other similar erections are but appendages of the farm,
the principal thing, and built, expressly, with a view

 

13 H. 265. See Campbell v. Furness, Wh. Dig. Sup. to 5 Hd.
pl. 42. 2 Taylor v. Montgomery, 8 H. 445.
JOINT, APPORTIONED CLAIMS. 259

to its more perfect enjoyment. They are, therefore,
to be considered as constituent parts of a whole, inca-
pable of separation, without injury; and, consequently
were intended for a several occupation.

“Such buildings are, in every particular, unlike
those which, though, apparently, joined, are, in fact,
completely divided, each, of itself, constituting an
object of distinct proprietorship and incumbrance.
The one is aggregate; the other is segregate. The
propriety of apportionment among the latter, is mani-
fest; its uselessness, as applied to the former, is not less
so. For the reasons given, it is apparent, a case like
the present was not within the contemplation of the
framers of thelaw. Though the language used, taken
literally, may include it, yet, being without the circle
of the mischief to be cured, it is, clearly, not embraced
by the spirit of the Act. It, consequently, remains
subject only to the prior statutes, which do not, im-
peratively, call for an apportionment.’ *

It would, of course, be better, in all these claims, to
aver a joint ownership, and the character of the build-
ings, as adjoining each other, or constituting a single
block.

The question has not yet arisen, what would be the
effect of a change of the ownership of one of the
houses, after the work was done. The rights of the
creditor ought not to be affected by such a fact.

Of the effect of a failure to apportion, in postponing
the claimant, we have spoken under another head.”

 

1 Lauman’s Ap. 8 B. 473. ? Ante, p. 185.
260 STRIKING OFF CLAIMS.

CHAPTER VI.

OF STRIKING OFF CLAIMS.

Ir a claim be defective, a mode of getting rid of it
is, to move to strike it off. Of course, the motion
will not prevail, unless the defect is one which is,
necessarily, fatal, and cannot be aided or supplied by
proof upon the trial. Many questions, as to the validi-
ty of liens, have been heard and decided upon motions
of this kind.

In Lehman v. Thomas, a petition was filed, as the
basis of the motion, and, upon it, a rule to show cause
was granted.” This, perhaps, is the more regular
course.

In the same case one of the parties demurred to
the claim, and his demurrer was sustained. The usual
mode, however, adopted in practice, is the motion.

It would seem, from some of the cases, that this
prompt effort to dispose of the lien meets with favour
from the courts, as it may save the expense of a trial.
Defects that will avoid a claim upon such a motion,
have been disregarded, after a trial upon the merits. °

In Bayer v. Reeside, Burnside, J., says: “We allow

 

* Lehman v. Thomas, 5 W. & S. 268. ? Thid.
° Shaw v. Barnes, 5 B. 21. Bayer v. Reeside, 2 H. 168.
STRIKING OFF CLAIMS. 261

a claim which is defective, in form, to be stricken off
on motion and rule, from the record; but, after a trial
on the merits, technical objections are disregarded by
the court.” *

 

12H. 168.
262 THE SCIRE FACIAS AND ITS SERVICE.

CHAPTER VII.
OF THE SCIRE FACIAS AND ITS SERVICE.

We have already spoken of the provision, in the
Acts of 1803 and 1806, for an action for the recovery
of the debt, based upon or collateral to the claim, and
of the difficulties that arose, in regard to the character
of this action and its relation to the claim.

The Act of 1808 was the first that made mention
of the scire facias. It enacted, that the creditor,
“having a claim filed,” might, “at his election, proceed
to recover it, by personal action, according to the na-
ture of the demand, against the debtor, his executors
or administrators, or by scire facias against the debtor
and owner of the building, or their executors, or ad-
ministrators.”

From the early cases it would appear, that this was
a scire facias issued, as now, upon the claim filed.

The Act of 1836 expressly declares, that the pro-
ceeding to recover the amount of any claim shall be
by a writ of scire facias, and gives the form of a writ.
We know of no other mode, at present, of suing out
the claim.

Where there is an apportioned claim, there must be

 

* Howard v. M‘Kowen, 2 Br. 150.
THE SCIRE FACIAS AND ITS SERVICE. 263

a scire facias against each separate house, for the sum
apportioned to it. This appears to have been the con-
struction both of the Act of 1831, and that of 1836.1
It appears, from the decision in Hampton v. Broom,
that the scire facias, under the Act of 1808, might
name the owner and make him a party to the pro-
ceeding, though he had not been mentioned in the
claim. That was a case in which a scire facias was
issued against one person, as owner, upon the trial of
which the plaintiff was defeated, and having issued a
second scive facias, upon the same claim, against
another person as owner, the judgment, in the first
scire facias, was pleaded against him, as a former re-
covery; but the court held, that the first scire facias,
being between other parties, the judgment on it was
not a defence. Of course, the two proceedings could
not have been had, if the owner had been named in
the claim and the scire facias had, necessarily, pursued
i :
But, under the later Act, this license cannot, as we
have before shown, be allowed. It has, indeed, been
held, that a scire facias upon a claim against a firm,
by its firm name, may, for the first time, state the
individual names of the partners.? But no greater
latitude than this seems to have been allowed. Ina
late case, where a mistake had been made in the scire
Jacias, by the omission of a proper party, the court
refused to allow an amendment making him a party.’

 

* Barnes v. Wright, 2 Wh.198. Jones v. Shawan, 4 W. & S. 264.
21M. 241. 5 Black’s Ap. 2 W. & S. 181.
* Noll v. Swineford, 6 B. 187.
264 THE SCIRE FACIAS AND ITS SERVICE.

Where a scire facias has been discontinued, or the
plaintiff has been nonsuited, he may issue a new writ,
upon the same claim."

The Act of 1808 pointed out the mode in which a
scire facias was to be served. But it is only impor-
tant, here, to refer to that required by the Act of 1836,
which enacts, that “‘the writ of scire facias, aforesaid,
shall be served, in the same manner as a summons, upon
the defendant therein named, if he can be found
within the county, and a copy thereof shall be, also,
left with some person residing in the building, if occu-
pied as a place of residence; but, if not so occupied,
it shall be the duty of the sheriff to affix a copy of such
writ upon the door or other front part of such build-
ing.”

The 18th section of the Act of 1836, required an
advertisement, but this provision was repealed by an
Act of 1842.

The Commissioners, in their report, say, upon this
subject,—“ These sections have been introduced for
the purpose of giving some additional notice to third
persons interested, of the proceedings upon a claim.
The provisions of the existing law seem to be suffi-
cient, as respects the owner of the property with whom,
or on whose account, the contract was made; but they
are strikingly deficient with respect to third persons,
such as purchasers, mortgagees, judgment creditors,
and other mechanics and material men, since they pro-
vide no kind of notice to them, while they may be

 

* Bolton v. Johns, 5 B. 145. Hampton v. Broom, 1 M. 246.
THE SCIRE FACIAS AND ITS SERVICE. 265

greatly prejudiced by the proceeding. Frequently, the
owner of property is insolvent, and indisposed to con-
test the amount of aclaim. Sometimes, he may collude
with the claimant, and a judgment may, thus, be ob-
tained, on a scive facias, toa much greater amount, than
the justice of the case would warrant; whereas, if the
lien creditors had notice, they might have come in and
disputed the amount.

“ But how is notice to be given to them? Ought
they to be made parties to the suit, as is required in
chancery, in England, or served with a rule to appear
and take defence, if they see proper? The objection
to this is, that 1t imposes on the claimant great ex-
pense and inconvenience, in making search for all these
persons, whom it will be necessary to trace through
the various offices, especially in the case of mortgages,
which must be searched for against all persons who
have previously held the property; and, even after all
pains taken, some persons interested might remain
undiscovered. The expense, too, of serving writs
and notices upon those who were ascertained to be
interested, would be very great. The least expensive,
and, in some respects, the most certain mode, seems to
be that of public advertisement, which is adopted in
many other cases. The provision we have added in
the eighteenth section, that a copy of the scire facias
shall, in all cases, be left at the building or affixed
thereto, will come in aid of the other means of notice.
To give an opportunity of advertising, for a sufficient
length of time, it is necessary, that there should be an
interval of at least fifteen days, between the issuing
266 THE SCIRE FACIAS AND ITS SERVICE.

and return of the writ, which is the object of the
seventeenth section.”

In Donahoo »v. Scott, a return, “served by copy, on
A., one of the defendants, and by putting up a copy
in front of the building, and nihil as to B., the other
defendant,” was held sufficient.*

 

12 J. 46.
COMPELLING THE CLAIMANT TO PROCEED. 267

CHAPTER VIII.

OF COMPELLING THE CLAIMANT TO PROCEED.

Ir often happens, that a creditor, after filing his
claim, lets it lie, satisfied with his security, or, sup-
posing, that the mere embarrassment which it occa-
sions, as an incumbrance, may lead to’ its payment.
If the claim were valid, and could not be stricken
off, there appears to have been no remedy for the
owner, prior to the Act of which we are about to speak,
which was directed to this very hardship.

The 23d section of the Act of 1836 enacts, that,
“In every case in which any claim shall be filed
against any building as aforesaid, and no scire facias
shall have issued thereon, it shall be lawful for the
owner of such building, or any person interested
therein, to apply by petition, to the court in which
such claim shall be filed, setting forth the facts; where-
upon, such court may grant a rule upon the party
claimant, and others interested, to appear, in court, at
a time to be fixed, for such purpose, and, on the return
of such rule, may proceed, in like manner, as if a
scire facias had been issued by such claimant, and had
been duly served and returned.”

Two cases, in the District Court of Philadelphia, are
the only ones of which we know, directing the course
of practice under this section.
268 . COMPELLING THE CLAIMANT TO PROCEED.

In that of Borton v. Morris, the defendant filed his
petition, under this section, whereupon, the court made
an order as follows, with the intimation, that a like
order would be made in future cases: “That, in each
of these cases, the plaintiff shall file a statement or
declaration, upon the contract under which the said
work was done, stating the same, particularly; if any
special contract were made, annexing thereto, as a
part thereof, a bill of the items or particulars of the
demand, as fully as they appear upon the plaintiff’s
book of entries, if any such are intended to be offered
in evidence, on the trial; and, if no such entries are
to be offered, then the said bill shall state, particu-
larly, the dates or times at which said work and la-
bour were performed. And the court further direct,
that the defendant allege, particularly, his defence to
such parts of the plaintiff’s statement, or to such item
of his bill of particulars,-specifying the same, as he
intends to dispute; and neither party shall be allowed,
on the trial, to allege or prove any matter or thing not
contained in the statement, or bill of particulars, ex-
ception, or defence. The plaintiff to comply with this
order on or before the 7th day of June, 1837, or, in
default thereof, judgment of non. pros. to be entered,
in each case, and the claims to be stricken from the
record.” *

In Walter v. Streeper, it was held, that, after an
issue had been joined under this section, the claimant
could not suffer a non-suit. The court say:—“ Now,

 

12M. 109.
COMPELLING THE CLAIMANT TO PROCEED. 269

if, after the owner has called on the claimant to pro-
ceed, who does so, the claimant, at the trial, may suf-
fer a non-suit, the whole purpose of the law would be
defeated; for it would compel the defendant, again, to
call on the claimant to proceed, who, on another trial,
might, again, suffer a non-suit, and, so, the case would
never be ended.”*

 

1Td. 348.
270 COMING IN BY SUGGESTION.

CHAPTER IX.

OF COMING IN BY SUGGESTION.

Tue 19th and 20th sections of the Act of 1836 are
as follows:—Sect. 19. Upon the return of such writ,
it shall be lawful for any other person, having filed a
claim as aforesaid, to cause to be entered on the record
of the same suit, a suggestion, setting forth the amount
and nature of his demand, and, thereupon, he may
have a rule upon the defendant to appear and plead
thereto, as in other actions.

“Sect. 20. If the defendant shall appear and plead
to such suggestion, and issue, either in fact or law, be
joined, upon any plea, such particular issue shall be
tried and determined, as in other cases: if the defen-
dant shall not plead to such suggestion, after due no-
tice, judgment shall be entered for the claimant filing
the same, and the amount of the claim shall be ascer-
tained as in other cases.”

The Commissioners, in their report, say: “These
sections are intended to provide a method by which
other lien creditors may come in and avail themselves
of the opportunity of the suit commenced, without the
delay and expense of issuing successive writs of scive
facias. This mode of proceeding is not without pre-
cedent, even in our own jurisprudence.”
COMING IN BY SUGGESTION. 271

In a case in the District Court of Philadelphia, a
suggestion was filed, under these sections, and a rule
taken upon the defendant to plead.’

The 3d section of the Act of April 14th, 1855, con-
tains the provision: “That every claimant, having a
claim filed for work or materials, or both, who shall,
afterwards, proceed to perform further work, or furnish
other materials, or both, may make suggestion thereof,
on the same record, and filing a statement of the
amount and particulars thereof, which may be reco-
vered, with the original claim, under the writ; but if
the original claim shall have been sued out, then, a
separate scire facias may be issued for the supplemen-
tal claim.”

 

‘ Noyes v. Fritz, 2 M. 162.
272 JUDGMENT FOR WANT OF AN AFFIDAVIT OF DEFENCE.

CHAPTER X.

OF THE JUDGMENT FOR WANT OF AN AFFIDAVIT OF
DEFENCE.

By the Act of March 28th, 1835, judgments, for
want of an affidavit of defence, were allowed to be
entered “on liens of mechanics and material men,
under the Act of 17th of March, 1806,” in the District
Court for the city and county of Philadelphia.

By an Act of March 12th, 1842, it was enacted as
follows :—“ The 2nd section of the Act to which this
Act is a supplement, shall be construed to embrace
actions of scire facias on liens of mechanics and mate-
rial men, under the Act of the 16th of June, 1836,
entitled ‘an Act relating to the lien of mechanics and
others, upon buildings,’ and under any other Act ex-
tending the provisions of the said Jast mentioned Act;
and all former proceedings in said Courts, so far as
they are founded on such construction, are hereby con-
firmed.”

And, by an Act of March 11th, 1836, it is provided,
that, “In all actions which have been or shall be
brought in the said Court, upon any record remaining
therein, it shall not be deemed or held to have been,
or to be necessary for the plaintiff, to file, in the office
of the prothonotary of the said Court, a copy of such
record, to entitle him to enter a judgment under the
AFFIDAVIT OF DEFENCE. 273

2nd section of the Act to which this is a supplement:
Provided, he shall have complied with the other re-
quisitions of the said Act.”

Under these Acts, the practice is constant, to take
judgments, under writs of scire facias, upon claims, for
want of an affidavit of defence, without filing any copy.

In Richards v. Reed, the court refused to give judg-
ment for want of an affidavit of defence, where the
contractor was dead, and his administrator was sued.’

 

18 Leg. Int. 126.

18
274 PLEADINGS.

‘

CHAPTER XI.
OF THE PLEADINGS.

WHERE no judgment is entered, for want of an afti-
davit of defence, the parties proceed to issue as in other
cases. \

The scire facias is a sufficient declaration. No other
need be filed. The first step, therefore, in the tech-
nical pleading, is the plea.

When the claim and scire fucias only named one of
two contractors, the court held, that it was matter of
abatement, and ought to have been so pleaded.’

Where a claim is defective on its face, and no mo-
tion to strike it off has been made, it appears that a
demurrer is not irregular.’

A plea of “no lien,” has, it appears, been filed, in
some of the cases.* But it has been expressly held
to be bad. In a late case, the court refused to treat
it as anything but a general demurrer. But the judge

 

1 Ridgway v. Hess, 1 Br. 347.

? Richabaugh v. Dugan, 7 B. 3894. But see Howard v. M‘Kowen,
2 Br. 150.

* Bartlett v. Kingan, 7 H. 841. Bayer v. Reeside, 2 H. 167.
Lehman v. Thomas, 5 W. & 8. 262. M‘Dowell v. Hill, 7 Leg. Int.
179.

* Johns v. Bolton, 2 J. 889. M*Dowell v. Hill, 7 Leg. Int. 179.
2 H. 175.
PLEADINGS. 275

takes occasion to say :—“ Indeed, it is so entirely un-
certain, in its short form, whether it means to raise
an issue in fact, or of law, that it should not be allowed,
and should be strigken off on motion.”

These, as far as we can find, have been the pleas
by which the parties have endeavoured to avail them-
selves of defects on the face of the claim. We may
refer, however, in this connexion to an instance in
which a plea was as follows:—*“ The claim is null and
void, because it does not state the kind and amount
of materials, and the times when furnished, and this
he is ready to verify by the record,” was stricken off
by the court on motion."

The registry of a mechanic’s claim, being no record,
a plea of “nul tiel record,” is a nullity. In a case
where such a plea was filed, the court say :—“ Had
there been a variance between the registry and the
scire facias, the defendant might, perhaps, have de-
murred.” ?

In regard to the pleading, in this action, Lowrie, J.,
in the District Court of Allegheny county, says, in one

‘of the later cases: “I know of no proper pleas, in
this anomalous form of action, except such as distinctly
state the facts upon which the defendant relies for his
defence, or such as deny the allegations which he re-
quires the plaintiff to prove. He may traverse the
allegation of the doing of the work, or furnishing of
the materials, or that the work or materials, or both,

 

1 Christine v. Manderson, 2 B. 363.
2 Davis v. Church, 1 W. & 8. 240.
276 PLEADINGS.

amount to so much; or plead, that the house is misde-
scribed, or that the work was not done, within six —
months, or he may set up payment, release, or other
matter in evidence.”* ;

The ordinary pleas in bar to the scire facias, are the
short pleas, “non assumpsit,” “payment,” “set-off,” with
leave.” In one case, we find, that, even a terre tenant
who came in to defend, upon notice of the scire facias,
pleaded “non assumpsit and payment, with leave, &c.”’

It is evident, however, that the plea of non assump-
sit is not proper where the basis of the claim is not a
simple contract debt, but an agreement under seal.

We find no cases showing, what may be given in
evidence, under this plea, when it is proper. It is
probable, that many of the defences that would avail
the defendant should be specially pleaded. Such a
course is accompanied, only, with the peril attendant
upon the form of every special plea. There is no
doubt that a special plea is good, though the evidence
proper to sustain it may be admissible under the gene-
ral issue.

We find numerous instances, therefore, of special
pleas. Many of them are directed to the defects of
the claim, not appearing on its face, but arising from
matters dehors, and connected with technical theories
governing the proceeding.

Thus we find in one case, a plea of, “claim not filed

 

1MDowell v. Hill, 7 Leg. Int. 179.

2 See Chambers v. Yarnall, 3 H. 266. Ewing v. Barras, 4 W. &
8. 467.

* Hopkins v. Conrad, 2 R. 316; and sce Johns v. Polton, 2 J. 841.
PLEADINGS. 277

within six months,” to which no objection appears to
have been made.’

In another case, we find a plea sustained, averring,
that the premises against which the claim was filed
had been sold under judicial process, and the lien thus
discharged.”

We find it pleaded, in another case, that the work
was not done, nor the materials furnished, on the
credit of the building.’

So a plea, that, the person named as owner is not
owner, though not, it appears, a good plea, for the con-
tractor, is proper for the person named as owner.

A defence founded upon a special contract, must be
pleaded. For the plaintiff is not bound to refer to or
mention it.’

In Haworth v. Wallace, the defendant pleaded, that
the reputed owner had, at the commencement of the
building, and at the time of pleading, only a lease-hold
interest.°

In the case of Campbell v. Scaife, in the District
Court of Allegheny county, a plea that “the plaintiffs
never had any claim against the said house, in manner
and form as set forth,” was held bad, because it was a
mere denial of a legal conclusion.*

In the same case, a plea that the debt claimed ought

“not to be levied, &c., because the plaintiffs, at the time
of furnishing the materials, agreed to allow a credit of

 

1 Driesbach v. Keller, 2 B. 77. Bayer v. Reeside, 2 H. 167.

2 Johns v. Bolton, 2 J. 339. ® Gable v. Parry, 1 H. 181.
4 O’Brien v. Logan, 9B. 97. See Haly v. Prosser, 8 W. & 8. 138.
52H. 118. ° 8 Leg. Int. 74.
278 PLEADINGS.

four mouths on the same, which period had not elapsed,
concluding with a verification, was held bad on de-
murrer, because it merely showed, if true, that the
scire facias had issued prematurely, and, not, that there
was no lien, and the prayer should, therefore, have
been, that the writ should be quashed.

And a plea, that the debt claimed ought not to be
levied of said house, because the plaintiffs were sub-
contractors; under one I. M., impleaded with the
owners, who had undertaken to erect said house for
the owners, and to furnish the materials, and to re-
ceive payment therefor, partly in merchandise, and
partly in money, in one, two and three years after the
completion of the building; concluding with an aver-
ment of readiness, and with a verification, was held
bad on demurrer.

The effect of the plea of payment is not peculiar in
this action. ‘Evidence may be given of payment in
goods. But no advantage can be taken of any defect
in the claim, or in the filing of it. The plea admits
the truth of the averment in the writ.’

It has been held that the contractor may plead a
set-off.

Another claim filed for the same debt is not a good
plea.’

But a judgment for the defendant, in a personal
action, for the same debt, is a good plea.

 

1 Richabaugh v. Dugan, 7 B. 394. Lewis v. Morgan, 11 8. & R.
235.
2 Gable v. Parry, 1H.181. —* Bournonville v. Goodall, 10 B. 183.
THE EVIDENCE. 279

CHAPTER XII. :

OF THE EVIDENCE,

Upon the trial, the plaintiff in the scire facias, must
prove the case upon which he relies, unless he is re-
lieved from it, by a plea which assumes the affirma-
tive of the issue.

In presenting the points which have been decided
upon the subject of the evidence, in these proceedings,
we shall take the different steps of the plaintiff’s case,
in such order as we may suppose them to be proved
upon the trial.

Early steps in the proof would, properly, be the
facts of the erection and construction, and the cha-
racter of the building to bring it within the Act.

The time of its commencement need not be proved.
The judgment is irrespective of that, and does not find
it, or conclude any party with reference to it. When
rendered, it is left to struggle with other liens for pri-
ority, and to have the date of its relation back estab-
lished, when a case arises in which it becomes impor-
tant. It is not made a question upon the trial of the
scire facias.

The names and characters of the parties should be
shown,—their relative positions, as owner and con-
tractor, and the title of the former, to the premises
280 _ THE EVIDENCE.

against which the claim is filed. For, if his interest
be, merely, of a lease-hold character, there can be no
recovery. But the jury does not, where there is a re-
covery, find the character of the estate which is affect-
ed, nor does the verdict conclude that question.

It would seem from the views of the Court which
decided the case of Campbell v. Scaife, that, the claim-
ant must, also, show the contract of the chief con-
tractor with the owner." We have, already, sug-
gested, however, that the practice is not in accordance
with this opinion.

The debt must be proved,—the doing of the work
and the furnishing of the materials. As to the mode
of proving these there is, perhaps, no rule peculiar to
this system. The claim, itself, is, of course, not evi-
dence for the claimant,’ though it may, it appears, go
out with the jury.’

Where there is no special contract, those facts are
frequently proved by books of original entry in the
usual manner. Where there is such a contract, by
the contract, itself, and testimony showing perform-
ance.

It has been made a question, how far the proof must
correspond, exactly, with the allegations in the claim.

We have, already, found in examining the cases
bearing upon the form of the claim, that, where pro-
per statements in the claim are omitted, the court will

 

18 Leg. Int. 74.
2 Hills v. Eniott, 16 8. & R. 57.
§ Odd Fellows’ Hall v. Masser, 12 H. 510.
THE EVIDENCE. 281

often allow them to be supplied by préof. In such
cases, the proof is not of any peculiar form or charac-
ter, but only such as must have been offered, under
any circumstances, whether the claim were sufficient
or not, in order to make out a proper case. Thus
omitted dates have been proved in support of the claim;
and, where there has been no sufficient designation of
the locality of the building, or averment of a credit
given to it, the Court has allowed proof, at the trial,
to supply them.’

