Peter Kees vs. Martin J, Kerney, 5 Md. 419

Tuck, J., delivered the opinion of this court. This is a proceeding under the mechanics’ lien laws, in force in the city of Baltimore. The claim filed before the attachment was issued is not in the record. Consequently we cannot discover whether the alleged debt was contracted by the owner with the plaintiff, or was for work and labor or materials furnished by some person employed, not by the owner of the property, but by the builder. In the first case the claim would show a contract or promise, express or implied, on the part of the defendant, to which non assumpsit would be a proper plea.

In the latter case the law would not raise an assumpsit as between the parties, but the plaintiff might, nevertheless, enforce his lien against the property, under the 9th sec. of 1838, ch. 205, by showing that he had done work, or furnished materials for the building, at the instance of the contractor. Compliance with the provisions of the act would entitle him to recover, although the defendant had not promised, and thereby made himself answerable for the claim. The claim filed performs the office of a declaration, when made as required by the act of Assembly.

The sci. fa. notifies the party and gives him an opportunity of showing cause against enforcing the lien. In some cases, as we have said, the general issue in assumpsit may be relied on; but we do not perceive that this cause was such an one as authorised that form of defence. The defendant professes to answer the sci. fa. by a denial that he had undertaken or promised, as alleged against him, when no promise is averred, and it does not appear that there was any express or implied.

The act of 1845, ch. 287, provides that these acts shall be considered as remedial, and as if conferring general jurisdiction, but they do not dispense with the forms of pleading recognized in such courts when administering remedial laws. In the only case in this State, under this act, which has come under our notice, (Carson vs. White, 6 Gill, 17,) the Court Of Appeals have indicated with some particularity the manner of stating the plaintiff’s claim.

The defendant has a right to a specific account of the matters for which the claim may be filed, before he can be required to plead; and we think there should be mutuality in conducting the cause. In that case the pleas were special, and notified the opposite party of the defence on which the demand was resisted. Here the plea takes defence on a ground wholly immaterial to the plaintiff’s right to enforce his lien. As far as this record discloses, any other plea in actions ex contractu, would have answered the demand as well as the one employed. Judgment reversed and procedendo awarded.