The facts were as follows: Plaintiff, a dealer

not fit to be put in charge of such work, we | B. Dick, owner, and John McLaughlin and can find no testimony sustaining either allegation. Albert J. McLaughlin, contractors, for marble The learned counsel for defendant in error al- furnished and stonework done towards the erecleges that Wymond was incompetent, but he does tion of a building on Sixteenth Street near Jefnot refer to any testimony in support of that ferson in the city of Philadelphia. allegation. He does, indeed, contend that proof of Wymond's unfitness is found in his own tes-in stone, on March 4, 1878, made an agreement timony, but a careful examination of that and in writing with John and Albert J. McLaughlin, other testimony proves quite the contrary. He contractors, to furnish the cut stonework for a testifies to a large experience in the business of house which they had contracted with Walter B. building iron bridges, and bridges of iron and Dick, to erect on his premises. In this agreewood in combination, and he was engaged upon ment it was stipulated that the stonework was to some of the largest and most important bridges be furnished in accordance with plans and speciin the country. He could not conduct that kind fications prepared by the architect in charge of of work without acquiring much experience in the building, J. K. Yarnall, and that the price of the resisting powers of wood and iron when sub-the work should be $1150, payable by instaljected to heavy pressure. There was actually no ments as the work progressed. Plaintiff comaffirmative testimony of any want of skill or pleted his work and received two payments on knowledge upon these subjects, and not a scrap account, leaving due him on account of the of evidence that the company had the slightest stipulated price $230. knowledge of any want of capacity on his part to perform the work assigned to him. In the absence of any testimony on this subject, we think the learned Judge of the Court below was in error in submitting the question to the jury. We think the third, fourth, and fifth assignments of error are sustained, and on these the judgments are reversed, and writs of venire facias de novo awarded.

Opinion by GREEN, J.

On Feb. 12, 1879, plaintiff filed the claim in controversy for the balance due him, together with sundry small items aggregating $35.06, as set forth in the bill of particulars, of which the following is a copy:

1878.

Philadelphia Jan. 31, 1879.
Messrs. J. & A. J. MCLAUGHLIN,

Bought of WILLIAM Gray.
To stonework of W. B. Dick's
house, 1524 North 16th, above
Jefferson, as per contract.

To 21⁄2 hrs. man rubbing bricks on
wheels @ $1 00

To 36 buff enam. bricks @ 8 cts.
To 12 hrs. man rubbing on wheel,
@ 100

$1150 00 250 2 88

1 50

66

3.

9.

To 21 enam. buff brick @ 8 cts.
To 111⁄2 hrs. of man rubbing on
wheel @$1 00

I 68

II 50

$1185 06

The Act of 24 March, 1849 (P. L. 675), relating to mechanics' liens.in the city of Philadelphia and county of Chester, provides, inter alia, that "where the work 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 ":

Held, that the Act, being local and limited to a favored class, is to be strictly construed as to the persons and subjects to which it relates.

Held further, that said Act includes contractors only, and not sub-contractors.

The reason which gives rise to the distinction, is that in the case of the sub-contractor, the agreement is not made with the owner himself, and it is therefore his right to know the particulars of the claim, so that he may satisfy himself that the building is bound for no more than the

work done and materials furnished.

Error to the Common Pleas No. 2, of Philadelphia County.

1878.
Apl. 23. By cash
May 25.

Commenced Mar. 5, 1878.
Finished Sept. 14, 1878.

On the same day a sci. fa. issued in said claim, which being returned served as to Dick, owner, and nihil habent as to J. McLaughlin and A. J. McLaughlin, contractors, the defendant, owner, was ruled to plead. Dick, the said defendant, thereupon obtained a rule to show cause why the, first item in the bill of particulars, to wit, "To stone-work of W. B. Dick's house, 1524 North 16th above Jefferson, as per contract, $1150," should not be stricken out. This rule was made absolute April 17, 1880.