But, where the statements in the claim are mistaken
or incorrect, may evidence be introduced which contra-
dicts them?

Thus, the claim must set forth the amount or sum
claimed to be due, and the nature or kind of the work
done, or the kind and amount of materials furnished,
and the time when the materials were furnished, or
the work was done, &c. Can these statements be
contradicted or corrected?

It is not necessary to prove the exact amount men-
tioned, tobe due. The plaintiff can recover no more,
but he may recover less than he claims.” And the
courts have gone still further, in their indulgence.
Where an impossible date was inserted in the claim,
the court allowed the plaintiff to recover upon proof
of the correct date.*

So, in another case, it was held, that the proof upon

 

’ Rehrer v. Zeigler, 3 W. & 8.258. Jones v. Shawan, 4 W. & 8.
257.

2 Jones v. Shawan, sup. Hill v. M‘Dowell, 2 H. 176.

§ Hillary v. Pollock, 1 H. 186.
282 THE EVIDENCE.

the trial, as to the identical days of doing the work
or delivering materials, need not conform exactly with
the claim." Probably, the same doctrine would be
held, in reference to the precise nature or kind of the
work, or kind and amount of materials.

And, where the bill annexed to a claim, set forth
a certain sum due as the contract price, on the trial
an expert was called, to prove the measurement value
of the work, the agreement having been lost, and the
court sustained the proof, saying, “The measurement
of the work, proved by Sterret, was competent, though
different from the claim filed; inasmuch as the plain-
tiff could recover no more than the amount specified
against a purchaser.”?

In Hill v. M‘Dowell, the claim was for $248,02, for
“‘carpenter’s work done to the house,” and the plain-
tiff, in spite of objection, was allowed to prove the
measurement value of what he had done.®

But there are limits even to the indulgence shown
to this class of creditors.

Thus, it was held, that where the claim described a
house as in one street, in an ejectment, by one hold-
ing, under the claim, a house in another street, parol
testimony could not be admitted to show, that the
latter house was intended by the description in the
claim, and, that the defendant, who built it, knew
that it was so.‘

 

” Haviland ». Pratt, 9 Leg. Int. 98. 2 Jones v. Shawan, sup.
$2 Hf.176. And see Thorn v. Heugh, 9 Leg. Int. 46.
* Simpson v. Murray, 2 B. 76. :
THE EVIDENCE. 283

We have seen, that a special contract, for the doing
of the work or furnishing the materials, need not be
mentioned in the claim. It must, of course, however,
be proved on the trial, and its performance established.

It has been made a question, how far the owner is
bound by a contract made by his contractor. It is
evidence against him in favour of the mechanic, but
is it conclusive?

In a case in the District Court for the city and
county of Philadelphia it was held that it was not,
but that the owner might show, that the contract
price was too high, or beyond the fair market value,
at the time; that the contractor had been careless of
his interests, or had made an improvident and unjust
bargain, and this, where no fraud was alleged.1 And
this seems to be confirmed by the Supreme Court, in
a later case.?

The next step in the testimony is to verify the de-
scription of the house, its locality, &. How far the
proof may supply defects or omissions, in the claim,
we have already shown.

The work must have been done, “for or about the
erection or construction,” in other words, on the credit
of the building. This must appear, affirmatively, from
the evidence.

A usual and proper mode of proving this credit to
a particular house is, by a charge to the house, on the
book of original entries.

 

1 Cattanach v. Ingersoll, 9 Leg. Int. 7.
? Odd Fellows’ Hall v. Masser, 12 H. 511. § Ante, p. 241, &e.
284 THE EVIDENCE.

There has been an apparent inclination, in the
minds of some of the judges, to make the book of
original entries, in all cases in which it is possible, the
only evidence of this credit. And, though it has been
since established, that such an entry is not indispensa-
ble, yet the courts lean strongly in favour of such evi-
dence, and against a case in which this form of the
charge is not pursued."

In the case of Dickinson College v. Church, already
largely cited, upon another point, the court says :—“ It
is not indispensable, as was ruled in Church v. Davis,
(9 Watts, 304,) that the account should be opened
against the building. The Act does not prescribe the
kind of evidence necessary to prove, that the debt was
thus contracted, but leaves that to depend upon the
ordinary rules of evidence. Yet, notwithstanding, it
would be well worth the serious attention of the ven-
dors, to pay some attention to this, as, when this is
omitted, the account comes before the court in rather
a suspicious and questionable shape. It enables ma-
terial men, when a contractor is engaged in different
works, at the same time, to fasten a lien on all, or any
one, or more of them, at his pleasure. The owner
should have, at least, all the advantage that may arise
from an unequivocal intention to hold the building
answerable to the amount of the materials which may
be furnished. It very often happens, that when the
materials are purchased, the personal responsibility of

 

1 Tiills v. Elliott, 16 8. & R.56. M*‘Mullen v. Gilbert, 2 Wh.
277. Kelly v. Brown, 8 H. 447.
THE EVIDENCE. 285

the contractor is deemed amply sufficient; but subse-
quent events make it expedient to resort to another
security. This affords a temptation, which is irresis-
tible, to create a lien by the aid of parol testimony,
when such a thing never entered into the imagination
of either vendor or vendee. When this is the case,
where there is more than one building, it will be, usual-
ly, entered against that building which happens to
afford the best security for the debt.”?

No particular form of the entry is necessary. It
should refer to the house, for which the work is done,
or materials furnished, as well as to the contractor.
It should be entered as done or furnished to or for the
contractor, for the building. But no case goes so far
as to require the formal recital in books of account,
that the work was done or materials furnished, “for or
about the erection or construction,” &c. Indeed the con-
trary has been held.* Where the entries require the
aid or support of parol testimony, for this purpose, it
is often allowed. Thus, where the book of original en-
tries charged materials to two blocks of houses, jointly,
and without discrimination, and parol evidence was ab-
solutely necessary to specify to which block the par-
ticular materials in question were applied, the court
permitted it to be given.°

But, notwithstanding the apparent leaning of the
court, in favour of proof of a credit to the building by

 

11 W. & 8. 466. ’ Kelly v. Brown, 8 H. 447.
3 Church v. Davis, 9 W. 304. Kelly v. Brown, 8 H. 446. Dick-
inson College v. Church, 1 W & S. 466.
286 THE EVIDENCE.

the proper entry in the book, wherever it is possible,
it has, frequently, been held that other evidence of
such a credit may be given, where there is no such
entry.

What such other evidence may or must be, is not,
distinctly, defined by the decisions. But proof, that
the work was upon the house, or that the materials
were ordered for it, and delivered at it, appears to have
been treated as making a prima facie case for the plain-
tiff, of a credit to the building. If there be proof of
actual use of the materials in the building, of course,
it makes a still stronger case, though that is not con-
clusive.

For, as it is the privilege of the plaintiff to supply,
by parol testimony, an entry defective in this par-
ticular, it is, of course, permitted, that the defendant
should rebut the allegation of a credit. given to the
house, whether there is such an entry in the books or
not. And, in the effort to do this, several questions
have arisen as to the competency and sufficiency of
proof.

It has been urged, that there can be no credit to
the building, unless materials have been delivered at
the building, by the person furnishing them.

In Hinchman v. Graham, it was alleged that the
lumber was delivered at a distance from the house.
But the court do not regard the objection. They say:
“But, it is said, that there is a distinction between
materials delivered at or near the building, or at a
distance from it. But I cannot see it, provided the
delivery at a distance was in the usual course of busi-
THE EVIDENCE. 287

ness, as it was in this case. It is customary to pre-
pare part of the carpenter’s work at the shop; why
then should the boards be thrown down first at the
building, in order to be taken up again and carried
to the shop? The delivery at one place or another is
no further important, than, as it furnishes evidence
of the purpose for which the materials were sold. The
Act of Assembly makes no mention of the place of
delivery.”*

In the same case, Yeates, J., says: “My decided
opinion is, that where the materials are, bona fide,
contracted for, with an honest understanding, on the
part of the seller, that they are to be used in the erec-
tion thereof, it is of no moment, as to the creation of
the lien, whether the materials were delivered, in the
first instance, at or near the building, or not, or
whether the same were used in the building, unless
the supplier, by some unequivocal act on his part,
shall evince that he waives his lien.”

In other cases it has been urged as an argument
against a credit to the building, that the materials
furnished were not used in its construction. Such a
fact may be proved, but it has been held not to be
conclusive against the claim.’

In some cases, the proof has been, that while none
of the identical materials have actually gone into the
house, others, like in character and quantity, owing
to substitution or confusion, or some peculiar position °

 

128. &R.171. And see Dickinson College v. Church, 1 W. &
8. 466. * See ante, 118, et seq.
288 THE EVIDENCE.

of the parties, have taken the place of those furnished,
and been used in the erection.

Thus, in one case, nine mechanics and material
men entered into an agreement to build, together, nine
houses, each supplying work or materials, according
to his trade or occupation, with the agreement, that
no lien should be filed or claim made, by either party,
“against either of the other parties, for any labour or
materials furnished for or to either of the above men-
tioned buildings, except against the party or for the
buildings which each shall have agreed to erect, and
for such labour and materials, only, as shall be con-
tained in such building respectively.” One of the
parties filed a claim for lumber against the house of
another, and it was held to be sufficient for him to
prove, that, within the six months, lumber of a like
kind to that claimed, furnished by him, had gone into
this house, and that it was not necessary for him to
show a delivery of the identical lumber, upon the iden-
tical dates mentioned in his books.

In the case of an apportioned claim this must, of
course, be the case. It would be impossible for a ma-
terial man to show into which of several houses each
identical item of materials had gone.

But even the fact, that neither the materials fur-
nished, nor any like them have been used in the
house, seems not, of itself, to be conclusive against the
claim.”

 

1 Croskey v. Coryell, 2 Wh. 223.
* Hinchman v. Graham, 2 8. & R. 170. Wallace v. Melchoir, 2
Br. 104. Ante, 118, and White v. Miller, 6 H. 52.
THE EVIDENCE. 289

Again, it has been proved, that more materials have
been furnished, than could have gone into the build-
ing; but the fact of a credit to it being established, the
lien has stood.

But this fact, that the materials were not used in the
building, may be accompanied by other circumstances
which will ground a defence against the claim.

In a late case, Rogers, J., says: “It does not seem
to me, that it is dealing unfairly with the plain-
tiff, to take the account, as it appears on his own
book. But, making every allowance for the items
charged in the intermediate time, there is, still, an ex-
cess of materials, to no trifling amount, charged, over
the quantity which the defendants offered to show
could, by any possibility, be required in the erection
of such an edifice. The evidence tended strongly to
show gross negligence, if not fraud, in what we esteem
to have been the duty of the vendor. It is a great
mistake, which cannot be too soon corrected, if any
suppose, that when a person undertakes to furnish
lumber to a contractor, on the credit of a build-
ing, he is relieved from inquiring into the nature of
the building he trusts, whether it is brick or frame,
whether it is a one or three story house, or whether
it is large or small: that, in short, he can furnish ma-
terials enough to complete a three story house of the
largest dimensions, when the materials are intended
for a house of the most inferior description. The very
fact, that he credits the building, and does not depend,
altogether, on the personal responsibility of the con-

tractor, should, it would seem, immediately sug-
19
f

290 THE EVIDENCE.

gest the propriety of making the necessary inquiries,
as to the size, materials and nature of the intended
erection. We do not say, that a trifling excess, over
what the most rigid economy would require, will
vitiate the account; that would be an unnecessary,
or perhaps, unjust restriction; but when it is obvious,
that it is the result either of negligence or fraud, sound
policy, and a just regard to the interest of owners, re-
quire, that the consequences should be visited on his
own head. If any other rule is adopted, there will be
no security for owners, as the materials charged may,
and often will, exceed the value of the building itself.”*

In this case, the court below ruled out evidence, that
the claimant was a large contractor, and had other con-
tracts on hand, that the lumber claimed was not de-
livered at the building nor used in it, but in other
places; and, that it was impossible to use so large an
amount in the building. But the court above let in
the evidence. Among other things, however, it ap-
peared, that the account was against the contractor,
alone, and charged him with lumber of a date prior,
even, to the date of the contract for erecting the
building. .

In a late case three propositions are laid down by
the court, which we give in the very words of the opi-
nion.

“1. That where materials for the construction of a
building, contracted for in good faith, are delivered to
the contractor for the building, a lien for the price of

 

" Dickinson College ». Church, 1 W. & S. 466.
THE EVIDENCE. 291

the materials may be filed against the building, al-
though the materials were not used in the construction,
nor were of the right quality for a specific use, if that
fact was unknown to the seller, and they were of such
a character as to justify their use in the construction,
generally.

“2. That where the materials furnished are of the
kind that would induce a careful, prudent and skilful
man, \acquainted with the building, to believe, that
they could be used in its erection, and if they could,
in fact, be usefully employed in its construction, then,
the material man is not bound to inquire into the
character of the materials which the contractor had
agreed with the owner of the building to use in its
construction.”

“4, That if the materials were not furnished upon
the credit of the building, but, upon that of the con-
tractor, the plaintiff could not enforce his lien against
the building; and even if furnished upon the credit of
the building, if the contract was unfairly made, for an
exorbitant price, the plaintiff could only recover, as
against the building, what the materials were fairly
worth; and, that, taking a note for the price, against
the contractor, would not, of itself, bar a recovery
against the building.”*

The time when the materials were furnished, with
reference to the commencement or completion of the
building, has been made use of, to show, that no credit
was given to the building. Though not conclusive,

 

1 Odd Fellows’ Hall v. Masser, 12 H. 510.
292 THE EVIDENCE.

it has been received, with other evidence, as bearing
upon the question. Of course, materials may be fur-
nished so long before a commencement, or after a com-
pletion, that the material man could not have had
the security of the building in his mind

The existence of a special contract has often been
urged against the fact of a credit to the building. So,
also, the taking of a guarantee, or a note, or bond, or
other security. These cases we have mentioned, in
other parts of the volume.” As a general rule, such
‘special contract or security will not defeat the claim.

In one of the later cases, it was held, that an ex-
press agreement, on the part of the contractor, that
no claim should be filed, for the performance of which
he had given security, did not prevent a mechanic
from filing his claim. How far this would have been
so decided, if the mechanic had been a party to the
agreement, does not appear.”

The plaintiff must, of course, show that his claim
was filed within the six months;and the defendant
may, if he can, establish the contrary.

We now come to treat of the competency of wit-
nesses, in this connexion.

A contractor is not a competent witness for the
owner. So completely is he a partyin interest, and,
so entirely is he involved with the owner, that his
declarations are evidence against him.’

 

1 Case of the Olympic Theatre, 2 Br. 275. Church »v. Allison,
10 B. 416.

2 Ante, p. 121, ete. * Young v. Lyman, 9 B. 449.

4 Dickinson Collage v. Church, 1 W. & 8S. 464. Church v. The
College, 8 W. & 8. 220.
THE EVIDENCE. 293

It has been held, that the owner might make the
contractor competent, by a release from all. liability.”
But, in a later case, the Court hold, that such a re-
lease does not discharge the contractor from liability
to the plaintiff for costs, and, therefore, does not ren-
der him competent.’

A contractor is, however, a competent witness for
the mechanic,’ and so is a sub-coniractor.* So also, be-
fore an auditor to distribute the proceeds of a sheriff’s
sale of property affected by these liens, the owner was
admitted on behalf of claimants.’

The owner is not a competent witness for the con-
tractor, or a co-owner. If he be owner at the time of
the trial, he is not a witness for his grantor, who was
owner at the time the claim was filed, and, therefore,
made defendant.

But, where one who has been the owner for a time,
during the erection of the building, has ceased to be
owner, and has no interest at the trial, he may be
sworn for the defendant.®

In Holden v. Winslow, a scire facias was issued on
a mechanic’ claim, against E. C. W., with notice to
C. A. W., terre tenant. C. A. W. was offered as a wit-
ness, on the trial. It appeared, that he had no in-
terest in the property, when the contract for the work
was made, nor when he was called as a witness, but
had been owner during part of the intermediate period.

 

1 Thid. ? Haworth v. Wallace, 2 H. 120.
* Richabaugh v. Dugan, 7 B. 394, Evans v. Breban, 13 Leg,
Int. 12. * * Odd Fellows’ Hall v. Massey, 12 H. 510.

5 Hill’s Hst. 3 Pa. L. J. 323. 6 Jones v. Shawan, 4 W.& 8. 257.
294 THE EVIDENCE.

The Court say :—“ This is a sci. fa. on a mechanic’s
lien, and -is, therefore, a proceeding im rem, in which
no one is interested, as defendant, except, as owner
of the property against which the lien is sought to be
established; for that, only, is chargeable with either
debt or costs. The mere fact, that he has notice to
appear and defend, does not make him a party; for
that may be served on any one, at the pleasure of the
plaintiff. No one can claim costs, by reason of such
notice; for still, if he has no interest in the property,
he need not appear, and has no right to be heard.

“Carpenter A. Winslow had an interest in the pro-
perty when the suit was brought; but he had sold it
out, before the trial. He had no interest when the
contract was made. His connexion with the suit,
therefore, arose, entirely, out of his relation to the
property, and depended upon it. When that relation
ceased, he had no more right to be heard, as a party
in the proceeding. The fact, that the jury was sworn
as to him, does not affect the question; for he could
not be heard, to object to it, and could not be affected
by it. There was no contract relation binding him
to the plaintiff or affecting his competency, and he
was liable to no debt or costs, and entitled to none,
in that action; and he was no party to it, in any pro-
per sense. The Court was, therefore, right in de-
claring him competent.” *

 

17 H. 452.
LAW AND FACT. 295

CHAPTER XIII.

LAW AND FACT.

AFTER the evidence has closed, it becomes an im-
portant question, what is to be left for the decision of
the jury, and, what is for the court to decide. Most
of the points that the plaintiff must establish, in order
to reach a verdict, have, at one time or other, been
presented to the courts, with reference to their posi-
tion in this respect.

Thus, whether any and what labour has been done
or materials furnished is a question for the jury, and
whether they were done or furnished on the credit of
the house;* whether materials have been furhished in
pursuance of a special contract, or not;? and, if the
former, what the contract is, if not in writing;* and
to what part of an account a payment is to be appro-
priated.*

So, also, it has been held to be a question for the
jury, whether the lien is filed in time;° and, in ascer-

 

' Presbyterian Ch. v. Allison, 10 B. 418.

? Bartlett v. Kingan, 7 H. 341.

3 Yearsley v. Flanigan, 10 H. 489.

‘ Dickinson College v. Church, 1 W. & S. 462.

5 Driesbach v. Keller, 2 B. 77. Harker v. Conrad, 12 8. & R.
801. Hillary v. Pollock, 1 H. 186.
296 LAW AND FACT,

taining this, to find, whether certain work done is part

‘of the original agreement, or is part of the technical
erection or construction, or only extra, or isolated
work."

The District Court of Philadelphia, held, that, whe-
ther a building is within the Acts relating to me-
chanic’s liens, where the facts are undisputed, is a
question for the court. They say :—“'To hold other-
wise would produce this result, that one mechanic and
material man might recover from the building, while
another, with an equally good claim, might be defeated,
by the different conclusions of two different juries.” *
But the Supreme Court, in error, reversed this deci-
sion, and held, that, where Such a question was “diffi-
cult to decide,” it must be left to a jury”

' And in an earlier case, in the same District Court,
the question seems to have been treated as one proper
to be disposed of by an issue.°

It has been held to be a question for the jury, whe-
ther a building against which a claim was filed, was
in a certain town, to which the Act extended ;* whe-
ther it is sufficiently described for identification ;° and
what land is necessary for its ordinary and useful pur-
poses.°

 

1 Holden v. Winslow, 6 H.162. Presb. Ch. v. Allison, 10 B. 413.

? Amstrong v. Ware, 8 Leg. Int. 124, 8 H. 520.

“Perigo v. Vanhorn, 2 M. 362. See Smith v. Nelson, 13 Leg.
Int. 140.

* Telford v. Wallace, 141. 5 Ewing v. Barras, 4 W. & S. 467.

® Keppel v. Jackson, 5 W. & S. 320.
“THE VERDICT AND JUDGMENT. 297

CHAPTER XIV.

OF THE VERDICT AND JUDGMENT.

THE verdict is, generally, as in other cases, for the
sum due. The commencement of the building is not
found, nor the extent of the surface, or estate to be
affected.

In Bayne v. Gaylord, a certificate was given for a
defendant, for a certain amount, and no objection ap-
pears to have been made."

But to permit such a course would be wholly in-
congruous with the character of the proceeding. It is
entirely in rem, the judgment is purely such, and au-
thorizes no process against the person. The Act of
1808 , expressly provides, “that no judgment, rendered
in any such scire facias, shall warrant the issuing an
execution, except against the building or buildings
upon which the lien existed, as aforesaid.’ And the
whole tenor of legislation and decision is to the same
effect.’

The effect of a verdict or judgment, in this proceed-
ing, as in others, is to lead the court to look favoura-

 

13 W. 801.
° Holden v. Winslow, 7H.451. Matlack v. Deal, 1 M.254. An-

shutz v. M‘Clelland, 5 W. 487. Leib v. Bean, 1 Ash. 208.
298 THE VERDICT AND JUDGMENT.

bly upon every presumption which tends to support
it, and to show that it was regularly reached.

Thus, where it appeared, after a verdict for the
claimant, that the largest portion of the materials
included in the claim were furnished more than six
months before the claim was filed,,the court say:
“Then, again, after a trial, we are bound to presume,
that it was shown, that all the lumber was furnished
under one general contract; and, if so, if any part of
it is within the time, it is enough.”?

In Lauman’s Appeal, the court held, that the usual
rule, that “a judgment though irregular on its face,
and, even illegally recovered, cannot be impeached, col-
laterally, by third persons, though lien creditors of the
defendant, except for fraud or collusion,” applied to a
judgment on a scire facias, upon a mechanic’s lien.?

 

1 Fergusson v. Vollum, 8 Leg. Int. 64. And see Shaw v. Barnes,
5 B. 20. Bayer v. Reeside, 2 H. 167.
+8 B. 477.
EXECUTION AND SALE, AND THEIR EFFECT. 299

CHAPTER XV.

OF THE EXECUTION AND SALE, AND THEIR EFFECT.

THE execution, under the earlier Act, appears to
have been a fiert_facias.'

The Act of 1836 provides the writ of levari facias,
and prescribes its form. The Commissioners say:
“We suggest, in this section, that execution of a judg-
ment, in the proceeding, shall be by writ of levari facias,
instead of the fieri facias, inquisition, and venditions
exponas, which are now necessary. The expense of
holding an inquisition is so great, that we think it ought
not to be encountered, in the case of a mechanic’s lien,
which is, generally, of small amount. The delay, too,
is sometimes very inconvenient.”

We have, heretofore, referred to the cases, and Acts
of Assembly, which show, what estate, and what ex-
tent of ground pass by a sale, under such a writ.

As the proceedings prior to the execution do not,
peremptorily, require any exact description of the pre-
mises bound by the lien; and as the claim seldom de-
fines them, by metes and bounds, it, generally, becomes
necessary, before issuing execution, to ascertain their
true description, in order to prepare for a levy.

 

1 Matlack v. Hoy, 2 M. 30. (note.)
300 EXECUTION AND SALE, AND THEIR EFFECT.

In most cases, particularly in a city, where the
ground necessary for the ordinary and useful purposes
of the building is, generally, more distinctly defined,
the plaintiff may procure his description from the re-
cord of the deed to the defendant, or by an ex parte
survey or measurement. But, in some cases, such a
course may endanger the security of a sale, by giving
rise to questions which may lead to setting it aside.

