BARNES against WRIGHT, 2 Whart. 193

The opinion of the Court was delivered by Huston, J. The act of 1806 which gives the lien to mechanics and material men, does not prescribe the mode of enforcing such lien. The 2nd

section of the act of 28th March 1808 provides, that a person having a lien filed according to the provisions of the act of 1806, 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 facias against the debtor and owner of the building, 01 their executors or administrators; and where the proceeding is by scire facias, the writ should be served in like manner as a summons on the persons named therein, if they can be found within the county, &c.; or if they cannot be found in the county, and are not resident therein, by fixing a copy of the writ on the door of the building, &c.

This act contemplates that there may be a contractor, who has undertaken to complete the building; who has agreed for the materials and the work, and who is called the debtor, and may be the owner of the building ; who is not personally or generally the debtor; but whose house may, by observing the provisions of those laws, be liable for the amount due to the mechanics who built it, or to those who furnished the materials. 4 There is great reason why the contractor should be made a party to the proceeding on sci. fa., though the judgment and execution on it can only afiect the house.

He alone knows the persons who supplied the materials, 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. Justice 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 the 30th of March 1831, (§ 6,) provides, that “it shall and may be lawful for the person so finding 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 the claim thereof an apportionment of the amount, &c.; and each of the said houses shall be subject to the payment of its proportional share of the debt contracted.” There is nothing in this act contrary to,the express provisions of the former; nor do I see any reason why, under it, the debtor as well as the owner of the building should not be brought before the Court on the sci. fa.

There may be cases in which it may be immaterial to the owner, whether the judgment on a sci. fa. on a lien apportioned among several houses, is joint against all or several against each for its apportionment; and where one or more of the buildings has been sold, it may be most material that each shall be liable for its own share.

The act however is express, that each of said houses shall be subject to the payment of its apportioned share of the debt contracted; and it is not easy to see how this can be done on a joint sci. fa.\ it was not, however, attempted in this case ; for the judgment is joint against both for the whole amount. • JThe whole testimony, and claim and verdict, present a curious spectacle ; the claim is for work done between the 29th of April and the 23rd of May 1835.

The proof, all the proof, and the only proof was, that the plaintiif agreed to work by the day and at two dollars per day; the testimony is, that he worked about three weeks ; he could not, by his claim or proof, have worked more than twenty or at most twenty-one days, which would be .forty-two dollars; yet his claim is fifty-six dollars, and he gave credit for thirteen dollars; and it would seem, that there -was proof of payment to him of eighteen dollars. Yet; without any proof to support it, he brings witnesses to prove his work worth sixty dollars ; and he has measurers who make it worth as much.

Proof was given, that a witness swore before arbitrators, that he served on Miss Barnes a written notice to attend a measurement on a Thursday, and nothing done on that day: he then served a parol notice to attend on Saturday. This parol notice was served not on Miss Barnes,'but on a servant girl. Now it has not yet been decided, that a parol, notice given to any but the party, is good; and I hope, it never will l)e so decided.

All this evidence of estimated value, and measurement and notice was worse than irrelevant, unless the plaintiff" had given some evidence of a contract other than by the day; it was directly calculated to lead away, the jury from a trial of the cause on its real merits. In justice to the court below, however* I must state that none of the evidence except that of Jones to prove the'notice, was objected to. Judgment reversed.