Keppel against Jackson, 3 Watts & Serg. 320

The opinion of the Court was delivered by Huston, J. This was a feigned issue, to try whether the lien of several mechanics, who had built a steam-mill in Reading, covered only the lot on part of which the building was erected, or whether it extended to half of an adjoining lot. Between the building and this half lot was a space of 12 feet, not covered by any building. The first question was as to the admission of George R. Frill as a witness for the mechanics.

At the time the building was begun, and until nearly completed, Frill was a part owner of the lot and building, and the mechanic’s liens were filed against George Frill and Milo H. Ferry. Frill sold out his interest to Ferry; but as he was liable for all debts contracted while he was a partner, he was objected to, because, if the half lot was held bound, its price, viz. $500, went to discharge so much of the mechanic’s liens, and, of course, to discharge Frill of so much. The adverse claimant' was a judgment creditor of Ferry, on a judgment obtained after Frill had ceased to be a partner.

On the witness being rejected by the court, some of the mechanics released him; but others, whose claim exceeded $1000, refused to release him; and he was again rejected. Clearly, he was interested, and rightly rejected. This alleged error was not pressed here. The next error assigned was to the charge of the court. The Act of 16th June 1836, relating to mechanics’ liens, provides, in

section 2d, as follows: “ The lien of such debt shall extend to the ground covered by such building, 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 of such building: the quantity and boundaries whereof shall be determined as follows:

Section 4. The owner may define in writing, and cause to be entered in a book, to be kept by the prothonotary, the boundaries: and this is obligatory on all persons.

Section 5. In default of such designation, the court, on petition by those interested, may appoint competent and skilful persons as commissioners to designate the boundaries.” In the succeeding sections, minute directions as to the appointment and duties of such commissioners, and their powers, are given.

Section 9 provides, that if commissioners have not been appointed, and the boundary in no way designated, and the property is sold on execution, the court, preparatory to the apportionment of the proceeds, may appoint an auditor, or on the application of any of the parties, may direct an issue. In this case, the previous designation of boundaries was not made in any of the modes prescribed by the Act, and an issue was directed. The court, after stating distinctly all the facts and evidence, say, “ It is admitted the lien covers the entire lot of 60 feet, on which the building is erected.

The contest is as to the contiguous half lot. The mechanics claim it all; the creditors, by judgments, claim it all. You have heard all the evidence, and have viewed the ground. Was the half lot necessary for the convenient use of the building for the purposes for which it was erected? If so, you will find for 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.” To understand this last sentence, it must be mentioned that the levy was on a steam saw-mill, and 90 feet front. After several sales, set aside for different reasons, the last sale was of a steam mill, and 60 feet front, and a half lot, 30 feet front; and this half lot sold for $500, and the mill $1400 — being more than the property had brought in any other mode of selling. There was no objection to the mode of selling in two parcels, either in the court below or here.

It is probable it was by an order of the court, or consent of the parties. The objection to the above opinion of the court cannot be sustained. The charge was agreeable to the words and spirit of the law; and, in fact, in the words of one of the sections; and the judge substituting “ necessary and convenient use,” for the words “necessary for the ordinary and useful purpose of the building,” scarcely varied from the law; if there is any variation, it was in favour of the extent of the lien to the half lot.

The argument here, as is too often the case, was rather against the finding of the jury, than the charge of the court. It would save time and trouble, if all gentlemen of the bar would recollect that we cannot reverse on account of the finding of a jury; a motion for new trial in the court which tries the cause, is the only redress for that. Judgment affirmed.