The Act of 1836, after providing as we have, here-
tofore, noticed, for the setting out, by commissioners,
of the ground necessary for the ordinary and useful
purposes of the building, further enacts as follows:
“Tf execution shall be awarded, for the levy and sale
of any lot or piece of ground, upon which a building
shall be erected as aforesaid, before the boundaries of the
lot or curtilage which ought to be appurtenant thereto
shall be designated, it shall be lawful for the court,
upon application, to stay such execution until such
designation shall be made; and, thereupon, order the
sale to proceed, in such manner, and for such part or
parts, and in such parcels, as shall be most convenient
for the administration of equity among all persons in-
terested.”

This designation, it will be remembered, is made,
upon the petition of the owner or any lien creditor,
by commissioners appointed by the parties interested,
or, if they cannot agree, by the court.

In cases of apportioned claims, different writs of scire
Jacias, and levari facias, are issued, for each apportioned
sum, against each building.

The Act of April 10, 1848, giving certain District
EXECUTION AND SALE, AND THEIR EFFECT. 301

Courts jurisdiction, notwithstanding the apportioned
sums are smaller than those of which they have ju-
risdiction, expressly provides: “That nothing herein
contained shall prevent or impair the issuing and ex-
ecuting of separate writs of execution, as heretofore,
against all or any of such several apportionments.”

In an early case, it was held, by the court, below,
that a levy and sale of the property against which the
claim was filed, discharged all liens. The Supreme
Court in error, however, declined to decide the ques-
tion.”

That there was some doubt upon this subject, even
so late as 1836, appears from the case of Anshutz v.
M‘Clelland, in which the court below decide, that a sale
under one mechanic’s claim did not discharge another;
but the Supreme Court, in error, reversed the decision.

In this case, the Supreme Court say: “It is clear,
that a proceeding and sale of the house, upon any one
of the liens, will release it from the whole of them;
and the purchaser, at the sheriff’s sale, will, accordingly,
hold it, entirely discharged therefrom. This is per-
fectly manifest, from the language of the Act of 1806;
because it is expressly provided, that ‘if the house
should not sell for a sum of money sufficient to pay
all the demands for work and materials, then, in such
case, the same shall be averaged, and each of the
creditors paid a sum proportioned to their several de-
mands, This shows, demonstratively, that there can
be but one sale.”?

 

1 Gorgas v. Douglass, 6 8. & R. 512. But see Leib v. Bean, 1
Ash. 207. 265 W. 487.
302 EXECUTION AND SALE, AND THEIR EFFECT.

In Werth v. Werth, the same point was, in effect,
decided.! The language of later Acts is too explicit to
allow of doubt.

It has been made a question, how far this rule, that
liens are discharged, may be made to yield to agree-
ments between the parties.

In Twelves v. Williams, certain persons, having
mechanic’s claims filed, in view of a sale of the pre-
mises, which was about to be made by the sheriff,
under an execution, agreed with A., who had already,
at private sale, purchased them, subject to the claims,
that he should either bid up the property, so that the
proceeds would secure the claims, or buy it in, him-
self; and that, if he did the latter, the sale should not
prejudice the claims, but that it should be considered
as made subject to them. A. bought the property,
and, subsequently, made a general assignment for the
benefit of creditors. It was held, that his assignees
were bound by the agreement of A., with the claim-
ants, and, that the liens of the latter continued
against the property, and might be enforced, notwith-
standing the sheriff’s sale, and the assignment.”

A sale, not only, regularly, discharges all liens, ex-
cept those expressly saved by statute, but it puts a
stop to all further steps in the cause. The plaintiff
cannot proceed, even to ascertain his debt, or get his
costs. The cases under this head we have already
mentioned.?

A sale does not, of course, affect an adverse title.

 

12R. 151. 23 Wh. 485. ® Ante, p. 200.
EXECUTION AND SALE, AND THEIR EFFECT. 303

A mere trespasser could never subject the freehold to
a lien under any state of the law.’
We have, already, mentioned that the exemption Act

does not apply against the claims of mechanics and
material men.”

 

1 Bickel v. James, 7 W. 12. 2 Ante, p. 186.
304 DISTRIBUTION OF THE PROCEEDS.

CHAPTER XVI.

OF THE DISTRIBUTION OF THE PROCEEDS.

Tue 9th section of the Act of 1836 provides, that:
“Tf the building against which any claim shall be
filed, as aforesaid, or any part of the ground adjacent
thereto, shall be sold, by virtue of an execution, upon
any mortgage or judgment, before the extent of the
lien of the claimant shall be ascertained, as aforesaid,
the court out of which such execution shall have issued
shall have power to determine the rights of the re-
spective parties, and the apportionment or appropria-
tion of all liens, as aforesaid, and, for that purpose, may
appoint an auditor, to inquire into and report the
facts, and may decree distribution of the proceeds, ac-
cordingly; or, upon the application of any of the
parties, may direct an issue, for the determination of
disputed facts.”

We have already seen, that a sheriff’s sale arrests
all further proceedings, and that the mechanics and
material men, in common with judgment creditors,
are put to the proceeds.’

Upon a sale of premises subject to mechanic’s
claims without reference to the contingency mentioned

 

1 Ante, p. 801, 2.
DISTRIBUTION OF THE PROCEEDS. 305

in the section just referred to, an auditor, usually, dis-
tributes the proceeds. It is unsafe for the sheriff to
do so, because the time of the commencement of the
building, as well as the extent of the interest and sur-
face affected, and other matters, are questions of fact,
which he cannot decide, without danger.

It is peculiarly important, therefore, to ascertain
what points may be made or urged before an auditor,
against a claim.

When the claim has been pursued to judgment, we
have seen, that many questions are concluded, and,
put at rest, as against third persons, or those claiming
collaterally.

But, before judgment, other lien creditors may avail
themselves of defects in a claim, in order to increase
their own dividends. Thus, whether the statements
of the claim, in reference to the names of the parties,
the locality of the building, the nature or kind of the
work done, or the kind and amount of materials fur-
nished, and the time, &c., are correct, may be disputed
before the auditor. The Supreme Court, in a late de-
cision, say: “These views, in affirmance of the valid-
ity of the liens, make it unimportant to decide the
other question made on the argument, namely, whether
subsequent incumbrances can be admitted to object
deficiencies in the statement, in avoidance of the lien.
But, upon this point, we entertain no doubt. Until
now, their right to do so has never been questioned.

“It was permitted, without objection, in the much
contested case of Thomas v. James, 7 W. & &., 381;
no one dreaming of a doubt. A claim filed is not in

20
306 DISTRIBUTION OF THE PROCEEDS.

the nature of a judgment pronounced by a court. It
is, as was decided at the present term, but a means,
partaking of the character of process, of enforcing a
statutory lien. It comes not, therefore, within the
principle upon which the doctrine of Hauer’s Appeal,
5 W. & S. 473, and other similar cases, are based.
This is proved by the whole scope of the Act of 1836,
and, particularly, by the provisions of sections 5, 9,
18, 23, and 25, which, evidently, contemplate and
provide modes for the interference of mortgagees, judg-
ment-creditors, and other incumbrancers, having no
estate in the premises bound.”’*

It will be found, upon examining the cases to which
we refer, in this volume, that many of the most im-
portant questions have been settled upon the report
of an auditor appointed to make distribution of the
proceeds of property sold.

If it becomes proper for the court to direct an issue,
or one of the parties should require it, it will be al-
lowed.

In the case of Anshutz v. M‘Clelland, the court,
-after saying, that upon a sheriff’s sale, a claimant
could not proceed, even for the purpose of liquidating
his claim, say: “If, however, there should be any
controversy as to the amount of the debts, which were
liens, coming to any of the mechanics or others who
furnished materials for the completion of the building,
after it shall have been sold, and the money arising
therefrom brought into court, for appropriation or dis-

 

1 Knabb’s Ap. 10 B. 192.
DISTRIBUTION OF THE PROCEEDS. 307

tribution, the court have the power, if it should be
necessary, to have the amount ascertained by a jury,
to order a feigned issue, for that purpose, when all the |
parties concerned in the fund will have notice, and
an opportunity of being fully heard; which cannot
well be in a scire facias, at the suit of any one of them,
without notice to the others, which is never given.”?

In Keppel v. Jackson, a feigned issue was directed,
in order to ascertain, what land properly belonged to
the house.”

There are questions of some difficulty which might
arise in the distribution of the proceeds of premises
affected by mechanic’s claims, and which do not appear,
from any of the decided cases, ever to have been pre-
sented.

One of these questions may arise, where, from some
defect of parties or want of notice, a doubtful title or
estate is sold.

If, in such a case, there be enough to pay all liens,
the point would not, probably, arise; but, if the fund
falls short, we can imagine questions of extreme dif_i-
culty.

We have, in discussing the subject of parties, already
referred to.cases, in which it has been intimated by the
court, that, though the owner, at the time of issuing
the scire facias, need not be made a party, yet, if he
be not made a party, and the premises are sold under
the levari facias upon the claim, he may be permitted
to make the same defence in an ejectment, as he might

 

15 W. 492. 23 W. &S. 820.
308 DISTRIBUTION OF THE PROCEEDS.

have made in the scire facias. And, though most of
these decisions were under the earlier Acts, such cases
may, perhaps, arise under that of 1836.

Where the courts, therefore, say, that a sale under
a levari facias, upon one of several claims, arrests all
proceedings under other claims, it must, perhaps, be
construed to refer to those cases in which the absolute
interest and title are sold, after a regular proceeding,
against proper parties.

For, if, by reason of some defect in the proceeding,
such as the neglect to make the right owner a party,
a doubtful or defective title be sold,—one against
which the owner might make defence in an ejectment,
and a small fund be produced, it would be hard to
prevent a better sale by another claimant, who had
made the proper parties, which would be more pro-
ductive to himself and to the other creditors.

In Anshutz v. M‘Clelland, the claim and scire facias,
under which the sale was made, omitted to make the
owner a party; but the claim and scire facias of ano-
ther creditor, who claimed to go on with his proceed-
ing, in spite of the sale, was against the owner as well
as the contractor. Here was the very state of facts
to raise the question. The court, however, avoided it,
by deciding, that the knowledge of the owner, that the
contractor, who was, in fact, also, lessee of the pre-
mises, was building, made the claim bind his whole
estate, as fully as if he had been made a party.”

Ii, however, the case had been one in which the

 

1 Ante, p. 216. 5 W. 490.
DISTRIBUTION OF THE PROCEEDS. 309

lessee, who was in fact the owner, and who under the
state of the law at that time represented the whole
estate, was not made a party, the question would, dis-
tinctly, have arisen, whether another lien creditor,
who had made the owner a party, might not have
proceeded.
310 COSTS.

CHAPTER XVII.

OF COSTS.

THE costs of the proceeding, like those of the claim,
are payable out of the proceeds of the premises, whe-
ther they are sold under the claim or not, and when
they are sold, before he has prosecuted his claim to
judgment, the plaintiff does not lose his costs... The
defendants are not, personally, bound for them; indeed
the plaintiff cannot proceed, after a sale, to recover
them.

In the case of Matlack v. Deal, a plaintiff, in a scire
Jacias upon a claim, had an award of arbitrators in his
favour. The defendant appealed. Pending the ap-
peal, the premises subject to the lien were sold, and
the proceeds consumed by prior liens. The defendant
desired to prosecute the appeal still further, to recover
back his costs; but the court would not allow him to
do so. They say:—“The property, here, has been
disposed of by operation of law, without any default
on the part of the plaintiff. Should he obtain a judg-
ment on a verdict, he would be unable to get execu-
tion; nor could the court aid him, in recovering the
costs accruing subsequent to the appeal. As to any

 

1 M‘Laughlin v. Smith, 2 Wh. 122.
COSTS. 311

possible advantage, then, to the plaintiff, further pro-
ceedings would be altogether nugatory. On the other
hand, by requiring the plaintiff to go to trial, the more
opportunity is afforded to the defendant, of endea-
vouring to procure such a verdict as will entitle him
to the aid of the court, in recovering the costs paid on
the appeal and the subsequent costs. But there is no
reciprocity, even, as to the question of costs. Upon
the ground of public convenience, the time of the court
and a jury ought not to be occupied by the trial of an
issue whose direct and appropriate object has been
legitimately defeated. The issue was not intended to
try the mere collateral and minor question now pro-
posed; much less was it framed for the exclusive
benefit of only one of the parties. Were the court at,
liberty to weigh the conflicting equities, it would be
manifest, that there would be much more of hardship
upon a plaintiff, in compelling him to prepare for and
go through a trial, in such a case, than, upon a defen-
dant, in staying the proceedings. So far as the plain-
tiff advanced, he was sustained by the proper tribunal,
and he is obliged to lose the security to which he had
trusted. The defendant’s right to appeal rested upon
the payment of costs, as a condition. The due course
of the law, and not the Act of the plaintiff, has ren-
dered the appeal abortive. When the costs were paid,
there was a legal adjudication in regard tothem. An
appeal as to them was but incidental. It must share
the fate of the principal subject, upon which it was

21

dependent.

 

1] M. 250.
312 THE PERSONAL REMEDY.

CHAPTER XVIII.

£

OF THE PERSONAL REMEDY.

Ir will be remembered, that, in the earlier decisions,
the precise line of distinction, between the personal
remedy and the proceeding im vem was not very clearly
defined.

The Act of 1836 is more distinct and definite, in
these respects. It leaves no doubt with reference to
the character of the proceeding by claim, scire facias
and levari facias, directed solely against the realty,
and then expressly enacts as follows: “ Provided, that
nothing in this Act contained shall be construed to
impair, or otherwise affect the right of any person, to
whom any debt may be due for work done or mate-
rials furnished, to maintain any personal action against
the owner of the building, or any other person liable
therefor, to recover the amount of such debt.”

The Commissioners say, in regard to this section.
“Sect. 28 is new in terms. Although, perhaps, no
doubt has been, heretofore, expressed of the right of
mechanics and material men to bring personal actions
to recover the amount due to them, notwithstanding
the remedy given by the Act of 1806; yet, inasmuch
as an Act of the Legislature has declared, that, when
a remedy is provided by an Act of Assembly, nothing
THE PERSONAL REMEDY. 313

shall be done as at common law, it seemed proper to
reserve to these creditors, in express terms, a method
of proceeding, without which, they may, in some cases,
be unable to recover the amount due them.

While the decisions, to which we have heretofore
referred, appear to establish the doctrine, that a judg-
ment confessed by the contractor to the creditor, or
even a judgment obtained adversely, is not a bar to
the proceeding in rem, this section establishes, fully,
that the latter does not stand in the way of a recovery
against the person. The two remedies are cumula-
tive.

Where the owner, himself, employs the mechanics
and orders the materials, he is, of course, himself, per-
sonally liable. But if he builds through the agency
of an ordinary contractor, he is not responsible.

This is clearly settled by a late decision, in the Dis-
trict Court, for the city and county of Philadelphia,
in which Hare, J., in delivering the opinion of the
court, says:—“ This action was brought against the
personal representatives of the late Mrs. Fassit, to
recover for lumber, which was alleged to have been
sold to her during her life time. It appeared, at the
trial, that the lumber was not ordered by her, but by
the carpenter whom she employed to do the job, in
which it was used; and the only question was, as to
whether he had authority to make the purchase, in
her name, and bind her to pay for it. The jury were
instructed, that no liability could exist under these cir-
cumstances, unless on the ground of agency, which
might be, either express or implied, but could not be
Oo

314 THE PERSONAL REMEDY.

presumed, without evidence of its existence. They
were further told, that the employment of a contractor
or jobber to do a particular piece of work, does not
render him an agent, nor authorize him to pledge the
credit of his employer, even for the purchases neces-
sary for the completion of the job, and rather implies,
that payment to him would be a complete fulfilment
and satisfaction of the obligation incurred by the em-
ployer. But, they were, at the same time, reminded,
that an agency may be coupled with a contract; and
the question whether it was or not, in this instance,
was left to them, on the evidence. They found a
verdict for the defendant, which we think ought to
stand, in point both of law and of fact. The excep-
tion which has been made, in the case of Mechanics’
Liens, to the common law principle, that a contract
imposes no liability, save as between the parties con-
tracting, is quite wide enough, though confined to
the building itself, and not extending beyond six
months from the period at which the work is done,
unless duly and openly prosecuted. Disastrous con-
sequences would follow, were it to become the rule,
and were every man who bargains with another, to be
made answerable for all the obligations incurred by
the latter, in carrying out the bargain: not merely, in his
house but in his person; not only, for six months, but
for an indefinite period. It must be remembered, that
where such a liability exists, at all, it cannot be con-
fined to one purchase, nor to any one particular trans-
action, but, necessarily, extends to every act of the
agent, which is not, on its face, a plain departure from
THE PERSONAL REMEDY. 315

his agency. Thus, if Mrs. Fassit had been liable to
the plaintiff, in this case, she would have been equally
so to every lumber-merchant in town from whom the
carpenter whom she employed to shingle her house
thought fit to buy shingles, in her name, whether the
materials thus purchased actually came to her use or
not. Men do not suppose, nor is there any thing in
the course of business to inform them, that the em-
ployment of a workman engages their credit and
estate to make good his contracts; and their liability
should not be carried beyond the natural and legiti-
mate consequence of their acts, upon a mere pre-
sumption. The employment of the carpenter, to
shingle the house, was proved, in this case, clearly
enough; but his authority to act as agent was wholly
uncertain; and the jury but fulfilled their duty, in
refusing to find that, affirmatively, which was, at the
best, conjecture.”

A treatise upon the form and results of the personal
remedy, in ordinary cases, is, of course, not within the
design of this treatise. We have merely desired to
refer, in this volume, to certain peculiar relations to
each other of the two proceedings.
APPENDIX.

ACTS OF ASSEMBLY.

Act of 1st April, 1803, Pamph. L. 591.

(Repealed 17th March, 1806.)

An Act securing to mechanics and others payment for their
labour and materials in erecting any house or other building
within the city of Philadelphia, the district of Southwark,
and the township of the Northern Liberties.

Sect. 1. All and every dwelling-house or other building
hereafter constructed and erected within the city of Phila-
delphia, the district of Southwark, and the township of the
Northern Liberties, shall be subject to the payment of the
debts contracted by the owner or owners thereof, for or by
reason of any work done or materials found and provided by
any brickmaker, bricklayer, stonecutter, mason, lime merchant,
carpenter, painter and glazier, ironmonger, blacksmith, plas-
terer and lumber merchant, or any other person or persons
employed in furnishing materials for, or in the erecting and
constructing such house or other building, before any other
lien which originated subsequent to the commencement of the
said house or other building; but if such house or other build-
ing should not sell for a sum of money sufficient to pay all
the demands for work and materials, then, and in such case,
the same shall be averaged, and the said creditors paid an
equal sum or proportion in the dollar: Provided always, that
no such debt for work and materials shall remain a lien on
the said houses or other buildings longer than two years from
the commencement of the building of the same, unless an
318 APPENDIX.

action for the recovery thereof be instituted or the claim filed
within six months after performing the work or furnishing the
materials aforesaid, in the office of the prothonotary of the
county where such houses or other buildings lie.

Secr. 2. This Act shall be and continue in force for three
years from the passing thereof, and from thence to the end
of the next session of the general assembly, and no longer.

Act of 17th March, 1806, 4 Sm. L. 300.

An Act securing to mechanics and others payment for their
labour and materials in erecting any house or other build-
ing within the city and county of Philadelphia.

Secor. 1. All and every dwelling-house or other building
hereafter constructed and erected within the city and county
of Philadelphia shall be subject to the payment of the debts
contracted for or by reason of any work done or materials
found and provided by any brickmaker, bricklayer, stonecut-
ter, mason, lime merchant, carpenter, painter and glazier,
ironmonger, blacksmith, plasterer and lumber merchant, or
any other person or persons employed in furnishing mate-
rials for, or in the erecting and constructing such house or
other building, before any other lien which originated subse-
quent to the commencement of the said house or other build-
ing: but if such house or other building should not sell for a
sum of money suflicient to pay all the demands for work and
materials, then, and in such case, the same shall be averaged,
and each of the creditors paid a sum proportioned to their
several demands: Provided always, that no such debt for
work and materials shall remain a lien on the said houses or
other buildings longer than two years from the commence-
ment of the building thereof, unless an action for the reco-
very of the same be instituted or the claim filed, within six
months after performing the work or furnishing the materials,
in the office of the prothonotary of the county: And provided
also, that each and every person having received satisfaction
for his or their debt, for which a claim has been or shall be
filed or action brought as aforesaid, shall, at the request of
STATUTES. 319

any person interested in the building on which the same was
a lien, or in having the same lien removed, or of his, her or
their legal representatives, on payment of the costs of the
claim or action, and on tender of the costs of office, for en-
tering satisfaction within six days after such request made,
enter satisfaction of the claim in the office of the prothono-
tary of the court where such claim was or shall be filed or
such action brought, which shall, for ever thereafter, discharge,
defeat and release the same; and if such person, having re-
ceived satisfaction as aforesaid, by himself or his attorney,
shall not, within six days after request and payment of the
costs of the claim or action, and tender as aforesaid by him-
self or hig attorney duly authorized, enter satisfaction as
aforesaid, he, she or they, neglecting or refusing so to do, shall
forfeit and pay unto the party or parties aggrieved any sum
of money not exceeding one half of the debt for which the
claim was filed or action brought as aforesaid, to be sued for
and demanded by the person or persons damnified, in like
manner as other debts are now recoverable by law of this
Commonwealth.

Szcr. 2. That the Act, entitled “An Act securing to me-
chanics and others payment for their labour and materials, in
erecting any house or other building within the city of Phila-
delphia, the district of Southwark and the township of the
Northern Liberties,” passed the first day of April, one thou-
sand eight hundred and three, be and the same is hereby re-
pealed, excepting as it applies to liens cognizable by the said
recited Act previous to the passing of this Act, and to actions
now pending under the said recited Act. To such liens and
actions (and none other) it shall continue in force to the final
determination of the same.

Act of 28th March, 1808, 4 Sm. L. 528.

A supplement to an Act, entitled “An Act securing to me-
chanics and others payment for their labour and materials
in erecting any house or other building within the city and
county of Philadelphia.”

Srct. 1. The Act, entitled “An Act securing to mechanics
and others payment for their labour and materials in erect-
320 APPENDIX.

ing any house or other building within the city and county of
Philadelphia,” passed March seventeenth, one thousand eight
hundred and six, shall be, and the same is, hereby declared to
be in full force and operation in the borough of Erie, in the
county of Erie, the borough of Lancaster, in the county of
Lancaster, and the borough of Pittsburgh, in the county of
Allegheny; and mechanics and others, and the said boroughs,
respectively, shall have like remedy, under the said Act, for
securing the payment of their labour and materials, in erect-
ing any house or other building, within the said boroughs, re-
spectively.

Sxcr. 2. That in all cases of lien created by this Act, or
the Act to which this is a supplement, or the Act passed the
first day of April, anno Domini one thousand eight hundred
and three, entitled “An Act securing to mechanics and others
payment for their labour and materials in erecting any house
or other building within the city and county of Philadelphia,”
the person having a claim filed, agreeably to their provisions,
may, at his election, proceed to recover it, by personal action,
according to the nature of the demand against the debtor, his
executors or administrators, or by scire factas against the
debtor and owner of the building, or their executors or ad-
ministrators; and, where the proceeding is by setre facias,
the writ shall be served, in like manner as a summons, upon
the persons named therein, if they can be found within the
county in which the building is situate, or are resident therein,
or if they cannot be found, and are not resident in such
county, by fixing a copy of the writ upon the door of the
building against which the claim is filed, and, upon the return
of service and failure of the defendants to appear, the court
shall render judgment, as in case of a summons; but if they
or either of them appear, they may plead and make defence,
and the like proceedings shall be had as in personal actions
for the recovery of debts: Provided, that no judgment ren-
dered in any such seire factas shall warrant the issuing an
execution, except against the building or buildings upon which
the lien existed as aforesaid.
STATUTES. 321

Act of 21st January, 1813, Pamph. L. 38.

