NOYES v. FRITZ, 2 Miles 162

THIS was a scire facias on a mechanic’s claim against a building, duly served and returned by the sheriff, under the 18th

section of the act of 16th June, 1830, relating to the lien of mechanics (Stroud's Puri. tit. Mechanics' Lien), On the return of the writ, one E. F. (other than the plaintiff,) filed a suggestion in this cause, that he had a claim for work and materials against the same building, describing it, under the 19th and 20th sections of the act, which are as follows : “ 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 on the defendant, to appear and plead thereto as in other actions.

Section 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 suggestion after due notice, judgment shall be entered for the claimant filing the same, and the amount of the claim shall be ascertained as in other cases.” E. F. thereupon moved for a rule on the defendant to plead to his suggestion, which was granted.

The form designated’by the court, to be entered of record, as illustrative of the practice under the act in such cases, is as follows: “A. B.h v. > To be entitled in the cause. C, D. ) On the day of, &c. came E. F, into the said court, and suggested that he, the said E. F. on the day of, &c. filed in the said court, according 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 facias, and against the said C. D. as owner of the said building, (or as reputed owner, as the case may be.) and against G.

II. as contractor, &c. (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 E. P. 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 €.

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.” Order accordingly.