This was a scire facias on a mechanic's claim for $265, filed by William Gray against Walter] On the same day the Court refused a motion

made by plaintiff to strike out of his claim all the items except the first. Thereupon plaintiff took this writ, assigning for error the action of the Court in striking out the first item of the claim, and in refusing plaintiff's motion to withdraw and strike out the remaining items.

the lumping charge was under the authority of Shields v. Garrett (5 WEEKLY NOTES, 120), in which it was decided, notwithstanding there was a date given to the lumping charge, that where such a charge was one of a series of items, all of which had their appropriate dates, it was not a

M. Hampton Todd and J. R. Booth, for plain-sufficient fulfilment of the conditions of the Act tiff in error.

to state the times when the whole work was be

The law as it now stands in Philadelphia pro-gun and finished. tects all classes of material men and mechanics. The Act of June 16, 1836, gives a lien to the contractor and sub-contractor when there is no special contract. The Act of 1845 (Purd. Dig. 1027, pl. 19) gives the contractor a lien where he does the work under a special contract for a stipulated sum. And finally, the Act of March 24, 1849 (Purd. Dig. 1034, pl. 45), extends this lien to the sub-contractor in Philadelphia and Chester counties, by providing that it—

"shall be lawful for any mechanic or material man in the city or 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 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. ""

This claim complied with the requisites of this Act. The work was done, and the materials furnished by contract for a stipulated sum."

Shields v. Garrett (5 WEEKLY NOTES, 120), relied on by defendant, is in our favor, since it recognizes a claim filed in accordance with the Act of 1849 as valid. In that case the lump charge was put under one date, and the statement of the beginning and ending of the whole work, including all the other items of the bill. In this case the lump charge has separate and independent dates for the commencing and finishing of the work under the special contract.

As to the second assignment of error, which raises the question as to our right to withdraw or strike out certain items of the claim, it would appear reasonable that if the defendant, by adverse motion, could strike out an item of the claim, the plaintiff could voluntarily renounce and withdraw one or more items, and this view would seem to be strengthened by the Act of 11 June, 1879 (P. L. 122), authorizing amendments to mechanic's claims in any stage of the proceedings "conducive to justice and a fair trial upon the merits."

John M. Thomas, for defendant in error.

Besides the first, neither the fourth nor seventh item has any date attached. The words " commenced March 5, 1878. Finished Sept. 14, 1878," might then refer to any one of these items.

The action of the Court below in striking out

The reasons given by the Court in Russell v. Bell (8 Wr. 47), and Lee v. Burke (16 Sm. 336), for holding that the Act of 1845 did not relieve sub-contractors from the provisions of the Act of 1836 with regard to itemizing their claims, hold good for a similar construction of the Act of 1849. The language of the former Act is quite as general as that of the latter. And it is fair to suppose that if, after the decision in Russell v. Bell, the Legislature had intended to change the law as laid down in that case, it would have said so in positive language, and not have left it to implication.

The Court had no power to strike out the items according to the plaintiff's motion, as more than a year had elapsed since the lien had been filed.

Russell v. Bell, supra.

The Act of 1879 not being retroactive, did not remedy the difficulty.

Sutton v. Clark, 7 WEEKLY NOTES, 437.
Ashman v. McIlvaine, 8 Ibid. 309.
Sparr v. Walz, 9 Ibid. 64.

February 7, 1881. THE COURT. A supplement to the Act of 1836, relating to mechanics' liens, provides: "It shall be lawful for any mechanic or material man in the city or 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 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." (Act of March 24, 1849, P. L. 675.) The plaintiff submits that the claim filed complied with the requisites of this Act. It was a literal compliance, and the sole question is whether the plaintiff comes within the intendment of the statute.