Ain Act extending an Act entitled “ An Act securing to me-
chanics and others payment for their labour and materials
in erecting any house or other building within the city and
county of Philadelphia,” to the borough of Beaver in the
county of Beaver.

Szcr. 1. The Act, entitled, “An Act securing to mechanics
and others payment for their labour and materials in erect-
ing any house or other building within the city and county
of Philadelphia,’ passed March the seventeenth, one thou-
sand eight hundred and six, with its supplement, passed the
twenty-eighth of March, one thousand eight hundred and eight,
shall be, and the same are hereby declared to be in full force
and operation in the borough of Beaver, in the county of
Beaver; and mechanics and others in the said borough, re-
spectively, shall have like remedy, under the said Acts, as
though they were herein enacted at full length.

Act of Ist March, 1815, 6 Sm. L. 250.

An Act extending an Act entitled “An Act securing to me-
chanics and others payment for their labour and materials
in erecting any house or other building within the city and
county of Philadelphia,” to the borough of Marietta, in the
county of Lancaster, and the borough of Harrisburg, in
the county of Dauphin.

Sect. 1. From and after the passage hereof, the Act en-
titled “An Act securing to mechanics and others payment
for their labour and materials in erecting any house or other
building within the city and county of Philadelphia,” passed
March the seventeenth, one thousand eight hundred and six,
with its supplement, passed the twenty-eighth day of March,
one thousand eight hundred and eight, shall be, and the same
are hereby declared to be in full force and operation in the
borough of Marietta, in the county of Lancaster, and the
borough of Harrisburg, in the county of Dauphin; and me-
chanics and others in the said boroughs, respectively, shall
have like remedy, under the said Acts, as though they were
herein enacted at full length.

21
322 APPENDIX.

Act of 22d March, 1817, 6 Sm. L. 445.

An Act extending the benefits of an Act entitled “An Act
securing to mechanics and others payment for their labour
and materials in erecting any house or other building in
the city and county of Philadelphia,” to the mechanics and
others of the borough of Reading, of the borough of West-
‘chester, and of the towns and villages adjacent to the city
of Pittsburg, and to the counties of Lancaster, Montgomery,
York, Dauphin, Franklin, and Lebanon.

Snot. 2. That the Act entitled “An Act securing to me-
chanics and others payment for their labour and materials in
erecting any house or other building within the city and
county of Philadelphia,’ passed March the seventeenth, one
thousand eight hundred and six, and the second section of a
supplement to the said Act, passed March the twenty-eighth,
one thousand eight hundred and eight, be, and the same are,
hereby declared to be in force in the borough of Reading, in
the county of Berks, in the borough of Westchester, in the
county of Chester, and in the towns of Alleghany, Birming-
ham, Sidneyville, Belinstown, Byardstown, Lawrenceville,
and Wilkinsburg, in the county of Alleghany, and all other
towns and villages that now are or may be laid out within
ten miles of the line of the city of Pittsburg, and in every
part of the counties of Lancaster, Montgomery, York, Dau-
phin, Franklin, and Lebanon; and mechanics and others in
said places shall have like remedy, under the said Act, and the
said second section of the supplement thereto, for securing
and recovering payment for their labour and materials for
erecting any house or other building within the said places.

Act of 24th March, 1818, 7 Sm. L. 119.

An Act extending the benefits of an Act entitled “An Act
securing to mechanics and others payment for their labour
and materials in erecting any house or other building in
the city and county of Philadelphia,” to the mechanics and
others of the counties of Cumberland, Northumberland, Co-
lumbia, and Beaver, and for other purposes.
STATUTES. 323

Secor. 1. That the Act, entitled “An Act securing to me-
chanics and others payment for their labour and materials in
erecting any house or other building within the city and
county of Philadelphia,’ passed March the seventeenth, one
thousand eight hundred and six, and the second section of a
supplement to the said Act, passed March the twenty-eighth,
one thousand eight hundred and eight, be and the same are
hereby declared to be in force in the counties of Cumberland,
Northumberland, Columbia, and Beaver; and mechanics and
others within the said counties shall have like remedy, under
the said Act, and the second section of the supplement thereto,
for securing and recovering payment for their labour and
materials for erecting any house or building within the said
counties.

Secr. 2. The several provisions of the Act of assembly of
this commonwealth, passed the seventeenth day of March, one
thousand eight hundred and six, entitled “An Act securing to
mechanics and others payment for their labour and materials
in erecting any house or other building within the city and
county of Philadelphia,” and of the second section of the
supplement thereto, passed the twenty-eighth day of March,
in the year one thousand eight hundred and eight, are hereby
extended to any person or persons furnishing curbstone for
the pavement of any house or building erected within the
meaning of the said Act; and the said person so furnishing
curbstone as aforesaid shall enjoy all the benefits and advan-
tages of the said Act, and the supplement thereto, as fully
and effectually as if they had been therein particularly men-
tioned.

Act of 7th March, 1821, Pamph. L. 82.

An Act extending an Act, entitled “An Act securing to me-
chanics and others payment for their labour and materials
in erecting any house or other building within the city and
county of Philadelphia,” to the counties of Delaware, Bucks,
Luzerne, and Mifflin.

Szcr. 1. From the passage hereof, the Act entitled “An

Act securing to mechanics and others payment for their labour

and materials in erecting any house or other building within
324 APPENDIX.

the city and county of Philadelphia,” passed March seven-
teenth, one thousand eight hundred and six, with its supple-
ment, passed the twenty-eighth day of March, one thousand
eight hundred and eight, shall be, and the same are, hereby
declared to be in full force and operation in the counties of
Delaware, Bucks, Luzerne, and Mifflin; and mechanics and
others in said counties shall have like remedy, under said
Acts, as though they were herein enacted at full length.

Act of 11th April, 1825, Pamph. L. 162.

An Act extending the benefits of an Act entitled “An Act
securing to mechanics and others payment for their labour
and materials in erecting any house or other building in
the city and county of Philadelphia,” to the mechanics and
others of the counties of Schuylkill, Berks, Erie, Somerset,
and Venango, and for other purposes.

Sect. 1. That the Act entitled “An Act securing to me-
chanics and others payment for their labour and materials in
erecting any house or other building within the city and
county of Philadelphia,” passed March the seventeenth, one
thousand eight hundred and six, and the second section of a
supplement to the said Act, passed March the twenty-eighth,
one thousand eight hundred and eight, be, and the same are
hereby declared to be, in force in the counties of Schuylkill,
Berks, Erie, Somerset, and Venango; and mechanics and
others in the said counties shall have like remedy, under the
said Act, and the second section of the supplement thereto,
for securing and recovering payment for their labour and
materials for erecting any house or other building within the
said counties.

Act of 10th April, 1826, Pamph. L. 345.

An Act extending the benefits of an Act entitled “An Act
securing to mechanics and others payment for their labour
and materials in erecting any house or other building in
the city and county of Philadelphia,” to the mechanics of
the counties of Crawford, Lycoming, Centre, Clearfield, and
Indiana.
STATUTES. 325

Szct. 1. That the Act entitled “An Act securing to me-
chanics and others payment for their labour and materials in
erecting any house or other building within the city and
county of Philadelphia,” passed March seventeenth, one thou-
sand eight hundred and six, and the second section of the
supplement to the said Act, passed March twenty-eighth, one
thousand eight hundred and eight, be, and the same are
hereby declared to be, in force in the counties of Crawford, .
Lycoming, Centre, Clearfield, and Indiana; and the mechanics
and others in said counties shall have like remedy, under the
said Act, and the said second section of the supplement thereto,
for securing and recovering payment for their labour and ma-
terials for erecting any house or other building within said
counties. ;

Act of 16th April, 1827, Pamph. Laws, 446.

A supplement to the Act entitled “An Act securing to me-
chanics and others payment for their labour and mate-
rials in erecting any house or other building within the city
and county of Philadelphia,” and for other purposes.

Sect. 1. From the passage hereof the Act entitled “An Act
securing to mechanics and others payment for their labour and
materials in erecting any house or other building within the
city and county of Philadelphia,” passed the seventeenth of*
Mareh, one thousand eight hundred and six, with its supple-
ment, passed the twenty-eighth day of March, one thousand
eight hundred and eight, shall be, and the same is hereby de-
clared to be, in full force and operation in the county of
Union; and mechanics and others in said county shall have
like remedy, under said Acts, as though they were herein
enacted at full length.

Act of 4th February, 1830, Pamph. L. 37,

An Act extending an Act entitled “An Act securing to me-
chanics and others payment for their labour and materials
in erecting any house or other building within the etty and
county of Philadelphia,” to the borough of Easton in North-
ampton county.
326 APPENDIX.

Scr. 1. From and after the passage of this Act, the Act en-
titled “An Act securing to mechanics and others payment for
their labour and material in erecting any house or other build-
ing within the city and county of Philadelphia,” passed the
seventeenth day of March, one thousand eight hundred and
six, with its supplement, passed the twenty-eighth day of
March, one thousand eight hundred and eight, shall be, and
the same are hereby declared to be, in full force and opera-
tion in the borough of Easton, in the county of Northampton;
and mechanics and others in the said borough shall have like
remedy, under said Acts, as though they were herein enacted
at full length.

Act of 28th January, 1831, Pamph. L. 36.

An Act extending the provisions of the lien laws to the plumb-
ers of the city and county of Philadelphia.

Sect. 1. From and after the passing of this Act the several
provisions of the Act of the seventeenth of March, one thou-
sand eight hundred and six, entitled “An Act securing to
mechanics and others payment for their labour and materials
in erecting any house or other building within the city and
county of Philadelphia,” and the supplements thereto, be and
they are hereby extended to plumbers, for all work by them

* done, or materials by them found and provided, for or in the
erecting and constructing of all and every dwelling-house or
other building, and the hydrants and pipes appurtenant
thereto, hereafter constructed and erected within the city and
county of Philadelphia.

Act of 30th March, 1831, Pamph. L. 239.

An Act extending an Act entitled “An Act securing to me-
chanics and others payment for their labour and materials
in erecting any house or other building within the city and
county of Philadelphia,” to the counties of Bedford, Cam-
bria, Tioga, and Armstrong.

Sect. 1. From and after the passage of this Act the Act
entitled “An Act securing to mechanics and others payment
for their labour and materials in erecting any house or other
STATUTES. 327

building within the city and county of Philadelphia,” passed
the seventeenth day of March, one thousand eight hundred
and six, with the supplement thereto, passed the twenty-eighth
day of March, one thousand eight hundred and eight, shall be,
and the same are hereby declared to be, in full force and
operation in the counties of Bedford, Cambria, Tioga, and
Armstrong; and mechanics and others in the said counties of
Bedford, Cambria, Tioga, and Armstrong shall have like re-
medy, under the said Acts, as though they were herein enacted
at full length.

Act of 30th March, 1831, Pamph. L. 242.

An Act relative to the liens of mechanics and others.

Sxct. 1. From and after the passage of this Act all claims
filed or entered in pursuance of the Act to which this is a
further supplement, within six months after performing the
work or furnishing the materials, shall continue to bind the
buildings or dwelling-houses against which the same are en-
tered, for the term of five years from the day of filing the
same; and no claim, so as aforesaid filed, shall bind any
building or dwelling-house for a longer period than five years
from the day of filing the same, unless, within that time, the
person who has filed the same, his executors, administrators
or assigns, shall issue a scire facias thereon.

Sect. 2. In all cases where any claim or claims has or
have been filed, or shall hereafter be filed, the legal or equi-
table owner or owners of the buildings or dwelling-houses
bound thereby, or any person interested, may apply to the
court, on the proper docket of which the same is or are filed,
by petition, setting forth the facts; which said court shall
order an issue to be formed and tried, to ascertain if any, and
what sum is due upon such claim or claims, and shall have
power to make orders in relation to such issue, and the mode
of trying the same, and the costs thereof, as fully as any court
of equity might or could do in relation to any issue ordered
by such courts of equity.

Sscr. 3. In all cases where the amount of any claim has
been paid and satisfied, and no satisfaction entered on the
record thereof, the legal or equitable owner or owners of
328 APPENDIX.

the building or dwelling-house or dwelling-houses, bound by
the same, may, in order to have satisfaction entered on the
record, proceed against the person filing such claim, his ex-
ecutors, administrators and assigns, in the same manner, and
shall haye the rights and remedies provided for defendants
and purchasers of real property, by the fourteenth section of
the Act of assembly of this commonwealth, entitled “An Act
to establish the judicial courts of this commonwealth, in con-
formity to the alterations and amendments in the constitution,”
passed the thirteenth day of April, one thousand seven hun-
dred and ninety-one.

And whereas, it sometimes happens that several houses
and other buildings, adjoining each other, are erected by the
same owner, so that it is impossible for the person who has
found and provided materials for the same to specify in his
claim filed the particular house or other building for which
the several items of his demand were so found and provided:
And whereas, doubts have arisen as to the true construction
in such cases of the laws of this Commonwealth: Therefore,

Sect. 4. It shall and may be lawful, in every such case,
for the person so finding and providing materials, as afore-
said, for two or more adjoining houses, and other buildings
built by the same person, owner of the same, and debtor for
the said materials, to file, with his claim thereof, an appor-
tionment of the amount of the same among the said houses
and other buildings: and each of the said houses and other
buildings shall be subject to the payment of its said appor-
tioned share of the debt contracted, in the same manner as is
provided by law in other cases.

Act of 7th May, 1832, Pamph. L. 539.

An Act extending “An Act securing to mechanics and others
payment for their labour and materials in erecting any
house or other building within the city and county of Phila-
delphia,” to the counties of Chester, Butler and Perry.
Suct. 1. From and after the passage of this Act the Act en-

titled “An Act securing to mechanics and others payment for

their labour and materials in erecting any house or other build-
ing within the city and county of Philadelphia,”’ passed the se-
STATUTES. 329

venteenth day of March, one thousand eight hundred and six,
with the supplements thereto, passed the twenty-cighth day
of March, one thousand eight hundred and eight, and the thir-
tieth of March, one thousand eight hundred and thirty-one,
shall be, and the same are hereby declared to be, in full force
and operation in the counties of Chester (Butler) and Perry;
and mechanics and others in the said counties of Chester, But-
ler and Perry shall have like remedy, under the said Acts as
though they were herein enacted at full length.

Act of 11th April, 1835, Pamph. L. 190.

An Act extending the mechanics’ lien law to the counties of
Warren and Juniata, and for other purposes.

Scr. 1. The provisions of the Act passed on the seventeenth
of March, one thousand eight hundred and six, entitled ‘An
Act securing to mechanics and others payment for their labour
and materials in erecting any house or other building within
the city and county of Philadelphia,” and of the supplement
thereto, passed on the twenty-eighth of March, one thousand
eight hundred and eight, shall be, and the same are hereby
extended to and declared to be, in full force and operation in
the counties of Warren and Juniata; and mechanics and others
in the said counties of Warren and Juniata shall have like re-
medy, under the said Acts, as though they were herein enacted
at full length, and applied to the said county of Warren.

Act of 13th April, 1835, Pamph. L. 213.

An Aet to extend the laws relating to the mechanics’ liens to
the counties of Washington, Huntingdon, Mercer, Beaver,
and Alleghany.

Sect. 1. From and after the passage of this Act, the Act
entitled “An Act securing to mechanics and others payment
for their labour and materials in erecting any house or other
building within the city and county of Philadelphia,” passed
the seventeenth of March, one thousand eight hundred and
six, and the supplements thereto, passed the twenty-eighth of
March, one thousand eight hundred and eight, and the thirtieth
of March, one thousand eight hundred and thirty-one, shall be
330 APPENDIX.

and the same are hereby extended to and in full force and
operation in the counties of Washington, Huntingdon, Mercer,
Beaver, and Alleghany; and mechanics and others shall have
like remedies in the said counties, under the said Acts, as though
the provisions thereof had been herein enacted at full length.

Act of 1st April, 1836, Pamph. L. 400.

An Act to authorize the opening and extension of Robinson
and Leacock streets, and Rebecca street, in the borough of
Alleghany, and the opening of a sixty feet street between
out lots numbered thirty-nine and forty, in said borough,
and for other purposes.

Sect. 6. The Act, entitled “An Act securing to mechanics
and others payment for their labour and materials in erecting
any house or building within the city and county of Philadel-
phia,” passed the seventeenth of March, one thousand eight
hundred and six, and the supplements thereto, passed the
twenty-eighth of March, one thousand eight hundred and
eight, and the thirtieth of March, one thousand eight hundred
and thirty-one, be and they are hereby extended to Susque-
hannah county.

Act of 16th June, 1836, Pamph. L. 695.1
An Act relating to the lien of mechanics and others upon
buildings.
Sxcr. 1. Every building erected within the several coun-
ties of this commonwealth to which the Act entitled “An Act

 

1 Remarks upon the bill entitled, “ An Act relating to the Lien of Mechanics
and others upon Buildings. Reported 4th January, 1836.

The Acts of Assembly giving a specific lien on buildings for work done
and materials furnished for them, established a system for which no pre-
cedent existed in our own or the English Law. The only previous in-
stance of a character at all similar, is to be found in the act of 1784, re-
lating to persons employed in building and repairing vessels, the subject
matter of which, however, differs, in some obvious points, from that of the
Act of 1806, although the phraseology of the former has been followed in
some passages. It is not surprising, therefore, that defects have been
discovered in the Acts in question, nor that great difficulties have been
STATUTES. 331

securing to mechanics and others payment for their labour
and materials in erecting any house or other building within
the city and county of Philadelphia,” passed the seventeenth
of March, one thousand eight hundred and six, and the several
supplements thereto, now extends, shall be subject to a lien
for the payment of all debts contracted for work done or ma-
terials furnished for or about the erection or construction of
the same.

Secor. 2. The lien of such debt shall extend to the ground
covered by such building, and to so much other ground im-
mediately adjacent thereto, and belonging in like manner to

 

experienced by the courts and the bar, in giving effect to the design of the
legislature.

The policy of the system has been, often and seriously, questioned, and
doubts have been, frequently, expressed, whether, upon the whole, it works
well even for those for whose benefit it was enacted, since it tends to clog
the transfer of real estate, by the risk in which it involves purchasers and
mortgagees. The example set by this state, however, has been followed
in some others, and recently by Congress, in relation to the District of
Columbia, -by the adoption, in the same words, of the Act of 1806 and
1808. Public opinion also seems favourable to a continuance of the sys-
tem, since the lien which, by the Act of 1806, was confined to the city and
county of Philadelphia, has, by successive Acts, been extended to thirty-
nine counties, besides several boroughs or towns.

It is deemed best, therefore, to retain the principal features of the ex-
isting law, with such modifications, however, as may tend to remove the
dificulties alluded to, and to render it more consonant with other parts of
our code.

Scr. I. The first section makes the provision general. It has already
been extended over the principal part of the state, rural as well as urban,
and we see no reason why it should not be general. If it should not be
acceptable, however, in any country or place, a section may be added ex-
cepting such place. We have in this section omitted the enumeration of
particular mechanics and material men, since the general words of the Act
of 1806 seemed to render it necessary.

Sect. II. The second section is new in terms, and has been introduced,
for the purpose of removing a difficulty which arose very early after the
passage of the Act of 1806. That Act says, “every dwelling-house or other
building shall be subject,” &c. These words give no lien to the mechanics,
&c., upon the ground or land occupied by a building, or adjacent to it.
The rule of the common law is, that the ownership of the soil carries with
it every thing erected upon it, except under special circumstances; and it
has never been supposed that the reverse of this, viz. that a right of lien
332 APPENDIX.

the owner of such building, as may be necessary for the or-
dinary and useful purposes of such building, the quantity
and boundaries whereof shall be determined as follows:

 

upon a house affected the ownership of the soil, could be sustained, upon
any sound principle. It is plain, however, that a lien upon a building
merely, without any ownership in, or control over the soil which it covered,
would be of little avail to the mechanic; and even if the ground under the
building were supposed to pass with it, the value of the building would be
trifling, in most situations, if deprived of the use of the ground immediately
adjacent to it. Other creditors, however, holding mortgages or judgments,
disputed the right of lien creditors, under this law, to more than the mere
building, or at all events to more than the ground actually occupied by it.
The construction given by the courts of Philadelphia to this provision, was
perhaps not free from objection, but it certainly tended to give efficacy to
these liens, which it was the design of the legislature to encourage. They
held that the lien attached, not only to the building and the ground occu-
pied by it, but to so much of the adjacent ground as was necessary and
proper for the ordinary purposes of the building. The practice of many
years has been in accordance with this view of the law. A recently re-
ported decision, however, of the Supreme Court at Pittsburgh (M‘Donald
v. Lindall, reported in 3 Rawle, 492,) has tended to throw some doubt upon
the correctness of the present construction of the Act; and at all events, the
uncertainty in which, by the practice, the extent of the lien is left, seem to
require some definite legislative provision. It is believed, that it was the in-
tention of the legislature to give the mechanics and material men the benefit
of a lien upon a building, with all the appurtenances that confer a value upon
it, in the absence of any express stipulation on the subject. But how are
these appurtenances to be ascertained? Certainly not by any general rule
to be laid down in the first instance. A dwelling-house in a city or borough,
for example, has usually attached to it a lot of ground of sufficient depth
for the usual outbuildings, and, at all events, for the benefit of light and air.
A barn in the country, in the middle of a field, would be of little value, if
there were no right to approach it. Almost every species of building has
some appurtenances, which vary with the different kinds of building. If,
then, it can be conceded, that this lien extends to the appurtenances of a
building, the difficulty will still remain of deciding upon the extent thereof.
It would be, obviously, wrong to leave it to the lien creditor to define the ex-
tent of his lien, for himself, on filing his claim. Nor is there, at present,
any authority in the court to interfere, before the proceeds of the sheriff's
sale are brought in. They then endeavour to do justice between the dif:
ferent species of incumbrances, by apportioning the fund among them, ac-
cording to what they suppose to be the extent of their respective rights.
But if, in law, the lien of the mechanic is limited, as it must be somewhere,
or to some extent of ground, the sheriff, upon an execution on his claim,
STATUTES. 333

_ Secr. 8. It shall be the duty of the prothonotary of the
Court of Common Pleas of every county to which the provi-
sions of this Act extend, and the prothonotary of the District
Court of the city and county of Philadelphia, respectively, and
of the city and county of Lancaster, the District Court of Al-
leghany county, to procure and keep a book or docket, which
shall be called the “ Mechanics’ Lien Docket,” in which he
shall cause to be entered and recorded all descriptions or de-
signations of lots or pieces of ground, as hereinafter men-
tioned, and all claims that may be filed by virtue of this Act,
together with the day of filing the same; and he shall cause
the names, as well of the owner of the lot or piece of ground

 

can sell no more than to that extent, and the purchaser will certainly be in
doubt about the extent of his purchase.

In the bill now submitted, an effort has been made to obviate the diffi-
culties alluded to, which at least, as respects some of those mentioned,
will, we think, be found successful. It is proposed, in the third section,
to provide that the prothonotary shall keep a docket, in which all the pro-
ceedings relating to mechanics’ liens shall be contained. The object is,
by concentrating all that relates to particular buildings, to facilitate in-
quiry and notice. In the fourth section, we propose that the owner of a
piece of ground, who may be about to contract for the erection of a build-
ing thereon, may, before the commencement thereof, designate the boun-
daries of the lot, so as to fix the amount which shall be considered as ap-
purtenant to the building. To this, we presume, there can be [no] objec-
tion, as it will take place before any right accrues to the mechanic, and
is to be entered in the book we have mentioned. The fifth, sixth and
seventh sections, provide for the case of the owner having failed to make
such designation, and authorize the court, on the application of any per-
son interested, to appoint commissioners to examine and report on the
proper extent of these appurtenances, and provide for the due execution
of their duties by the commissioners. In the eighth section, power is
given to the court to stay execution upon any judgment or other proceed-
ing, until the extent of the boundaries shall be designated by commission-
ers as aforesaid, and the ninth section recognises the power at present ex.
ercised by the courts, of apportioning the proceeds of a sheriff’s sale of
real estate according to the extent of the several liens.

These sections have been framed with a view to the just rights of the
various parties interested, as well judgment creditors and mortgagees ag
the builders and owners of the ground, and will be found, we think, to
provide at least some improvement on the present law, by relieving the
public and the parties from the frequent and protracted litigation to which
the prevailing uncertainty respecting the extent of the lien gives rise.
*

334 APPENDIX. ,

as of the contractor, architect or builder, if such be named,
and of the person claiming any lien under this Act, to be alpha-
betically indexed therein.

Srcr. 4. It shall be lawful for the owner of any lot or
piece of ground, who may be desirous of erecting, or of con-
tracting with any other person for the erection of any build-
ing as aforesaid, to declare or define in writing the bounda-
ries of the lot or curtilage appurtenant to such building,
previously to the commencement thereof, and cause the same
to be entered in a book aforesaid; and such designation of
boundaries, so made and entered upon record, shall be obli-
gatory upon all persons concerned.

Sect. 5. In default of such designation of boundaries
previously to the commencement of any building, it shall be
lawful for the owner of such lot or piece of ground, or for
any person having a lien on the same, by mortgage, judg-
ment or otherwise, or entitled to a lien by virtue of this Act,
to apply by petition, in writing, to the proper court, to ap-
point competent and skilful persons as commissioners to
designate the boundaries aforesaid.

Sect. 6. It shall be the duty of the court to whom appli-
cation shall be made as aforesaid, after reasonable notice
given to all parties interested, to appoint such competent
persons commissioners as aforesaid, as all the parties inte-
rested shall nominate; but if the parties cannot agree upon a
nomination, it shall be lawful for the court to appoint such
competent persons, for that purpose, as they shall think proper.

Secr. 7. It shall be the duty of the commissioners so
appointed to examine the building, or place at which such
building is being erected, and to make a report to the court,
in pursuance of the order to them directed; and, in such
report, they shall sufficiently designate and describe, by metes
and bounds, with their courses and distances, and by a draft,
if necessary, the limits and extent of ground necessary for
the convenient use of such building, for the purposes for
which it is designed; and such report shall be entered at
length upon the record book aforesaid, and, if approved by the
court, shall be conclusive upon all persons concerned.

Scr. 8. If execution shall be awarded for the levy and
STATUTES. 335

sale of any lot or piece of ground, upon which a building
shall be erected as aforesaid, before the boundaries of the lot
or curtilage which ought to be appurtenant thereto shall be
designated, it shall be lawful for the court, upon application,
to stay such execution until such designation shall be made;
and, thereupon, order the sale to proceed, in such manner, and
for such part or parts, and in such parcels, as shall be most
convenient for the administration of equity among all persons
interested.

Sect. 9. If the building against which any claim shall be
filed as aforesaid, or any part of the ground adjacent thereto,
shall be sold by virtue of an execution, upon any mortgage
or judgment, before the extent of the lien of the claimant
shall be ascertained as aforesaid, the court out of which such
execution shall have issued shall have power to determine the
rights of the respective parties, and the apportionment or ap-
propriation of all liens as aforesaid; and for that purpose,
may appoint an auditor to inquire into and report the facts,
and may decree distribution of the proceeds accordingly, or,
upon the application of any of the parties, may direct an issue
for the determination of disputed facts.

Sect. 10. The lien for work and materials as aforesaid
shall be preferred to every other lien or incumbrance which
attached upon such building and ground, or either of them,
subsequently to the commencement of such building.!

Sect. 11. Every person entitled to such lien shall file a
claim or statement of his demand in the office of the protho-
notary of the Court of Common Pleas of the county in which
the building may be situate.

Ssct. 12. Every claim as aforesaid must set forth:?

First, The names of the party claimant, and of the owner
or reputed owner of the building, and also of the contractor,

1 Grcr, X. Is taken from the first section of the act of 1806.

2 Sror. XIIIL* In the thirteenth section, it is proposed to declare certain
points to be essential to the validity of a claim. The object of filing a
claim, is to give notice to third ‘persons of the names of the parties, the

' * The eleventh section of the report of the Commissioners was omitted by the
legislature. The remarks to section thirteen refer to section twelve of the law, and
so on.
e

336 APPENDIX.

architect or builder, where the contract of the claimant was
made with such contractor, architect or builder.

Second, The amount or sum claimed to be due, and the
nature or kind of the work done, or the kind and amount of
materials furnished, and the time when the materials were
furnished or the work was done, as the case may be.

Third, The locality of the building, and the size and number
of the stories of the same, or such other matters of description
as shall be sufficient to identify the same.

Sxcr. 13.1 In every case in which one claim for materials
shall be filed by the person preferring the same against two
or more buildings owned by the same person, the person filing
such joint claim shall, at the same time, designate the amount
which he claims to be due to him on each of such buildings,

otherwise such claim shall be postponed to other lien creditors;
and the lien of such claimant shall not extend beyond the
amount so designated, as against other creditors, having liens
by judgment, mortgage or otherwise.

Secr. 14.2 Every such debt shall be a lien, as aforesaid,
until the expiration of six months after the work shall have

 

amount alleged to be due, and the property upon which the lien is claimed.
Unless these are distinctly stated, it is obvious that the notice is of little
value. Many claims, however, have been filed, deficient in these essentials,
probably from want of sufficient precision in the law. It is believed that
the directions of this section can be followed by the lien creditors without
difficulty, and that it will tend to facilitate their entering claims without
professional assistance.

? Srcr. XIV. Alters somewhat the provision of section four, of the act of
1831, the preamble to which explains the necessity of the provision. The
last part of that section, which says that the several buildings shall be
liable to the apportionment made by the claimant, has been omitted be-
cause it seems objectionable that the party should have a right conclusively
to fix the liability of property which may be in the hands of a third person;
though it is proper that, having made an apportionment, he should be
bound by it as against other creditors or purchasers. It is believed to be
best to leave the correctness of the apportionment to be determined by the
court, or a jury, if the parties interested should dispute it.

2 Sect. XV. In this section the provision of the first section of the act
of 1806, is materially altered. The original has given rise to great doubt
and litigation; besides which, it is believed to operate injuriously upon
the owners of property and incumbrancers, by the uncertainty in which
it keeps them for an unnecessarily long period. ‘The commencement of

kw
STATUTES. 337

been finished or materials furnished, although no claim shall
have been filed therefor; but such lien shall not continue
longer than the said period of six months, unless a claim be
filed, as aforesaid, at, or before the expiration of the same
period.

Sect. 15. The proceedings to recover the amount of any
claim, as aforesaid, shall be by a writ of secre facias, in the
following form: viz.

County, ss.

The commonwealth of Pennsylvania to the sheriff of said

county, greeting:

Whereas hath filed a claim in our
(court) for the county of » against
for the sum of , for (work done or materials fur-

nished, as the case may be) to (or for) a certain building:
to wit (describing it as in the claim:) And whereas, it is
alleged that the said sum still remains due and unpaid to the
said ; how we command you that you make
known to the said , and to all such persons as
may hold or occupy the said building, that they be and ap-
pear before the judges of our said court at a court of
, to be held at , on the of
next, to show, if any thing they know or have to say, why
the said sum of should not be levied of the said
building, to the use of the said , according to
the form and effect of the Act of Assembly in such case made
and provided, if to them it shall séem expedient, and have
you then and there this writ. fe
Witness.
Sect. 16. Provided, That no such sere facias shall in any

 

the building,” from which the two years begin to run, does not afford that
general rule which is desirable; some few buildings requiring more than
two years to finish, while others are completed in much less time. Be-
sides, it is in most instances very difficult for third persons to ascertain
when the particular work was performed, or materials furnished, from
which the six months run: consequently, the risk of purchasers of real
estate is greatly augmented. The limitation in the section now suggested,
seems more simple and less likely to embarrass. As long as the building
is in progress, sufficient notice is given, and the period of six months after
it is finished, seems to give ample opportunity for the filing of the lien.

22
338 APPENDIX.

case be issued within fifteen days previous to the return day
of the next term.

Srct. 17.1 The writ of scire facias aforesaid shall be served
in the same manner as a summons, upon the defendant therein
named, if he can be found within the county, and a copy
thereof shall also be left with some person residing in the
building, if occupied as a place of residence; but, if not so
occupied, it shall be the duty of the sheriff to affix a copy of
such writ upon the door or other front part of such building.

Sect. 18. It shall, also, be the duty of the sheriff to whom
any such writ of sedre facias may be directed, to give notice
thereof to all other claimants and persons interested, by ad-
vertisements in two daily newspapers published in his county,
as the case may be, at least ten days before the return day of
the writ, in each county where such papers are published; but,
when daily papers are not so published, then in two weekly
newspapers, if so many are published therein, or if but one
weekly newspaper is published in such county, in such news-
paper, or if no paper is published in such county, in a paper

 

1 Secor. XVII. to XIX. These sections have been introduced for the pur-
pose of giving some additional notice to third persons interested, of the
proceedings upon a claim. The provisions of the existing law seem to be
sufficient, as respects the owner of the property with whom, or on whose
account, the contract was made; but they are strikingly deficient with re-
spect to third persons, such as purchasers, mortgagees, judgment ereditors,
and other mechanics and material men, since they provide no kind of notice
to them, while they may be greatly prejudiced by the proceeding. Fre-
quently the owner of property is insolvent, and indisposed to contest the
amount of a claim. Sometimes he may collude with the claimant, and a
judgment may thus be obtained on a scire facias to a much greater amount
than the justice of the case would warrant; whereas, if the lien creditors
had had notice, they might have come in and disputed the amount.

But how is notice to be given to them? Ought they to be made parties
to the suit, as is required in chancery in England, or served with a rule to
appear and take defence if they think proper? The objection to this is,
that it imposes on the claimant great expense and inconvenience in making
search for all these persons, whom it will be necessary to trace through the
various offices, especially in the case of mortgages, which must be searched
for against all persons who have previously held the property; and even
after all pains taken, some persons interested might remain undiscovered.
The expense, too, of serving writs or notices upon those who were ascer-
STATUTES. 339

published nearest thereto, for four successive weeks before
the return day thereof.’

Sect. 19. Upon the return of such writ, it shall be lawful
for any other person, having filed a claim as aforesaid, to
cause to be entered on the record of the same suit, a sugges-
tion, setting forth the amount and nature of his demand, and
thereupon he may have a rule upon the defendant to appear
and plead thereto, as in other actions.

Sect. 20. If the defendant shall appear and plead to such
suggestion, and issue either in fact or law be joined upon any
plea, such particular issue shall be tried and determined as in
other cases: if the defendant shall not plead to such sugges-
tion, after due notice, judgment shall be entered for the clai-
mant filing the same, and the amount of the claim shall be
ascertained as in other cases.

Sxcr. 21. The execution for every such judgment shall be
by a writ of levard facias, in the following form:

County, ss.

The commonwealth of Pennsylvania to the sheriff of said
county, greeting:

We command you, that without any other writ from us, of
the following described building and lot of ground of A. B.,
to wit (describing the same according to the record,) in your
bailiwick, you cause to be levied, as well a certain debt of

» which C. D., lately in our Court of Common Pleas

 

tained to be interested, would be very great. The least expensive, and in
some respects, the most certain mode, seems to be that of public advertise-
ment, which is adopted in many other cases. The provision which we
have added in the eighteenth section, that a copy of the sctre facias shall
in all cases be left at the building, or affixed thereto, will come in aid of
the other means of notice. To give an opportunity of advertising for a
sufficient length of time, it is necessary that there should be an interval of
at least fifteen days between the issuing and return of the writ, which is
the object of the seventeenth section.

Secr. XX. and XXI. These sections are intended to provide a method
by which other lien creditors may come in and avail themselves of the
opportunity of the suit commenced, without the delay and expense of is-
suing successive writs of scire Jfacias. This mode of proceeding is not
without precedent even in our own jurisprudence.

1 This section is repealed by Act of March 30, 1842.
340 APPENDIX.

for the county aforesaid, by the consideration of the said
court, recovered of the said A. B., to be levied of the suid
building and lot of ground, as also the interest thereon from
the day of , A. D. ; also, the further
sum of , which E. F. lately, in our said court for the
county aforesaid, by the consideration thereof, recovered of the
said A. B. to be levied of the said building and lot of ground,

as also the interest thereon from the day of , A. D.
, amounting in the whole to the sum of , and
also the sum of , for the costs which accrued thereon,

according to the form and effect of an Act of Assembly of the
Commonwealth of Pennsylvania in such case made and pro-
vided, and have you these moneys before our judges at

, at our County Court of Common Pleas, there to be
held on the day of next, to render unto the
said C. D. for his debt, interest and costs aforesaid, and have
you then there this writ, &c.

Sect. 22.1 Provided, That if the proceeds of such building
and ground, as aforesaid, shall not be sufficient to pay the full
amount of all debts due, as aforesaid, for work done and ma-
terials furnished, after deducting therefrom any prior liens
upon the same, then such debts shall be averaged, and the
creditors aforesaid shall be paid in proportion to their respec-
tive demands.

Sect. 23. In every case in which any claim shall be filed
against any building as aforesaid, and no scire facias shall
have issued thereon, it shall be lawful for the owner of such
building, or any person interested therein, to apply by peti-
tion to the court in which such claim shall be filed, setting
forth the facts, whereupon, such court may grant a rule upon

 

1 Secr. XXII. We suggest, in this section, that execution of a judgment
in this proceeding shall be by writ of levari facias instead of the fier?
JSacias, inquisition, and venditiont exponas, which are now necessary. The
expense of holding an inquisition is so great, that we think it ought not to
be encountered in the case of a mechanic’s lien, which is generally of
small amount. The delay, too, is sometimes very inconvenient.

It will be seen that the sheriff is directed by this writ to levy, as well
for the debts of the other lien creditors, as of the particular plaintiff.

Secr, XXIII Is taken from the first section of the Act of 1806.
STATUTES. 341

the party claimant, and others interested, to appear in court
at a time to be fixed for such purpose, and on the return of
such rule may proceed in like manner as if a scire factas had
been issued by such claimant, and had been duly served and
returned.

Scr. 24.1 The lien of every such debt, for which a claim
shall have been filed as aforesaid, shall expire at the end of
five years from the day on which such claim shall have been
filed, unless the same shall be revived by scire facias, in the
manner provided by law in the case of judgments, in which
case, such lien shall continue in like manner, for another
period of five years, and so from one such period to another,
unless such lien be satisfied, or the same be extinguished by
a sheriff's sale, or otherwise, according to law.

Sect. 25. In every case in which the amount of any claim
as aforesaid shall be paid or otherwise satisfied, it shall be
the duty of the claimant, or his legal representative, at the
request of the owner of the building, or of any other person
interested therein, and on payment of the costs, to enter satis-
faction on the record of such claim, in the office of the pro-
thonotary of the court in which such claim shall have been
entered, which shall for ever thereafter discharge and release
the same.

Szcr. 26.? If any person who shall have received satisfac-
tion as aforesaid, shall neglect or refuse to enter satisfaction
of such claim, as aforesaid, within sixty days after request,
and payment of the costs of suit, as aforesaid, he shall forfeit
and pay to the party aggrieved any sum not exceeding one
half of the amount of such claim, to be recovered as debts of
a like amount are recoverable.

Secor. 27. Provided, That nothing in this Act contained
shall be construed to impair, or otherwise affect the right of
any person to whom any debt may be due for work done, or
materials furnished, to maintain any personal action against
the owner of the building, or any other person liable therefor,
to recover the amount of such debt: Provided further, That

 

? Secr. XXIV. From the second section of the Act of March 30th, 1831.
? Secor. XXVI. and XXVII. From the Acts of 1806 and 1831,
842 APPENDIX.

nothing in this act contained shall be construed to affect the
relative jurisdiction of the Court of Common Pleas, and the
District Court of the city and county of Philadelphia, which
shall remain as heretofore.’

Sect. 28. The several provisions of this act are hereby de-
clared to be extended to the county of Lehigh.

Sxct. 29. The lien hereinbefore given is hereby declared
to extend to plumbers, and to persons furnishing curbstone
for the pavement of any building as aforesaid, within the city
and county of Philadelphia.

Sect. 30. This Act shall take effect from and after the
first day of September next, and so much of any law as is
altered by this Act is hereby repealed from that period.

Act of 4th April, 1837, Pamph. L. 298.

An Act further to incorporate the district of the Northern
Liberties, in the county of Philadelphia, and for other pur-
poses.

Sect. 11. That such provisions of the several Acts of
Assembly of this Commonwealth which have been altered or
supplied by the following Acts, viz., “An Act relating to the
commencement of actions; “An Act relating to reference
and arbitration;’ “An Act relating to assignees for the
benefit of creditors and other trustees;” “An Act relating to
the attachment of vessels; “An Act relative to the organi-
zation of courts of justice;’ “An Act relative to bonds, with
penalties and official bonds;” “An Act relating to counties

 

1Srcr. XXVIII. Is new in terms. Although perhaps no doubt has been
heretofore expressed of the right of mechanics and material men to bring
personal actions to recover the amount due to them, notwithstanding the
remedy given by the Act of 1806; yet inasmuch as an Act of the legislature
has declared, that when a remedy is provided by an Act of the Assembly,
nothing shall be done as at common law, it seemed proper to reserve to
these creditors, in express terms, a method of proceeding, without which
they may in some cases be unable to recover the amount due to them.

Sect. XXIX. The concluding section extends the provisions of the Act
to plumbers and persons furnishing curb stone, and follows in this respect
the Acts of 1818 and 1831. It seems proper to provide for them specially
here, as they are not necessarily included in the general terms of the first
section.
STATUTES. 343

and townships, and county and township officers;” “An Act
relating to county rates and levies, and township rates and
levies;” “An Act relative to the jurisdiction and powers of
the courts; “An Act relating to domestic attachments;”
“An Act relating to executions;” “An Act relating to insol-
vent debtors;” “An Act relating to lunatics and habitual
drunkards ;” “An Act relating to the lien of mechanics and
others upon buildings;” “An Act relating to orphans’ courts ;”
“An Act relating to the support and employment of the
poor;” “An Act relating to registers and registers’ courts ;”
“An Act relating to roads, highways and bridges,” be and
continue in force, so far as may be necessary to carry into
full effect any proceedings not consummated at the times when
the several Acts hereinbefore enumerated came into operation ;
and all proceedings since the passing of the said specially
enumerated Acts, which have taken place in conformity with
prior existing laws, shall be deemed and taken to be good and
valid to all intents and purposes.

Act of 16th April, 1838, Pamph. L. 626.

An Act granting certain powers to the authorities of the
ecties of Lancaster and Philadelphia, and for other pur-
poses.

Szcr. 19. That, from the passage hereof, the Act entitled
“An Act securing to mechanics and others payment for their
labour and materials in erecting any house or other’ building
within the city of Philadelphia,” passed the seventeenth day
of March, one thousand eight hundred and six, with its sup-
plement, passed the twentieth’ day of March, one thousand
eight hundred and eight, shall be, and the same is hereby de-
clared to be, in full force and operation in the county of
Bradford; and mechanics and others in said county shall have
like remedy, under said Acts, as though they were herein
enacted at full length.

Suct. 34. That the several provisions of the Act of six-
teenth of June, one thousand eight hundred and thirty-six,

 

1 This should be the twenty-eighth day of March. }
344 APPENDIX.

entitled “An Act relating to the lien of mechanics and others
upon buildings,” are extended to wharf-builders, and all con-
cerned in the making or constructing of the same.

Act of April 16th, 1840, Pamph. L. 412.

An Act relating to executions, and for other purposes.

Sucr. 8. That from and after the passage of this Act, the
Act entitled “An Act relating to the lien of mechanics and
others upon buildings,” passed the sixteenth day of June, one
thousand eight hundred and thirty-six, shall be and the same
is hereby extended and declared to be in full force and opera-
tion in the counties of Wayne and Fayette; and mechanics
and others in said counties shall have like remedy, under the
said Act, as though it was herein enacted at full length.

Act of April 28th, 1840, Pamph. L. 474.

Ain Act to authorize the Governor to contract with the cor-
poration of the borough of Harrisburg, for supplying the
public buildings with water, and for other purposes.

Sect. 24, That the lien created by the Act entitled “An
Act relating to the lien of mechanics and others upon build-
ings, passed the sixteenth day of June, one thousand eight
hundred and thirty-six,’’ shall not be construed to extend to
any other or greater estate in the ground on which any build-
ing may be erected, than that of the person or persons in pos-
session at the time of commencing the said building, and at
whose instance the same is erected; nor shall any other or
greater estate, than that above described, be sold by virtue
of any execution authorized or directed in said Act.

Act of March 19th, 1841, Pamph. L. 99.

An Act to incorporate the Lancaster County Mutual Insu-
rance Company, and to extend the Mechanics’ Lien Law
to the County of Clinton.

Sect. 14. That the provisions of the Act of the sixteenth
of June, one thousand eight hundred and thirty-six, entitled,
“An Act relating to the lien of Mechanics and others, upon
STATUTES, 345

buildings,” be and the same are hereby extended to the county
of Clinton.

Act of April 6th, 1841, Pamph. L. 163.

An Act to tneorporate the Village of Clarion, in the County
of Clarion, into a Borough, and for other purposes.

Sect. 22. That the several provisions of the Act passed
the sixteenth day of June, one thousand eight hundred and
thirty-six, entitled “An Act relating to the lien of mechanics
and others, upon buildings,’ be and they are hereby declared
to be extended to the counties of Clarion and M‘Kean.

Act of February 10th, 1842, Pamph. L. 22.

An Jct supplementary to an Act entitled “An Act relating
to the Lien of Mechanics and others upon buildings,”
passed the sixteenth day of June, one thousand eight hun-
dred and thirty-six.

Sect. 1. That the provisions of the Act entitled, “An
Act relating to the lien of mechanics and others upon build-
ings,” passed the sixteenth day of June, one thousand eight
hundred and thirty-six, and also the provisions of the twenty-
fourth section of ‘An Act entitled an Act to authorize the
Governor to contract with the corporation of the Borough of
Harrisburg for supplying the public buildings with water and
for other purposes,” passed the twenty-eighth day of April,
one thousand eight hundred and forty, be and the same are
hereby extended to Bradford and Monroe counties; and me-
chanics and others in said counties shall have like remedy, un-
der said Act, as though they were herein enacted at full length.

Sect. II. The nineteenth section of the Act entitled, “An
Act granting certain powers to the Authorities of the cities of
Lancaster and Philadelphia, and for other purposes,” passed
the sixteenth day of April, one thousand eight hundred and
thirty-eight, is hereby repealed, saving and reserving, however,
the rights of all persons to complete any proceedings begun
under the same.
346 APPENDIX.

Act of March 25th, 1842, Pamph. L. 197.

An Act to appoint Commissioners to re-survey and mark that
portion of the county line which divides the township of
Bristol, in the county of Philadelphia, from the township
of Cheltenham in the county of Montgomery, and for other
purposes.

Sxcr. 30. An Act relating to the liens of mechanics and
others upon buildings, passed the sixteenth day of June, one
thousand eight hundred and thirty-six, sha]l be and the same
is hereby extended and declared to be in full force and ope-
ration in the county of Greene, and mechanics and others in
said county shall have like remedy under the said Act as
though it was herein enacted at full length.

Act of March 30th, 1842, Pamph. L. 213.