The contract was not made with the owner, he was not a party to it, and presumably knew nothing of it. Such a contract would not be evidence of the sum which the owner ought to pay, nor of the amount of the claimant's lien on the building. The mechanics' lien laws have not invested contractors with power to obtain work and materials and bind the building for a larger

sum than such work and materials are worth. As a general rule, the claim shall set forth the nature or kind of the work done, or the kind and amount of materials furnished, and the time when the work was done or materials were furnished, with reasonable certainty. This is the mode prescribed for giving the owner of the building information of the grounds of the claim; and, formerly, it had to be observed by contractors as well as by claimants with whom the owner had no contract relation.

ant between March 5 and September 14, 1878. What light does that give one who is called on to pay a debt owing by another man? It is sufficient for the victim to see the amount demanded, but not to see that it is right. Unless imperatively required by the words of a statute, it should not be made an instrument of rank injustice. Not only is the right of lien a privilege to a favored class of creditors in addition to all remedies common to other creditors, but this supplement is local, limited to two counties. Therefore, by universal rules, it must receive a strict construction as to the persons and subjects to which it relates. Where a mechanic or material man contracted with the owner, and the value of the work or materials can only be ascertained by measurement, or is stipulated in the contract, it is enough to give the aggregate price with the dates of commencing and finishing. There is reason in that the parties stand equal. In such case, the contractor is within the words and intendment of the statute. Sub-contractors and persons who work for or sell materials to contractors are not necessarily included in the language of the statute, and we think are clearly without its intendment.

It is unnecessary to remark upon the question raised by the second assignment. If the motion to strike out was for the purpose of validating the claim under the alleged contract, it was rightly refused. (Fahnestock v. Wilson, 9 Pitts. L. J. 81.)

The Act of 1845 (P. L. 538) provided for the case of a special contract made by a mechanic with the owner for the erection of a building or a part thereof; and in such case, it is not required to set out in the claim the nature or kind of work, or kind and amount of materials furnished, for there is no reason for application of the general rule. (Young v. Lyman, 9 Barr, 449.) Each party to the contract has knowledge of the claim under it, and the reason for furnishing particulars does not exist. That supplement declares that the Act of 1836 shall "extend to and embrace claims for labor done and materials furnished and used in erecting any house or other building, which shall have been or shall be erected, under or in pursuance of any contract or agreement for the erection of the same;" but, notwithstanding its general terms, it was decided that it did not place a sub-contractor on the same footing with the contractor: he continued bound to set forth particulars in his claim as directed by the Act of 1836, or his lien would fall. But for the special circumstances, this writ of (Russell v. Bell, 8 Wr. 47; Lee v. Burke, 16 error would be quashed, even without motion. P. F. S. 336.) Among the reasons given in Consent of parties will not induce review by those cases for strict construction are: The sub-piecemeal. However, we were satisfied that contractor is entitled to no more than the fair a decision, either way, would end the dispute, market value of the work done and materials and consider the case as if the claimant's motion furnished on the credit of the building, and had been granted by the Court below. hence the owner should be informed by the claim Judgment affirmed. filed as to the particulars of the claim, that he Opinion by TRUNKEY, J. may make the necessary inquiries to satisfy himself of its justice as a lien on his property. The agreement between the contractor and sub-contractor is not the measure of the owner's Jan. '80, 248. responsibility; his building is bound for no more than the value of the work done and materials furnished by the sub-contractor, and he has a right to insist on compliance with the requisites of the Act of 1836.

Yeager v. Fuss.

January 18, 1881.

Errors and appeals-Practice-Assignments of error-Rules of Supreme Court concerning.

Every reason given for the distinction of the Where an assignment of error is to the admission of contractor under the supplement of 1845, applies testimony, the specification must, in accordance with Rule in full force to the supplement of 1849. If the XXIV. of this Court, quote the full substance of the bill of exceptions or copy the bill in immediate connection latter includes only those who contract with the with the specification; and where the face of the bill of owner, it harmonizes with the previous legisla- exceptions discloses no exception to the admission of the tion, and wrongs nobody. But if it embraces sub-testimony complained of, a general exception at the end contractors, the owner of the building in this case has all the particulars he is entitled to, namely, the contract price which the contractor agreed to pay for stonework done by the claim

of the bill will be held not to apply to a ruling which does mission. It is not sufficient that the bill of exceptions not appear to have been excepted to at the time of the adshows that an objection was made; it must also appear that an exception was taken at the same time."