An Act to legalize certain proceedings in the Court of Common

Pleas of Adams County, and for other purposes.

Sect. 3. That the eighteenth section of an Act entitled “An
Act relating to the lien of mechanics and others upon build-
ings, passed the sixteenth June, eighteen hundred and thirty-
six, requiring the publication of the writ of scire facias, by
advertisements in daily or weekly newspapers, is hereby re-
pealed,

Act of August 2nd, 1842, Pamph. L. 464.
An Act annexing the county of Schuylkill to the Eastern
District of the Supreme Court, and for other purposes.

Sxct. 29. That the provisions of the twenty-ninth section
of the Act of sixteenth June, eighteen hundred and thirty-six,
entitled “An Act relating to the lien of mechanics and others
upon buildings,” be and the same is hereby extended to the
county of Dauphin.

Act of April 5th, 1843, Pamph. L. 171.

A further supplement to the Act entitled ‘An Act relating to
the lien of mechanics and others on buildings.”

Srcr. 1. That the provisions of the Act entitled “An Act
relating to the lien of mechanics and others upon buildings,”
STATUTES. | 347

passed the sixteenth day of June, one thousand eight hundred
and thirty-six, shall be extended to the counties of Potter and
Jefferson.

Act of April 24th, 1843, Pamph. L. 357.

An Act to incorporate the Manayunk Fire Engine Company
of the county of Philadelphia, and for other purposes.

Sect. 4. That the provisions of the twenty-ninth section of
the Act of the sixteenth day of June, Anno Domini one thou-
sand eight hundred and thirty-six, entitled “An Act relating
to the lien of mechanics and others upon buildings,’’ be, and
the same is hereby extended to the county of Northampton:
Provided, That nothing herein contained shall be understood
or construed so as to change, alter, impair or affect any con-

tracts that shall have been made before the passage of this
Act.

Act of March 19th, 1844, Pamph. L. 140.

Al further supplement to an Act, entitled “ An Act relating
to the lien of mechanics, and others on buildings.”

Sect. 1. That the provisions of the Act, entitled “An Act
relating to the lien of mechanics, and others, upon buildings,”
passed the sixteenth day of June, one thousand eight hundred
and thirty-six, shall be extended to the county of Northampton:
Provided, however, That nothing herein contained shall be
understood or construed, so as to change, alter, impair or
affect, any contracts that shall have been made before the
passage of this Act.

Act of May 6th, 1844, Pamph. L. 565.

An Act further to regulate proceedings in Courts of Justice,
and for other purposes.

Sect. 9. That the lien given by the Act of sixteenth June,
one thousand eight hundred and thirty-six, entitled “An Act
relating to the lien of mechanics and others upon buildings,”
is hereby declared to extend to plumbers, and to persons fur-
nishing curbstones for the pavement of any building within
the bounds of the city of Lancaster.
348 APPENDIX.

Act of April 16th, 1845, Pamph. L. 538.

An Act concerning certain sheriffs’ and coroners’ sales, and
for other purposes.

Sect. 5. It is hereby declared, that the provisions of the
Act approved June 16, eighteen hundred and thirty-six, en-
titled ‘An Act relating to the lien of mechanics and others
upon buildings,” according to the true intent and meaning
thereof, extend to and embrace claims for labour done, and
materials furnished and used in erecting any house or other
building which may have been or shall be erected under or in
pursuance of any contract or agreement for the erection of
the same, and the provisions of the said Act shall be so con-
strued; and no claim which has been or may be filed against
any house or other building, or the lien thereof, or any pro-
ceedings thereon, shall be in any manner affected by reason
of any contract having been entered into for the erection of
such building, but the same shall be held as good and valid
as if the building had not been erected by contract: Provided,
That no case shall be affected by this section, which may have
been decided by the Supreme Court, or in which the proceeds
of the sale of any real estate may have been distributed by
the decree of any court, from which no appeal has been taken.

Act of March 11th, 1846, Pamph. L. 113.

Supplement to an Act, entitled “ An Act relating to the liens
of mechanics and others upon buildings.”

Secr. 1. That the provisions of the Act relating to me-
chanics’ liens passed the sixteenth day of June, one thousand
eight hundred and thirty-six, with its supplements; and the
fifth section of the Act entitled “An Act concerning certain
Sheriffs’ and coroners’ sales, and for other purposes,” passed
April sixteenth, eighteen hundred and forty-five, be and the
same are hereby extended to Pike county.

Act of April 13th, 1846, Pamph. L. 327.

Al supplement to the Act entitled “ An Act relating to the lien
of mechanics, and others, upon buildings,” and for other
purposes.
STATUTES. 349

Sect. 1. That the several provisions of the Act entitled
“An Act relating to the hen of mechanics, and others, upon
buildings,” passed sixteenth of June, Anno Domini one thou-
sand eight hundred and thirty-six, together with the several
supplements thereto, be, and the same are hereby extended
to the county of Adams.

Act of April 10th, 1848, Pamph. L. 449.

An Act extending the chancery powers of, and to the juris-
diction and proceedings in, certain courts.

Sect. 5. The District Courts of the counties of Philadelphia,
Lancaster, and Alleghany, shall have jurisdiction of all joint
claims against two or more buildings owned by the same per-
son or persons, now filed, or that may be filed in said respec-
tive counties, in accordance with the provisions of an Act en-
titled “‘An Act relating to the liens of mechanics and others,
upon buildings,” passed June 16th, one thousand eight hun-
dred and thirty-six, wherein such mechanics and others claim
a sum equal to that of which said courts have respectively ju-
risdiction, according to the several Acts heretofore passed, con-
stituting and regulating them, notwithstanding the several ap-
portioned claims therein be less than the sum of which said
courts have jurisdiction as aforesaid: Provided, That nothing
herein contained shall prevent or impair the issuing and exe-
cuting of separate writs of execution as heretofore, against all
or any of such several apportionments.

Sect. 6. Every judgment heretofore obtained in any of
said courts upon any apportioned claim filed in accordance
with the above section, and those to which such section is a
supplement, in cases where the amount of such judgment is
less than that of which such Court has usual jurisdiction, and
all writs of execution thereon had, shall be deemed good and
valid; and any person or persons purchasing at any sale held
in pursuance thereof, such property taken in execution, shall
be and hereby is or are declared to have as full and indispu-
table title to such property so purchased as he or they would
have if the judgment on which execution and sale was had
had amounted to the sum of which such court has usual juris-

diction.
350 APPENDIX.

Act of January 23rd, 1849. Pamph. L., 686.

An Act relating to the lien of mechanics and others, and to
sales to enforce the payment of liens.

Secr. 1. That the provisions of the twenty-ninth section
of the Act of the sixteenth day of June, eighteen hundred
and thirty-six, entitled “‘an Act relating to the lien of me-
chanics and others upon buildings,” be and the same is hereby
extended to the county of Chester; Provided, That nothing
herein contained shall alter, impair or affect any contracts
that shall have been made before the passage of this Act.

Act of March 24th, 1849, Pamph. L. 675.

A supplement to an Act entitled “An Act relating to the lien
of mechanics and others upon buildings,” passed the siz-
teenth day of June, Anno Domini one thousand eight hun-
dred and thirty-six.

Srot. 1. That from and after the passage of this Act, the
several provisions of the Act of Assembly passed the sixteenth
day of June, in the year of our Lord one thousand eight hun-
dred and thirty-six, entitled “An Act relating to the lien of
mechanics and others upon buildings,”’ be, and the same are
hereby extended to plumbers within the county of Chester.

Sxcr. 2. That it shall be lawful for any mechanic or ma-
terial man in the city or county of Philadelphia, and county
of Chester, who performs work and furnishes materials, to in-
clude both in the same claim filed; and where the value or
amount of the work or materials can only be ascertained by
measurement when done, or shall be done by contract, for a
stipulated sum, it shall be lawful to file a statement of the
time when the work was commenced and when finished, and
of the aggregate price of the work and materials, and all
claims heretofore filed in conformity herewith, and not decided
judicially, are hereby confirmed.

Sect. 3. That the several provisions of the Act to which
this is a supplement, be and they are hereby extended to paper
hangers.
STATUTES. 351

Act of April 9th, 1849, Pamph. L. 495.

An Act relative to mechanics’ liens in the counties of West-
moreland, Columbia and Elk.

Ssct. 1. That the provisions of the Act entitled “An Act
relating to the lien of mechanics and others upon buildings,”
passed the sixteenth day of June, one thousand eight hundred
and thirty-six, be and the same is hereby extended to the
counties of Westmoreland and Elk.

Scr. 2. The provisions of said Act are hereby further ex-
tended to every fixture in and about iron works and mines,
and to every bridge and building where work is done or ma-
terials furnished in the construction of such fixture, in and
about mines or iron works, bridge or building, for any cor-
porate body, or.for a contractor in the employment of a cor-
porate body; arid'the process to obtain satisfaction of any
judgment obtained upon such lien, in any case where by the
existing laws no lien is given, for labour or materials done or
furnished to a corporate body, shall be by writ of sequestra-
tion, as approved by the seventy-third section of the Act of
sixteenth of June, one thousand eight hundred and thirty-six,
entitled “An Act relating to executions; Provided, That
this Act shall not be construed to extend to any case in which
work has been done or materials furnished before the passage
of this Act, unless the lien is filed within six months after the
last work is done or the last materials furnished: And pro-
vided further, That this section shall only extend to the coun-
ties of Columbia and Elk.

Act of April 25th, 1850. Pamph. L. 576.

An Act relating to the bail of executrixes ; to partition in the
Orphans’ Court and Common Pleas; to coloured convicts
in Philadelphia ; to the limitation of actions against corpo-
rations ; to actions enforcing the payment of ground rent ; to
trustees of married women; to appeals from awards of ar-
bitrators by corporations ; to hawkers and pedlers in the
counties of Butler and Union; to the payment of costs in
actions by informers in certain cases ; to taxing lands situ-
ate in different townships ; and in relation to fees of county
352 APPENDIX.

treasurers of Lycoming, Clinton and Schuylkill; to pro-
vide for recording the accounts of executors, administrators,
guardians and auditor's reports; and to amend and alter
existing laws relative to the administration of justice in
this Commonwealth.

Sxct. 38. That the several laws of this Commonwealth
authorizing an apportionment of the amount due for materials
furnished to two or more buildings owned by the same person,
among the said buildings, shall extend to and shall authorize
in similar cases an apportionment for work done, and for work
done and materials furnished, where the same are furnished
under one contract, as fully and in the same manner as is
now authorized and allowed in the case of materials furnished.

Act of 26th April, 1850, Pamph. L. 612.

An Act to incorporate a company to build a plank road from
Titusville in Crawford county, to Warren in Warren
county ; and relative to mechanics’ liens and school districts
in Carbon county; to the borough of Milton, in Northum-
berland county ; to the elections in Franconia township ; and
the borough of Norristown; and to tax collectors in Mont-
gomery county ; and to the courts of Bucks county.

Sect. 9. That from and after the passage of this Act, the
Act entitled, “An Act relating to the lien of mechanics and
others upon buildings,” passed the sixteenth day of June, one
thousand eight hundred and thirty-six, shall be and thesame .
is hereby extended and declared to be in full force and ope-
ration in the county of Carbon; and mechanics and others
in said county, shall have like remedy under the said Act as
though it was herein enacted and recited at full length.

Act of April 21st, 1854, Pamph. L. 428.

An Act relative to Mechanics’ Liens in the County of Schuyl-
kill.

Sect. 1. That the several provisions of an Act entitled
“An Act relating to the lien of mechanics and others upon
buildings,” approved the sixteenth day of June, one thousand
eight hundred and thirty-six, and the several supplements
STATUTES, 353

thereto, are hereby extended to the improvements, machinery
and fixtures erected by tenants of coal lease estates, on lands
of others in the County of Schuylkill, and to all mechanics
and material men doing work and furnishing materials there-
for; Provided, That the lien hereby created, shall extend only
to the interest of the tenant therein.

Act of April 14th, 1855, Pamph. L. 238.

A Supplement to an Act entitled “An Act relating to the
Lien of Mechanics and others upon buildings,” passed the
sizteenth day of June, Anno Domini one thousand eight
hundred and thirty-six.

Sect. 1. That from and after the passage of this Act, the
several provisions of the Act to which this is a supplement be,
and the same are hereby extended to plumbing, gas fitting
and furnishing and erection of grates and furnaces.

Sect. 2. That whenever the items of a mechanic or ma-
terial man’s bill, for work done or materials furnished, con-
tinuously, towards the erection of any new building, are, in any
part, bona fide within six months before the filing of the claim
therefor, the lien shall be valid for the whole; and any lien
heretofore filed within six months after furnishing the last
item of a continuous Dill, shall be good and valid, the same as
if the whole bill were furnished within six months.

Secr. 8. That every claimant having a claim filed for work
or materials, or both, who shall afterwards proceed to perform
further work, or furnish other materials, or both, may make
suggestions thereof on the same record, and filing a statement
of the amount and particulars thereof, which may be recovered,
with the original claim, under the writ, but if the original
claim shall have been sued out, then a separate sctre fucias
may be issued for the supplemental claim.

Act of April 26th, 1855, Pamph. L. 303.

A supplement to an Act, entitled “An Act relating to the liens
of Mechanics and others, and to sales to enforce the pay-
ment of liens.”

Sect. 1. That so much of the third section of the Act en-
titled “‘An Act relating to the lien of mechanics and others,

23
304 APPENDIX.

and sales to enforce the payment of liens,’”’ approved Janu-
ary twenty-third, one thousand eight hundred and forty-nine,
as provides for the redemption, within one year, of property
sold for registered taxes or municipal claims, is hereby de-
clared and construed to extend and apply to all sales for liens
or charges for the expenses of removing nuisances, and that
this is and shall be taken to be the true intent and meaning
of the aforesaid section of the said Act.

Act of April 21st, 1856, Pamph. L. 496.

A further Supplement to an Act relating to the Lien of Me-
chanies and others upon buildings, passed the sixteenth day
of June, Anno Domini, eighteen hundred and thirty-six.

Sect. 1. That from and after the passage of this Act, the
provisions of the Act entitled “An Act relating to the lien of
mechanics and others, upon buildings,” passed the 16th day
of June, Anno Domini 1836, and the supplements thereto, be,
and the same are hereby extended, as fully as the same are
now applicable to buildings, to every steam engine, coal
breaker or parts thereof, pump gearing, hoisting gearing, fix-
ture or machinery in and about mills of any kind, iron or
coal works, coal mines and iron mines.
FORMS. 355

FORMS.

Je

7 Ot tee

THE SEVERAL CLAIMS.

A. B. In the Court
v8. for County
C. D. owner,! of the Term of 185
E. F. contractor. No.
A. B? of the county of , carpenter,? who t en-

titled to the benefit of the provisions of the Act of assembly
passed the 16th day of June, 1836, entitled “An Act relating
to the lien of mechanics and others upon buildings,” and the
several supplements thereto, in respect to the lien and remedy
thereby given for the payment of a debt due tochiaae contracted

—fomvirhekewe,' heehtme for and about the erection and con-
struction, and upon the credit of a building’ erected within
said county, hereinafter more particularly described; in com-
pliance with said provisions, sets forth, in this claim or state-
ment ofetsdemand, as follows, viz.:

 

1 Tf the owner cannot be ascertained with certainty, insert the name of
one who is believed and reputed to be the owner, calling him ‘reputed
owner.” Ifthe same person is both owner and contractor, call him “owner
and contractor.”

? If several persons have a joint claim, state all their names; and, if they
be partners, their partnership name.

* It appears not to be necessary to state the claimant's trade or occupa-
tion, but it is safer to do so. ;

“If the claim be for “materials furnished,” or for both “work done and
materials furnished,” so express it, here.

5 This averment does not appear to be absolutely essential, but it is, per-
haps, safest.
356 APPENDIX.

The said-6-b. was the owner? of said building at the time
the same was commenced; and(the said E. F.? was) the con-
tractor, architect or builder, at whose instance said merk-was’

dene, and with whom the contract of the said A. B. therefor,
was made.‘

The amount claiméd to be due to ime the saidekmm®. is

- dollars and cents.” This sum is due for sea
apontous york’ Jone by the saidwteB:., for and about the
erection and construction of said building.’ The statement
hereto annexed, as part hereof, sets forth particularly the
nature and kind of skesprerketitt,°® and the time when the
same was done.?

 

1 Tf no certainty can be reached, say “reputed owner.”

? There is a want of positiveness in the decisions, but it appears to be
safer to make the owner, at that time, a defendant. If he was, also, owner
when the work was done, add such a statement, and, if he still continues the
owner, it may be well to insert that, also.

3 Tf the owner was, also, contractor, the words “the said E. F. was,” should
be omitted.

4Jt appears to be proper ‘under the present decisions, that the subcon-
tractor be made the defendant, and mentioned here, if the claimant’s con-
tract were with him, directly.

5 This may be larger than the sum proved, but, if it be less, ng more can
be recovered.

6 Tf for materials, say, ‘materials furnished,” designating the kind of ma-
terials. If, for “work done, and materials furnished,” so express it; de-
signating the kind of work, and materials.

7 If part of the work was done upon out-houses, fences, sheds, &c., it ap-
pears to be safer to designate them specifically; and not to add the words
often added here,‘ with the appurtenances.” Thus, “and, also, of a certain
privy, appurtenant thereto, built upon ground immediately adjacent thereto,
belonging in like manner to the owner of said building, and necessary for
the ordinary and useful purposes thereof.”

8 Or “the kind and amount of materials furnished, and the time when
they were furnished;” or “the nature and kind of the work done, and the
kind and amount of materials furnished, and the time when the materials
were furnished, and the work was done.”

9 Tf the work is done or the materials are furnished, under a gross con-
tract, this reference to a statement annexed may be omitted. The aver-
ment in such a case after the word “building,” should be thus: “under and
in pursuance of a written contract or agreement with said E. F. a copy of
which is hereto annexed,” or, “under and in pursuance of @ parol contract
FORMS. 357

Said building is a dwelling-house! of stories, having
a front of feet, and a depth of feet, and
storied back buildings feet deep, by broad,’ situ-
ate upon a certain lot or piece of land within the county of
&e.3

 

or agreement, between the said A. B. and E. F., made on or about the
day of , last, in substance, as follows, viz.:—The claim should

then proceed to aver as follows: “which work was done (or materials were

furnished, or work was done and materials were furnished) under and in pur:

suance of said contract or agreement, between the day of

and the day of last past.” This last date must be within

six months from the time of filing the claim.

Tn case the statement be appended, it is a very important part of the claim,
and should be drawn by counsel, with great care. It need not accord, ex-
actly with the entries in the claimant’s book, if any, though it should con-
form to them, as nearly as is consistent with safety. If the work is by the
day, the dates, and nature and the price or value of every day’s work, should,
if possible, be given. If by pieces or jobs, the day of beginning and com-
pleting each piece or job should be set forth, and its nature, with the con-
tract, or quantum meruit, price or value of the same by measurement or
otherwise. If the claim be for materials, their kind or nature should be
given, and the date, quantity or amount and value of each lot delivered.

If any part of the work has been done, or materials furnished, more than
six months before filing the claim, it should be connected with that done or
furnished within the six months, by an averment, that all were done or fur-
nished under one continuing contract, or were done or furnished “continu-
ously.”

The statement should, in respect of date, nature and kind, quantity or
amount, and price or value, carefully distinguish work from materials; un-
Jess they can only be ascertained by measurement, together, or are done,
together, under one contract. In such cases, a statement of the time when
the work was begun and finished, and of the aggregate price of both work
and materials, is allowed by Act of Assembly; at least, in the counties of
Philadelphia and Chester.

1 The character or object of the building, may be eta

2 Tf part of the work has been done upon ont buildings, or appurtenances,
it would be better, perhaps, to mention and describe them.

* Great accuracy and particularity are not required in these averments;
but it is best to describe the lot, which is alleged to be bound, as particu-
larly, if possible, as in a deed; by streets, courses, distances, and bounda-
ries. Ifthe proceeding to designate the boundaries, contemplated by the
Act, has been had, of course there will be no difficulty or danger. If it
has not been had, the claimant must exercise care, in including what is
covered by the building, and so much other ground, immediately adjacent
358 APPENDIX.

And the said A. B. now here in the manner and form, and
within the time designated by said Act, and according to the
provision, thereof, files this claim or statement of ts demand,
for the purposes and objects of said Act and its supplements,
and to have and obtain the full lien, remedy, force and effect
therein provided for the payment of said debt against said
building, and the ground covered thereby, and so much other
ground immediately adjacent thereto, and belonging, in like
manner, to the owner of such building, as may be necessary
for the ordinary and useful purposes thereof, from the com-
mencement of the said building.

IT.
THE JOINT APPORTIONED CLAIM.
(Entitled as the last.)

A. B. of the county of , lumber merchant, who
is entitled to the benefit of the provisions of the Act of As-
sembly, passed the 16th day of June, 1836, entitled “An
Act relating to the lien of mechanics and others upon build-
ings,” and the several supplements thereto, in respect to the
lien and remedy for the payment of a debt due to him, con-
tracted for materials furnished! by him for and about the
erection and construction of several buildings adjoining each
other, erected within said county, hereinafter more particu-
larly described; in compliance with said provision, sets forth,
in this his claim or statement of his demand, as follows, viz.:

The said C. D. was the owner of said buildings, at the time
when the same were commenced, and the said E. F. was the

 

thereto, and belonging, in like manner, to the owner of the building, as may
be necessary for the ordinary and useful purposes of such building. Ina
city this is not difficult, and objection is seldom made to the metes and
bounds designated in the claim, or in the levari facias. If the claimant
includes less, in his claim, than he might have included, he cannot sell more;
but, if he includes too much, he will, probably, be only narrowed or con-
fined to what is, in the regular way, ascertained to be bound by his lien.

1 The Act of 1850 authorizes an apportionment “for work done and for
work done and materials furnished, where the same are furnished under one
contract.”
FORMS. 309
contractor, architect, or builder, at whose instance said work
was done, and with whom the contract of the said A. B. there-
for was made.

The amount claimed to be due to him, the said A. B. is

dollars and cents. This sum is due for
lumber furnished by the said A. B., for and about the erection
and construction of said buildings. The statement hereto an-
nexed as part hereof, sets forth particularly the kind and
amount of the said materials furnished, and the time when
the same were furnished.

Said several adjoining buildings, are dwelling-houses, of

stories, &c., &c., &c., &e., situate one of them on a
certain lot or piece of land within said county of
&e. another of them, &e.

And the said A. B. hereby designates the amount which he
claims to be due to him on each of said buildings, as follows,
viz. He designates the sum of to be due to him on
said building first herein above described, &c. He designates
the sum of to be due to him on said building second
herein above described.

And the said A. B., now, here, in the manner and form,
and within the time designated by said Act, and supplements,
and according to the provisions thereof, files this claim or
statement of his demand, for the purposes and objects of said
Act and supplements, and to have and obtain the full lien,

remedy, force and effect, therein provided, for the payment of
said debt, against said several buildings, and the ground respec-
tively covered thereby, and so much other ground immediately
adjacent to them, respectively, and belonging, in like manner,
to the owner of such building, as may be necessary to the or-
dinary and useful purposes thereof respectively, from the com-
mencement of said building.’

It.
THE SCIRE FACIAS.
A form of this writ is given in section 15, of the Act of 1836.

 

1 The notes to the first claim, generally, apply to this claim.
360 APPENDIX.

IV.
PETITION UNDER THE 23RD SECTION OF THE ACT OF 1836.
Entitled as of the Term and No. of the lien.

To the Honourable, the Judges of the Court for the
of

The petition of C. D.1 respectfully showeth: that on the

day of 185 , to term of this court,

No. A.B. filed an alleged claim under the Act entitled “An
Act relating to the lien of Mechanics and others upon build-
ings,” passed the 16th of June, 1836, and the several supple-
ments thereto, against a certain building and lot or piece of
ground of which your petitioner is the owner ;” that your peti-
tioner denies the validity of said claim, and has a just and legal
defence thereto ;* but no opportunity has been given to him to
assert said invalidity, with effect, or to make said defence, no
scire facias having been issued thereon.

Your petitioner therefore prays this Honourable court, ac-
cording to the Act in such case provided, to grant a rule upon
the said A. B. to appear before your Honours, at a time to be
fixed for such purpose, and that, on the return of said rule,
your petitioner may proceed, in like manner as if a sctre facias
had been issued by such claimant, and had been duly served
and returned.

And your petitioner will ever pray, &c.

V.

FORM OF THE RULE ON THE ABOVE PETITION.
Entitled as of the term and No. of the lien.

And now the petition of C. D. this day filed,
being heard, the court grant a rule on the said A. B. returna-

 

1 The owner or any person interested in the building.

* Or, if not owner, but otherwise interested, state the nature of the inte-
rest.

3 The Act requires the petition to set forth the facts. It would, perhaps
be safer, therefore, to state.the ground of objection, or defence.
FORMS. 361

ble on to show cause why the petitioner should not
proceed in like manner as if a scire facias had been issued,
according to the Act in such case provided.

VI.

ORDER OF THE COURT UPON THE ABOVE PETITION.

That in this case, the plaintiff shall file a statement or de-
claration, upon the contract under which the said work was
done, stating the same particularly; if any special contract
were made, annexing thereto, as a part thereof, a bill of the
items or particulars of the demand, as fully as they appear
upon the plaintiff's book of entries, if any such are intended
to be offered in evidence on the trial; and if no such entries
are to be offered, then the said bill shall state particularly the
dates or times at which said work and labour were performed.
And the court further direct, that the defendant allege, par-
ticularly, his defence to such parts of the plaintiff’s statement,
or to such item of his bill of particulars, specifying the same,
as he intends to dispute; and neither party shall be allowed
on the trial to allege or prove any matter or thing not con-
tained in the statement or bill of particulars, exception, or de-
fence. The plaintiff to comply with this order on or before
the 7th day of June, 1887, or, in default thereof, jadgment
of non. pros. to be entered and the claim to be stricken from
the record."

VII.

PLAINTIFF'S STATEMENT UNDER SAID ORDER.?

VIII.

DEFENDANT'S ALLEGATIONS IN DEFENCE UNDER SAID ORDER.”

 

1 See Borton v. Morris, 2 M. 109.

2 These depend so entirely upon the circumstances of each case that we
must leave them to the ordinary rules of statements and declarations, and
the peculiar terms of the order.
362 APPENDIX.

IX.
ENTRY OF THE SUGGESTION UNDER THE 19TH SECTION.

Hintitled as of the seire facias already issued.

On the day of &e., came EH. F. into
the said court, and suggested that he, the said HE. F., on
the day of &c., filed in the said court, ac-

cording to the form of the Act of Assembly in such case made
and provided, a claim against the building described in the
said writ of scire factas, and against the said C. D. as owner
of the said building, (or as reputed owner, as the case may be,)
and against G. H. as contractor, &., (according to the fact,)
for work and labour (or for materials furnished, §c., as the
case may be,) as follows, to wit: (here set out fully a copy of
the claim filed,) as appears of record. And thereupon the
said H. F. asked leave of the court that his said suggestion
might be entered upon record in the said cause, together with
the particulars of his said claim, which was allowed. And
thereupon, on motion of the said E. F. by J. K. his attorney,
a rule was granted upon the said C. D. to appear and plead
to the said suggestion, on ten days’ notice of the said rule and
suggestion, or show cause why he should not, or in default
thereof, that judgment be entered against him for want of a
plea.’

X.
THE LEVARI FACIAS.

A form of this writ ts given in the 21st section of the Act of
1836.

 

1 See Noyes v. Fritz, 2 M. 162.
INDEX.

ABATEMENT.

That one of two contractors is not named, is pleadable in, 209,
274,

ACTION.
Act of 1803, provided for, as mode of recovering debt, 219.
No provision as to form of, 219.
Probably special, intended, 220.
Taking a bond and warrant is not, 220.
Assumpsit against contractor is not, 220,
Personal, 312.

ACTS OF ASSEMBLY.

Act of 1784, relating to persons employed on vessels, &c., 33.
Similar to Mechanics’ lien laws, 33.
Early Acts imperfect, 34.
Acts extending the system locally, 48, &e.
Act of 1803, whether retrospective, 41.
Confined to city of Philadelphia, Southwark and Northern Liber-
ties, 48.
Makes provision only for case in which owner is debtor, 61, 125.
Words of, in defining debt, 83.
Names the classes to which it applies, 113.
Estates affected by, 151.
Commencement of lien under, 166.
Continuance of lien under, 172, 179, 181.
No provision in, as to form of claim or parties to it, 204.
Requires a claim, 219.
Contemplates an action, 262.
Act of 1806, how it differs from that of 1784, 32.
Followed by Congress, 36.
Confined to City and County of Philadelphia, 36, 48.
First provides for case in which owner is not debtor, 61, 63, 125.
364 INDEX.
ACTS OF ASSEM BLY— Continued.

Did not allow journeymen, &c., to claim, 77.
Does not only include regular tradesmen, 81.
Words of, in defining debt, 83.
Names the classes to which it applies, 113.
Did not include paper-hangers, &c., 114.
Extent of lien under, 138.
Estate affected by, 151, &e.
Commencement of lien under, 166.
Continuance of lien under, 172, 179, 181, 183.
Effect under, of taking judgment bond, 189.
No provision in, as to form of claim or parties, 204, 205.
Provision of, requiring a claim, 219.
Action contemplated by, 262.
Requires pro rata payments of proceeds of sale, 301.
Act of 1808, followed by Congress, 36.
Extended Act of 1806 to boroughs of Erie, Lancaster and
Pittsburgh, 48,
Provides for contractor, under name of debtor, 62.
Estate affected by, 151, &c.
Effect under, of taking judgment bond, 190.
Provision of, as to parties to sctre facias, 207, 210.
Construction of, as to joint claims, 249.
First Act that mentions a scire factas, 262.
As to service of sete facias, under, 262.
Confines execution to the building, 297.
Act of 1813, extends Acts to borough of Beaver, 48.
Act of 1815, extends Acts to borough of Marietta and Harrisburgh, 48.
Act of 1817, extends Acts to boroughs of Reading, and Westchester,
and towns of Alleghany, Birmingham, Sydneyville, Belins-
town, Bayardstown, Lawrenceville and Wilkinsburgh, &c.,
and to counties of Lancaster, Montgomery, York, Dauphin,
Franklin and Lebanon, 49.
Act of 1818, extends Acts to Cumberland, Northumberland, Colum-
bia and Beaver, 49.
Act of 1821, extends Acts to Delaware, Bucks, Luzerne, and Mifflin, 50.
Act of 1825, extends Acts to Schuylkill, Berks, Erie, Somerset, and
Venango, 50.
Act of 1826, extends Acts to Crawford, Lycoming, Centre, Clearfield
and Indiana, 50.
Act of 1827, extends Acts to Union, 50.
Act of 1830, extends Acts to borough of Easton, 50.
Does not save mechanics’ liens, 187.
Act of 1831, extends Acts to Bedford, Cambria, Tioga and
Armstrong, 50.
Extends Acts to plumbers, in Philadelphia, 115.
Continuance of lien under, 181.
INDEX. 365

ACTS OF ASSEMBLY—Continued.

Provision of, as to apportionment, 252.
Act of 1832, extends Acts to Chester, Butler and Perry, 50.
Act of 1835, extends Acts to Warren, Juniata, Washington, Hunting-
don, Mercer, Beaver and Alleghany, 50.
Act of April 1, 1836, extends Acts to Susquehanna, 50.
Act of June 16, 1836, is the most perfect, 35.
Not retrospective, 41.
Extended over whole state, as it came from Commissioners, 51.
Does not include classes not included by Act of 1803, 77, 78.
Embodied fruits of former experience, 39,
Whether retrospective, 41, 43.
Construed by Act of 1840, 44, 45.
Extent of, 51, 52.
Extended to Lehigh, 52.
List of counties included in, 53.
Extended to plumbers and persons furnishing curbstone, 54, 101,
116.
Mentions contractor, 62, 125.
Does not embrace journeymen, &c., 77.
Does not only include regular tradesmen, 82.
Words of, in defining debt, 83.
Form of sctre facias in, 89.
Construction of, as to extent of lien, &e., 90, 93.
What classes can claim under, 115.
Does not name particular mechanics, 117.
Commissioners’ report on, as to extent of lien, 140, &c.
Extent of lien under, 144.
Mode of designating boundaries under, 144, &c.
Estate affected by, 151, &c.
Commencement of lien under, 166.
Continuance of lien under, 172, 179, 181.
Postponement under, on failure to apportion, 185.
Courts having jurisdiction under, 202.
Provision in, as to parties to claim, &c., 204, 208, &e.
Provision in, as to form of claim, 222,
Apportionment under, 252, &e.
Provides for scire facias, 262, &c.
As to service of scire factas, under, 264.
Provision in, requiring advertisement repealed, 264.
Provision in, compelling claimant to proceed, 267.
Provision in, as to coming in by suggestion, 270.
As to judgments for want of affidavit of defence, 272.
Provides levari facias, 299.
Provides mode of designating premises, 300.
Provides mode of distributing proceeds, 304.
Personal remedy under, 312.
366 INDEX.

ACTS OF ASSEMBLY—Continued.
Act of 1838, extends early Acts to Bradford, 52.
Repealed in 1842, 52.
Extends Acts to wharf builders, 86.
Act of 1840, extends Acts to Wayne and Fayette, 52.
Limits estate affected, 35, 88, 93, 154, &c., 160.
What case produced it, 90, 129.
Whether retrospective or not, 41, &e.
Act of 1841, extends Acts to Clinton, Clarion and M‘Kean, 52.
Act of 1842, extends Actsto Bradford, Monroe, Greene and Dauphin, 52.
_Repeals part of Act of 1836, requiring advertisements, 264.
Regulates judgment for want of affidavit of defendant, 272.
Act of 1843, extends Acts to Potter and Jefferson, 53.
Extends Acts to plumbers in Northampton, 54, 116.
Act of 1844, extends Acts to Northampton, 53, 54.
Extends Acts to plumbers and furnishers of curbstones, in Lan-
caster, 55, 116.
Act of 1845, allows a lien in case of special contract, 36.
Whether retrospective, or not, 46.
Annuls previous decisions, 69, &c.
Does not include journeymen, 78.
What case led to its passage, 123.
Acts of 1846, extend Acts to Pike and Adams, 53.
Act of 1848, gives District Courts of Philadelphia, Lancaster, &c., juris-
diction over apportioned claims under $100, 203.
Requires several executions in cases of apportionment, 301.
Act of 1849, extends Acts to Westmoreland and Elk, 53.
Extends Acts to plumbers, &c., in Chester, 54, 117.
Extends Acts to fixtures, &c., about iron works, &c., in Colum-
bia and Elk, 55, 86.
Allows work and materials to be embraced in Philadelphia and
Chester, 55, 226, 236.
Extends Acts to paper hangers, 116.
As to exemption of $300, does not apply, 186.
Act of 1850, extends Acts to Carbon, 53.
Allows apportionment of work, 254.
Act of 1854, extends Acts to coal lease estates in Schuylkill, 55, 87, 93.
Enlarges jurisdiction of Common Pleas of Philadelphia, 202.
Act of 1855, as to continuous work, &e., of which part is more than
six months old, &., 175.
Allows a suggestion to bring in subsequent work, 271.
Provides for judgment for want of affidavit of defence, 272.
Act of 1856, extends Acts to fixtures about mills, iron and coal works,
and mines, 87.

ADAMS.
Acts extended to, 53.
INDEX. 367

ADDITION.
What is only, 101.
Slight work, after interval or sheriff's sale in, 170.
Not a subject of lien, 101, 170.

‘ADJOINING.

What houses are, with reference to apportionment, 256, &e.

ADMINISTRATOR.
No judgment against, for want of affidavit of defence, 273.

ADVERSE TITLE.
Not affected by lien, 302, 303.

ADVERTISING.

Act requiring service of scire facias by, repealed, 264.

AFFIDAVIT.

Of defence, judgment for want of, 272.

AGENT.

How far contractor is, for owner, 125, 313.

AGREEMENT. See Contract.
ALDERMAN.

Has no jurisdiction under Acts, 203.

ALLEGHANY.
Acts extended to town of, 48, 49, 50.

ALTERATION.

When work is a mere, 101.

AMOUNT.
For which claim may be filed, no limit to, 163.
Generally filed for greater, than due, 163.

APPORTIONMENT. See Jornt Ciais.
Different commencement in cases of, 170.
Failure to make, postpones, 185, 259.

To all lien creditors, 185.

Does judgment cure?, 185.

Jurisdiction of courts in cases of, 203.

In case of houses owned by same person, 249.
Where owners different, 249.

Option as to, 249, 250.

Acts of 1831 and 1836, as to, 252.

Under them only in case of materials, 252.
368 INDEX.

APPORTION MEN T— Continued.
Act of 1850, as to, includes work, &c., 254.
Houses must adjoin for, 256, &c.
Main house and out-houses not a case for, 258.
Effect of change of ownership as to, 259.

APPROPRIATION.
Of payments, 193.

APPURTENANCKS.
What are within Acts, 95.
As regards character of, as fixtures or not, 95.
As regards distance of, from building, 97.
Must they be described in claim?, 245.

ARMSTRONG.

~ _ Acts extended to, 50.

ae ee fe ei go tees
AUDITOR. See DISTRIBUTION.
BARN.

A building within the Acts, 84, 85, 97.
What extent of ground goes with, 138, 147.

BATHHOUSE.
When within Acts, 99.

BAYARDSTOWN.
Acts extended to, 49.

BEAVER.
Acts extended to, 48, 49, 50.

BEDFORD.
Acts extended to, 50.

BELINSTOWN.
Acts extended to, 49.

BILL.
Annexed to claim, part of it, 225, 246.

But should be referred to in it, 225.

BIRMINGHAM.
Acts extended to, 49.

BLACKSMITH.
Mentioned in Acts of 1803 and 1806, 113.

BLOCK,
Of houses, what is, 256,
INDEX. 369
BOILER

In engine house, is within Acts, 84.
In brew-house, is within Acts, 95.

BOND.

Taking, does not prevent lien, 121.
Taking, does not discharge lien, 189.
BOOKS.
Entries in, best proof of credit to building, 280, &e.

BOUNDARIES
Of land affected by lien, how ascertained, 144, &.
Not often ascertained under Act, 148.
How ascertained, for levari facias, 299.

BRADFORD.
Acts extended to, 52.

BREWERY
Is a building within the Acts, 84.

BRICKLAYER
Is mentioned in Acts of 1803 and 1806, 113.

BRICKMAKER
Is mentioned in Acts of 1803 and 1806, 113.

BRIDGES.
Acts extended to, 55.

BUCKS.
Acts extended to, 50.

BUILDING.
Term more comprehensive than house, 83.
Term used, alone, in Act of 1836, 83.
Church is a, 83, &c.
Public, not within Acts, 86.
What are, within Act, 84.
Lien not confined to, only, 135.

BURNING

Down of house, discharges premises from lien, 199.

BUTLER.
Acts extended to, 50,

CAMBRIA.
Acts extended to, 50.

24
370 INDEX.

CARBON.
Acts extended to, 53.

CARPENTER
Is mentioned in Act of 1803, 113.

CARTER
Has no lien, 76.

CENTRE.
Acts extended to, 50.

CERTIFICATE,
For defendant not allowed, 297.

CHANGE
Of plan, does not make a new commencement, 168.
Unless, after a long interval, 168, 169.

CHATTELS REAL
Are not within Acts, 87, &c.

CHESTER.
Acts extended to, 50.
Acts extended to plumbers in, 54,
29th section of Act of 1836, extended to, 55.

CLAIM.

Early Acts imperfect in regard to, 34, 204.

Liberality as to form of, 38, 40, 164, 219.

But must, substantially, comply with Acts, 39.

Has no aid from statute of jeofails, 40.

Not amendable, 40, 248.

Insufficient notice from, 164.

If defective, another may be filed, within time, 179, 246,
&e.

Necessary to a continuance of lien, after six months, 179.

Must be filed within that time, 179.

Parties to, 204, &c.

Name of claimant in, must be mentioned, 204.

Whether owner and contractor must be named in, 205, &c., 210,
212.

Mistakes as to parties in, how far fatal, 207, 225.

Filing of, if ea parte, 221.

Is not a record, 221, 246.

Is like registry of mortgage, 221.

Forms of, various, 222.

Design of, is to give notice, 222.

What it must set forth, under Act of 1836, 222.
INDEX. 371
CLA I M—Continued. iy

Name of claimant in, 223.

If partners either individual names or firm name in, 224.

Name of owner at commencement in, 224.

Titles, as owner or contractor in not necessary, 224, 225.

Nature or kind of work and materials, 225.

May be set forth in a bill annexed, 225, 246.

Bat bill should be referred to in, 225.

Work and materials may be included in same, 226.

But must be distinguished, 226.

Unless both done by contract, or only ascertainable by measure-
ment, 122, 126, &e.

Then must set forth beginning and end of work, and aggregate
price of materials, 227.

This under Act of 1849, which applies to Philadelphia and Ches-
ter, 226.

How the kind and amount, &c., are to be set forth in, 227, &e.

Must set forth time when work done and materials furnished, 228,

How this time is to be set forth in, 228, &e.

How in case of special contract, 237.

Special contract need not be referred to in, 239.

Locality and size, &c., of building in, 240.

License as to these in, 240, 241.

Description by metes and bounds in unnecessary, 240.

But, perhaps, better to be in, if can be ascertained, certainly, 241.

Safer to include too much, than too little in, 240.

License in stating locality in, 242, &e.

Size and number of stories, 245.

Necessity of setting forth character of building in, 245.

Must appurtenances be described in? 245.

Must a credit to the building be alleged in? 246.

Need not state work done “for or about erection,” &c., 246.

May be signed by counsel, 246.

Is not evidence, 280.

See Srrixine Orr.

Sze Joint Ciaims.

See Parrizs.

CLAIMANT.
Must be mentioned in claim, 204, 223.
And in setre factas, 205.
See Camm.

CLARION.
Acts extended to, 52.

CLEARFIELD.
Acts extended to, 50.
372 INDEX,

CLINTON.
Acts extended to, 52.

COAL BREAKER.
Acts extended to, 87.

COAL LEASE ESTATES.

Acts extended to improvements on, 55, 87, 93.

COAL MINES.

Acts extended to fixtures and machinery of, 87.

COAL WORKS.

Acts extended to fixtures and machinery of, 87.

COLUMBIA.
Acts extended to, 49.
Acts extended to iron works, &c., in, 55.

COMING IN
By suggestion, 270.
Mode of, 271.
Of mortgagee to defend, 217.

COMMENCEMENT
Of lien, 166, &e.
Is with first work, 166.
Digging foundation is, 166.
Or laying first stone, or timber, 166.
Change of ownership does not make new, 166.
Nor changing plan, 168.
Unless change is made after a long interval, 169.
Sheriff’s sale makes a new, if there is a building after, 169.
Not a new, if work trivial, 170.
Then it is extra work, for which no lien, 170.
Different, in cases of apportionment, 170.
Unless all the houses began together, 170.
Time of, is not specified in claim, 184.
Is a subject of proof before auditor, 185.
Need not be proved at trial, 279.

COMMON PLEAS.
Jurisdiction of, 202.
Of Philadelphia, jurisdiction of, 202.

COMPELLING
Claimant to proceed, 267.
Practice in, 268,
INDEX. 373

CONSTITUTIONAL QUESTION,

As to retrospective character of Acts, 40.

CONSTRUCTION.

Strict because proceeding statutory, 37.

Only strict as to new applications of laws, 37.
Semble, not as to procedure, 37.

Liberal, as to forms of claims, 38, 39.

Dangers of too great license in, 38, 40.

As to retrospective character of Acts, 41, 42, &c.

CONTINUANCE

Of lien was, at first, for two years, 172.

Was without claim, 172.

For six months, by Act of 1836, 172.

From time of finishing work, or furnishing materials, 172.

How six months of, calculated, 172.

Question for jury with reference to, when work finished or ma-
terials furnished, &c., 172.

Distinct debts, with reference to, if interval between different works
or deliveries, 173.

Six months of, run from each item, 173, &c.

Except in cases of contract, 175, &c.

Act of 1855 saves as to, what is older than six months, 175.

If done continuously with what is within the time, 175.

Treated as extra work, if not continuous and no contract, 177.

Not affected by defective claim, if time not elapsed, 179.

Not more than six months, without claim, 179.

Claim must be filed for, within that time, 179.

Indefinite, under first Acts, 181.

Five years after claim, new, 181.

By scire facias, every five years, 181.

Though five years elapse before judgment on the scire facias, 182.

Without revival against proceeds, 183.

CONTRACT,
Is not impaired by Act of 1840, only remedy, 42, &e.
Must have been with owner, at first, 125.
Not under later Acts, 125.
In case of, work and materials in same claim, 226.
What averments in claim, as to, 226.
Need not be referred to, in claim, 239.
With head contractor effect of, as to mechanics, 283.
See Specrat Contract.

CONTRACTOR.
Losses by, led to the system, 34,
Who he is, 60.
374 INDEX.

CONTRACT O R—Continued.
Not recognised by Act of 1803, 60, 125.
Existence of, prevented the lien, 60, 61.
How far agent for owner, 61, 125.
Called “debtor,” in Act of 1808, 62.
First so called by Act of 1836, 62.
Made important party, 62.
But known in the proceeding, before 1836, 62.
Held not to be entitled to a lien, 63, &c.
Reasons for excluding him, 67.
Not excluded on ground of contract merely, 67, 68.
Has a lien by Act of 1845, 69.
Has no lien against those he employs, 70.
For he is their debtor, 70.
His contract limits claims of others, 72, 73, &c.
Non-joinder of one of, matter of abatement, 209, 274.
Not a witness for owner, 292.
Is witness for claimant, 293.
Is witness before Auditor, 293.
Sez Sun-conTractor.
See Parrizs.

COPY.
None filed to take judgment, 272.
CORPORATION.

Acts extended to mines, iron works, bridges and buildings of, 55.

COSTS.
Cannot proceed for, after a sale, 164, 200, 310.
Are payable out of proceeds of sales, 310.

COUNTIES.
No provision where lands lie in two, 202.
List of, to which Acts extend, 53,

COURTS.
See JURISDICTION.
See District Court.
See Common Peas.
See Law anp Fact.

CRAWFORD.
Acts extended to, 50.

CREDIT.
Work or furnishing must be on, of house, 117.
Must this be averred in claim? 246. ,
Proof of, to house, 283, &c.
INDEX, 375

CREDITORS
Should be protected by notice from claim, 39.

CUMBERLAND.
Acts extended to, 49.

CURBSTONE.
Acts extended to furnishers of, in Philadelphia, 54, 101, 116.

And in Chester, 54, 117.
And in Lancaster, 55.

DAUPHIN.
Acts extended to, 48, 49, 52.

DAY LABOURER
Has no lien, 76.

DEBT.
Nature of, secured by the lien, 83, &c.

DECLARATION.
Scire facias is, 274.

DEFENCE.
Mortgagee may take, 217.

DELAWARE.
Acts extended to, 50.

DEMURRER
To claim good, 260, 274.
For variance, 275.

DESCRIPTION
Of land subject to lien, how ascertained, 144, &c.
License as to, 148, &e.
Advantage of fulness in, 149.
How obtained, for levari facias, 299, &c.