Error to the Common Pleas No. 3, of Phila- | have been excepted to at the time of the admisdelphia County.

This was a proceeding under the Act of April 3, 1830, before Alderman Beitler, brought by John Fuss, landlord, against J. Henry Yeager, tenant, to obtain possession of the demised premises on the ground of non-payment of rent. Judg ment having been given for the plaintiff by the alderman, the defendant appealed. Upon the trial, the defendant testified, that, when he went into possession, and for two or three months thereafter, he had possession of certain beer vats, but that afterwards he was evicted from them by the landlord. Plaintiff was then offered in rebuttal to prove that the lessee was informed that the vats in question were exceptions out of the lease. The bill of exceptions at this point read

as follows:

The counsel for the said J. Henry Yeager objected, and the evidence was admitted by the said Court on the ground that, as under the evidence of the said J. Henry Yeager there is an ambiguity in the lease, it is admissible: First, to explain the ambiguity; second, to contradict the evidence already given by the said J. Henry

Yeager.

The only exception on the face of the bill was the usual general exception at the foot of the bill, that "the counsel for J. Henry Yeager did then and there except to the aforesaid opinion of the said Court."

The verdict and judgment were for the plaintiff. The defendant sued out this writ. The assignments of error were as follows:

(1) The learned Court erred in admitting parol evidence of John Fuss to contradict or vary the terms of the lease executed between the parties on the 14th day of September, 1870. (2) The learned Court erred in admitting proof of conversations between the parties as to what would go or pass under the lease in question to Yeager a day or two before its execution and in contradiction of its terms.

Leonard R. Fletcher (C. F. Erichson with him), for plaintiff in error.

D. W. Sellers, for defendant in error.

January 31, 1881. THE COURT. The assignments of error are not according to the rule, which requires that, when the error assigned is to the admission or rejection of evidence, the specification must quote the full substance of the bill of exceptions or copy the bill in immediate connection with the specification. On the face of the bill of exceptions, though there appears to have been an objection to the admission of the evidence complained of, there is no exception; and the general exception at the end of the bill cannot apply to a ruling which does not appear to

sion.

PER CURIAM. Judgment affirmed.

[See Dietrich v. Addams, 9 WEEKLY NOTES, 492.]

Common Pleas—Law.

C. P. No. 1.

Prichett v. Moss.

March 5, 1881.

Practice-Appeal from magistrate-Affidavit of defence law-In an appeal from a Magistrate's Court defendant is not bound to file an affidavit unless plaintiff puts something on the record showing his intention to ask for judgment for want of an affidavit of defence.

Rule for judgment for want of an affidavit of defence.

In January, 1881, plaintiff issued a scire facias out of a Magistrate's Court for the purpose of reviving a judgment obtained before Alderman Bonsall in 1867. The scire facias being properly served, judgment was duly revived with costs and interest to date; whereupon defendant took an appeal to this Court.

Plaintiff entered his appearance, and without filing any instrument of writing, or making any averment, asked for judgment for want of an affi

davit of defence.

Carty, for the rule.

This case should be governed by the same rules and the same laws as if the scire facias to revive had issued out of this Court; hence plaintiff is entitled to judgment unless defendant files an affidavit of defence.

J. A. Abrams, contra.

The appeal removes the case from the Magistrate's Court for the purposes of review and retrial; the proceedings are de novo, and plaintiff is bound to take the initiative.

The scire facias issued out of the Magistrate's Court cannot be regarded in the same light as a scire facias issued out of this Court, because the former is not a court of record. This distinguishes the present case from the one where a judgment is transferred from one Court of record to another, in which case an affidavit of defence must be filed in answer to a scire facias to revive. It cannot be argued that plaintiff intended to treat the transcript of the magistrate's docket as a scire facias issuing out of this Court, for to do this would require some positive act on his part. The transcript filed by defendant, and the

affidavit annexed thereto shows that it was filed | from or through the defendant in the execution, for the simple purpose of appeal.