DESIGNATION
Of amounts in cases of apportionment, 249.
Of boundaries, see Bounparizs.

DIFFERENT COUNTIES.

No provision made where lands lie in, 202.

DISCHARGE
Of lien, by release, if delivered, 188.
Taking security not a, 188, 9.
Taking note, bond, or judgment not a, 189.
But time given to contractor is, 191.
376 INDEX.

DISCHARG E—Continued.

, By estoppel, 197.
By sheriff’s sale, 197.
By burning of house, 197.
Not by tearing it down, 199.

DISCONTINUANCE.

New scire facias in case of, 264.

DISTILLERY
Is a building within the Acts, 84.

DISTRIBUTION
Of proceeds of sheriff's sales, 304.
Auditor usually makes, 305.
Who may object, in case of, 305.
Issue in, if necessary, 306.

DISTRICT COURT
Of Philadelphia, jurisdiction of, 202, 203.
Of Lancaster and Allegheny, 203.

EASTON.
Acts extended to, 50, 54.
ELK.
Acts extended to, 53.
Acts extended to iron works, &c., 55.

ENGINE HOUSE
Is a building, within the Acts, 84.

EQUITABLE ESTATE.

Ser Estate.

ERECTION AND CONSTRUCTION.
What is, 101, &c.
When they are a mere addition, 101, &c.

ERIE.
Acts extended to, 48.

ESTATE
In fee formerly bound, 35, 150, &e.
Though building were by tenants for life, or owner of equitable
estates, 35, 150, &e.
This changed by Act of 1840, 35, 160.
Lien confined by it to, of person in possession, &c., 35, 160.
For years, not within Acts, since 1840, 87, 88, &c.
Of coal lease, improvements on, 55, 87.
Owner of what, can pledge credit of building bound, 128, 150, &.
INDEX. 377

ESTA T E— Continued.

Formerly, of any one in possession who built, 129, 150, &e.

Of tenant for life, owner of equity, &., 129, 150, &e.

Not of trespasser, 129.

Nor of Insurance Company, building under policy, 130, 159.

Act of 1840 has changed this, 129.

Where legal, acquired, relation back, 161. '
Right of lessee to purchase in fee, effect. of, as to, 161.

ESTOPPEL.

Lien discharged by, 197.

EVIDENCE

On trial of scire facias, 279.

Of facts of erection, &e., 279.

Of commencement, unnecessary, 279.

Of names and characters of parties, and their relations, 279.
Of contract of chief contractor, 280.

Of doing work or furnishing materials, 280.

Claim is not, 280.

Books of original entry, when, 280.

Allegata and probata, 280, &c.

How far variance of, fatal, 281.

To supply omissions and correct mistakes, 281.

As to amount, need not correspond, exactly, 281, 282.
Of time, 282.

As to locality, how far may vary, 282, 283.

Of special contract, must be given, 283.

Of contract by contractor, how far binds owner, 283.
Of credit to building, 283, &.

Best, of credit, is charge to house on books, 283, 284, &e.
But entry on books not necessary as, 286.

Other, allowed, 286.

Of work on house, 286.

Or of delivery at, 286.

Of use in, 286.

Of actual use, not indispensable, 287.

Showing fraud, 289.

As, of knowledge, that more than enough is furnished, 289.
Or, of delivery at inconsistent time, 292.

Of special contract, effect of, 292.

Of note, bond, or security, 292.

Of filing within six months, 292.

Sez WiryEss.

EXECUTION.

Materials not subject to, against contractor, 132.
Form of given in Act, 299.
378 INDEX.

EXECU TIO N—Continued.
By levari facias, 299.
Description for, how obtained, 299.
Several, in case of apportionment, 300.

EXEMRETION ACT.
Mechanic’s liens not affected by, 186, 303.

EX POST FACTO

Construction, danger of, 41, 42.

EXTENT
Of the Acts has increased, 36.
Is now over almost the whole state, 36.
Of lien, as respects ground, 135, &c.
Not confined to house, 135, &c.
Nor to ground covered by house, 135, &e.
Reaches to other ground necessary and useful, 144,
See report of Commissioners as to, 140, &c.
Mode of ascertaining, under Act, 144.

EXTRA WORK
Is not a subject of lien, 170.
What is, 177.
FACT.
See Law anp Fact.
See Jury.
FACTORY
Is a building within the Acts, 84.

FAYETTE.
Acts extended to, 52.

FEE SIMPLE.
See Estate.
FENCE.
Whether within Acts, 100.

FILING.

See Crai.

FINISHING
Work, what is, 173, &e.
Time of, is question for jury, 172.
Each distinct, a separate debt, 173.
Where work is done under one contract, 175, &c.
Where work is done continuously, under Act of 1855, 175,
Extra work not a, 177.
INDEX. 379
he ot
FIRE
Discharges lien when, 197.
FIXTURES

Of coal lease estates, Acts extended to, 55.
About iron works, and mines, 55.
What about a building, are within Acts, 95, &c.

“FOR OR ABOUT.”

When work is done, or materials furnished, 120.

FORMER RECOVERY
Is a defence, 278.

FOUNDATION.

Digging, is commencement, 166,

FRANKLIN.
Acts extended to, 49.

FRAUD

In furnishing, u defence, 289, &c.

As, in case of knowledge that too much is furnished, 289.
FURNACE

Is a building within the Acts, 84, 97.
Those furnishing, have lien, 117.

FURNISHING

Materials, what is, 173.

Time of, question for a jury, 172.

Each, a distinct debt, 173.

Except in cases of contract, 175.

Or where is continuous under Act of 1855, 175, &.
GAS FITTER

Has the lien, 117.
GIVING TIME

To contractor, discharges owner, 190, &c.

GLAZIER
Is mentioned in Act of 1803, 113.

GRATES.

Those furnishing, have liens, 117.
GRAVEYARD
Is not embraced in lien against church, 146.

GREENE.
Acts extended to, 52.
380 INDEX.

GROUND.
How much affected, 137, &c.
See Extent.

GUARANTEE
Of third person, does not deprive of lien, 121.

HARRISBURG.
Acts extended to, 48.

HIRING
By the day does not forbid lien, 80.

HISTORY.
No precedent for the system, here or in England, 33.
Similarity of Act of 1784, as to work on vessels, 33.
Origin of mechanics’ lien law, doubtful, 33.
Long continued regard for mechanics, 34.
Losses by contractors led to the Acts, 34.
Early defects of the system, 34, 35.
Act of 1836, most perfect, 35,
Change by Act of 1840, as to the estate affected, 35.
Change by Act of 1845, as to cases of a contract, 35, 36.
Our system adopted by Congress, &e., 36.
System has extended over most of our own state, 36.

HOD CARRIER

Has no lien, 76.

HOISTING GEARING

About mills, iron and coal mines, and works, within Acts, 87.

HUNTINGTON.
Acts extended to, 50.

ICE HOUSE.
Semble, not within Acts, 85.
Contra, 97.
Is, if attached to main house, 89, 101.

IMPROVEMENTS

On coal lease estates, Acts extended to, 55.

INDIANA.
Acts extended to, 55.°

IN PERSONAM.
Not a proceeding, 164, 200.
See PersonaL RemeEpy.
INDEX. 381

IN REM.
Strictly a proceeding, 164, 200.

INSURANCE COMPANY.
Building by, under policy, not within Acts, 130, 159.

IRON MINES.

Acts extended to fixtures and machinery of, 87.

IRON MONGER
Is mentioned in Act of 1803, 113.

IRON WORKS.
Acts extended to fixtures of, 55, 87.

IRREGULARITIES

In proceedings, when cured by judgment, 298.

ISSUE

Under proceedings to compel claimant to go on, 268.
Will be directed, if necessary, in distribution, 306.

JEFFERSON.
Acts extended to, 53.

JOINT CLAIMS
Cannot be filed against houses owned by different persons, 249,
255.
May be filed where houses owned by one person, 249.
Held, contra, formerly, 249.
Allowed to be apportioned by Acts of 1831 and 1836, 252.
Should aver joint ownership, 253, 259.
First Acts in regard to, applied only to materials, 254.
Act of 1850 allows in case of work, 254.
Houses must adjoin to allow of, 256, &c.
Act as to, does not apply to main house and out-houses, 258.
Should aver that houses adjoin, 259.
Effect of change of ownership as to, 259.
If no apportionment in, claimant postponed, 259.

JOURNEYMAN

Has no lien, 76.

JUDGMENT.
Entering a, does not prevent lien, 121.
Nor does taking, discharge lien, 189.
For want of affidavit of defence, 272.
No copy filed for, 272.
Effect of, 298,
382 INDEX.
JUDG MEN T—Continued.

Protects from certain objections, 305.
But before, other creditors may object to claim, &c., 305.

JUDICIAL EXPOSITION.
Effect of, 44, &c.

JUNIATA.
Acts extended to, 50.

JURISDICTION
Of courts, 202, &e.
Tn cases of apportionment, 203.
JURY.

Time of finishing work and furnishing materials a question for,
172.

See Law anp Fact. x

KITCHEN,
Is a building within Acts, 84.

LABOURER.

See Day Lazovrer.

LANCASTER.

Acts extended to, 48, 49.

Acts extended to plumbers, &c., in, 55.
LAND

Is bound as well as building, 135,
How much, is bound, 137, &e.

LAW AND FACT.

What are questions of, 295.

LAWRENCEVILLE.
Acts extended to, 49.

LEBANON.
Acts extended to, 49.

LEHIGH.
Acts extended to, 52.

LESSEES
Of coal estates, Acts extended to, 55, 87.
For years, no lien against, 87.

With right to buy in fee, have equitable estates, and are within
Acts, 94,
INDEX. 383

LEVY

On term will not pass a fee, 158.

LIEN CREDITORS.
See CREDITORS.

LIFE ESTATE.

Tenant of, could bind reversioner, 128.
And remainder-men, 128.
Not since Act of 1840, 128.

LIME MERCHANT
Is mentioned in Acts of 1803 and 1806, 113.

LOCALITY
Of building, how averred in claim, 240, &e.
See Crain.

LOT.
See Lanp.

LUMBER MERCHANT
Is mentioned in Acts of 1803 and 1806, 113.

LUZERNE.
Acts extended to, 50.

LYCOMING,
Acts extended to, 50.

MACHINERY.
Acts extended to, of coal lease estates, 55.
About mills, iron or coal mines or works, 87.

MARIETTA.
Acts extended to, 48.

MASON
Is mentioned in Acts of 1803 and 1806, 113.

MASTER MECHANIC, OR MATERIAL MAN
Has a lien, 75.
Hard to distinguish them from subordinates, who have no lien, 75,
Payment by the day to, no test, 75, 76.

MATERIALS
Need not be used, 117, &c., 131.
Are they bound if not used? 131, 132, 133.
How levied on, 133.

MATERIAL MAN

Need not be a regular tradesman, 81, &c.
Oo

384 INDEX.
MECHANICS

Need not be in regular employment to have lien, 84.

MERCER.
Acts extended to, 50.

METES AND BOUNDS
Of land bound by lien, how ascertained, 144.
Latitude allowed as to, 149.
Need not be stated in claim, 240.
But better to state them, 241.

MIDDLE MAN.

See ConrRactTor.

MIFFLIN.
Acts extended to, 50.

MILLS.
Are buildings, within the Acts, 84.
Acts extended to, of all kinds, 87.

MILLSTONES
Are within Acts, 96.

MINES.
Acts extended to, 55.

MISTAKE
In parties, when fatal, 207, 208, 212.
How far, helped by proof, 281, &c.

M KEAN.
Acts extended to, 52.

MONTGOMERY.
Acts extended to, 49.

MORTGAGEE.
May come in and take defence, 217.
See Purcuaser.

MOTION
To strike off, 260.
Favoured, 260.

MUNICIPAL LIENS.

Resemblance of, to mechanics’ liens, 163.

NON ASSUMPSIT

Is, frequent plea, 276.
Bad, in case of special contract, 276.
INDEX. 385

NON JOINDER

Of one coutractor, is matter in abatement, 206, 274.

NONSUIT.

See case of new sctre facias after, 264.
Cannot be suffered, after proceeding to compel claimant to go
on, 268.

NORTHAMPTON.
Acts extended to, 50, 53, 54.

NORTHERN LIBERTIES
Are embraced by Act of 1803, 41.

NORTHUMBERLAND.
Acts extended to, 49.

NOTE.

Taking does not prevent claim, 121.
Does not discharge lien, 189.

NOTICE.
None of lien, until claim filed, 163.
Except from house, 164.
See SuRvIce.

“NUL TIEL RECORD”
Is a bad plea, 275.

ODD FELLOWS’ LODGE,
A building within the Acts, 85.

ORDER.

Form of, in compelling claimant to proceed, 268.

ORIGIN.

’ See History.

ORIGINAL ENTRIES,
Best proof of credit to building, 280, &e.

OUT-HOUSES.
What are, within Acts, 85.
No apportionment as to, 258.

OWNER
Has no lien against creditors, 58, 59.
May purchase a lien, 60.
By Act of 1803, contract must have been with, 125.
Whether contractor is agent of, 125,
Ts surety for contractor, 191.

25
386 INDEX.

OW NE R— Continued.
Not bound, personally, 200.
Bound if he is contractor, 200.
At commencement, sufficient for claim, 214, 224.
At time work done, or claim filed, also proper, 216, 224.
Title of, as such, not necessary, 221.
Ts not a witness for co-owner, 293.
Unless at trial, he has ceased to be such, 293.
See Partizs.
See CLaim.

OWNERSHIP
Change of, does not make new commencement, 166.
Contra, in case of Sheriff’s sale, 168.
Effect of different, on right to apportion, 249, &e.
Effect of change of, 259.

PAINTER
Is mentioned in Act of 1803, 113.

PAPER HANGER
Is not within early Acts, 113.
Is within Act of 1836, 115.

PARTNERS

Taken subsequently to contract, not proper claimants, 204.
Firm name of, sufficient, 224.
Or individual names of, only, 224.

PARTY.
' Who must be, 204, &e.
Claimant must be, 204, 223.
To claim and scire facias, 205.
Whether owner and contractor must be, 205, &e.
Szmoble, they need not have been, to claim under early Acts, 205,
210.
But in practice they were, 207.
And under Act of 1836, must be, 208, 212.
Mistake as to, in claim, 207.
To setre facias, contractor must be, 207, &e.
And owner, where he is contractor, 208, e.
How, where owner not contractor, 210, &e.
Owner or reputed owner is, 210.
Act of 1836 requircs him to be, 211.
Reputed owner, where owner not known, 212.
If named and mistake in, 212.
If wrong named defence may be made, 213.
Importance of correctness as to, in case of apportionment, 214.
INDEX. 387
PART Y—Oontinued.

Owner when building commenced, is proper, 214, &e.

Semble owner, when work done or materials furnished, 216, &c.
Mortgagees may come in as, 217.

See EvipEnce.

PAVEMENT.
Curbstones for, within Acts, 101.

PAYMENT.
Mode of, no test of right of lien, 80, &c.
By the day does not prove the subordinate, 80, &c.
In lumber, does not affect right to lien, 121, 124.
Appropriation of, 193, &e.
Usual plea, 276.
Effect of plea of, 278.

PERRY.
Acts extended to, 50.

PERSONAL REMEDY.
Act of 1836, as to, 312.
Lien does not stand in way of, 312.
None against owner, unless he is contractor, 312.

PERSONALTY.
If an estate be, not within Acts, 87.

PETITION
To strike off claim, 260.
To compel claimant to proceed, 268.

PHILADELPHIA.
Act of 1803, confined to, &., 48.
Act of 1806 embraced, 48.
Law to apply to plumbers, &c., in, 54.
Mechanics in may include both work and materials, 55.

PIKE.
Acts extended to, 53.

PITTSBURGH.
Acts extended to, 48.

PLASTERER
Is mentioned in Act of 1803, 113.

PLEADINGS

Under proceedings to compel claimant to go on, 268.
Scire factas, is declaration, 274.
388 INDEX.

PLEADING S—Continued.

Non-joinder of one of two contractors, matter of abatement, 209,
274,

Demurrer allowed to claim, 274.

“No lien” bad, 274.

“Nu tiel record,” bad, 275.

Semble demurrer for variance between scire factas and claim is
good, 275.

Usual, on non assumpsit, payment, set off, &c., 276.

Non assumpsit bad, in case of specialty, 276.

Special pleas common, 276.

Instances of, 275, 277, 278.

Payment, effect of, 278.

Contractor may plead set off, 278.

Former recovery, 278.

PLEDGE.
Who may, the building, 125, &e.

PLUMBERS.
Acts extended to, in Philadelphia and Chester, 54.
And in Lancaster, 55. ;
Held not within early Acts, 113.
Act of 1831, as to, in Philadelphia, 115.
Act of 1836, as to, 116.

POLICY
Of system doubtful, 36.

POSTPONEMENT

By failure to apportion, 185.
Is to all liens, in such case, 185.

POTTER.
Acts extended to, 53.

PRESUMPTION

In favour of proceedings after verdict and judgment, 297.

PRINCIPAL
Only of each trade, has lien, 76, &c.
Not subordinates, 76, &e.

PRIORITY
Of lien, 184.

Lien has, over judgment, even for purchase money, if not entered,
184.
Lien has, over all others after commencement, 154.
INDEX. 389

PRIVY
Not within Acts, 85.
Contra, 99.

PROCEEDS
Of Sheriff’s sale, claim need not be filed against, 152, 183.
Liens payable out of, 187.

PRO RATA.
Contractor cannot divide, with mechanics, 70.
Creditor paid, if not enough for all, 185.

PUBLIC BUILDINGS
Not subject to lien, 86.

PUMP GEARING

About mills, iron or coal works or mines, within Acts, 87.

PURCHASERS
Should be protected by form of claim, 39.
Retroactive effect of Act of 1845 as to, 46.
Should inquire for liens, if house newly erected, 164.

READING.
Acts extended to, £9.

RECORD.

Claim is not, 221..

RELATION BACK.

Lien has, to commencement, 185.
Where owner of equity acquires legal estate, 184.

RELEASE
Discharges lien, 188.

REMEDY
Alone affected by Act of 1840, 42, &c.

REPAIR.
When work is only, 101, &e.

REPUTED OWNER. ‘

See Party.

RETROSPECTIVE ACTS.

See Acts or AssemBLy, 40, &.

REVERSIONERS.
Estates of, bound, under early Acts, 128.

Not since Act of 1840, 128.
26

“

y
390 INDEX.

ROPE WALK.
Claim filed against, 97.

SALE ‘
Discharges mechanic’s liens, 301.
See Suerirr’s Sauer.

SAW-MILL.

Steam engine in, is within Acts, 96.
What ground is appurtenant to, 146.

SCHOOL HOUSE
Is a building within the Acts, 84.

SCHUYLKILL.
Acts extended to, 50.
Improvements on coal lease estates in, 55.

SCIRE FACIAS.
Claim revived by, 183.
Early Acts as to, 262.
Form of, given in Act of 1836, 262.
Several, in case of apportionment, 263.
Parties to, 263.
Service of, 264, &e.

 

Is sufficient declaration, 274. , 4 h BPEL oe af é en
See Parry. fi, behets " ff
op wrens ae
SERVICE
Of scire facias, 264, &e.
SET OFF.

Debt due to contractor may be, 193.
Usual plea, 276.
Contractor may plead, 278.

SHERIFF’S SALE.
Effect of, to make a new commencement, 169.
Necessity of filing a claim after, 182.
Does six months run against proceeds of?, 182.
Discharges liens, 187, 197, 301.
Unless otherwise agreed, 302.
Stops all further proceedings, 302.
Quere, if defective title sold, 308.
Does not affect adverse title, 303.
Exemption Act, does not apply, in case of, 303.

SIX MONTHS.
When begin to run, 172, &e.
INDEX. 391

SIX MONT HS—Continued.
Is question of fact, 172.
See ConTInuUANCE.

wy
SMOKE’ HOUSH.
Semble not within Acts, 85.

SOMERSET.
Acts extended to, 50.

SOUTHWARK
Is embraced by Act of 1803, 48.

SPECIAL CONTRACT
Effect of, on right to a lien, 120.
Held, at first, did not prevent lien, 120.
Contra, afterwards, 122.
Then Act of 1845, 123.

STABLE.
Semble, not within Acts, 85.
Contra, 97.

STATEMENT

Required under proceedings to compel claimant to proceed, 268.

STEAMBOAT
Not within Acts, 95.

STEAM ENGINE

About mills, iron or coal works or mines, within Acts, 87.
To propel saw-mill, held within Acts, 96.

STONECUTTER
Mentioned in Act of 1803, 113.

STORE
Is a building within the Acts, 84,

STORIES.

Number of, how stated in claim, 245.

STRIKING OFF
Claims, 260.
How done, 260.
Saves costs, &c., 260, &e.

SUB-CONTRACTOR
Has been held to have no lien, 68, &e.
Contra, by Act of 1845, 69.
>

392 INDEX.

CG

SUB-CONTRACTO R—Continued.

Right, as against owner, restrained by chief contract, 72.
Is “substitutionary” to contractor, 73.

Does Act of 1845 apply to, 124. ,

Can pledge credit of building, 125, &c.

See Contractor.

SUBJECT
Of the lien, 131, &e.

SUBORDINATES

Have no lien, 76, &c.
SUGGESTION.

Coming in by, 270.

Mode of, 271
SUMMONS.

Scire facias, served like, 264.
SURETY.

Owner is for contractor, 191.

SUSQUEHANNA.
Acts extended to, 50.

SYDNEYVILLE.
Acts extended to, 49.

TAN-HOUSE
Is a building within Acts, 84.

TEARING DOWN

House does not discharge lien, 197.

TENANT FOR LIFE.
See Lire [stare

TENANT
Of coal lease estates, Acts extended to, 55.
See Estate.

TEN PIN ALLEY
Is within Acts, 100.

THEATRE
Is a building within the Acts, 84.
Stage and scenery of, 96.

TIME.
With reference to, whether work is done in erecting and construct-
ing, 111.
INDEX. 393

TI ME— Continued. Aen ISB

What length of, allowed after main work, 111.
Statement of, in claim, 228, &e.

TIOGA.’
Acts extended to, 50.
TOWNS
Near Pittsburgh, Acts extended to, 49.
TRADE.
Need net have regular trade to be within Acts, 81, 82.
TRESPASSER.
Building by, not within Acts, 129, 159.
TRIAL.

See Evipence.
See Nonsuir.

UNION

Acts extended to, 50.
USE

Of materials, not necessary to give lien, 117, &c.
VARIANCE.

Demurrer for, between sctre facias, and claim, 275.
Between allegata and probata, 280.

VENANGO.
Acts extended to, 50.

VERDICT
Does not find commencement ef building, 297,
Certificate for defendant in, not allowed, 297.
Effect of, 297.

WAGON SHED
Is within Acts, 97.

WARE HOUSE
Is within Acts, 84.

WARREN.
Acts extended to, 50.

WASH HOUSE
Is within Acts, 79.
When? 99.

WASHINGTON.
Acts extended to, 50.
394 INDEX.

WAYNE.

Acts extended to, 52.

WEST CHESTER.
Acts extended to, 49.

WESTMORELAND.

Acts extended to, 53.

WHARF BUILDERS
Ave within Acts, 86.

WILKINSBURGH.
Acts extended to, 46.

WITNESS.

Contractor is not, for owner, 292,

Effect of release upon, 293.

Contractor is, for claimant, 293.

And before Auditor, 293.

Owner not, for co-owner, 293.

Owner, at trial, not for owner when claim filed, 293.
Owner before may be, if not at trial, 293, 4.

WOOD HOUSE
Is within Acts, 97, 99.

WORKMEN.

Subordinate, have no lien, 76, &c.

YORK.
Acts extended to, 49.

THE END.
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