
    JANUARY T M, |
    Thomas Andrews v. Asahel W. Washburn.
    The act for the benefit of mechanics, approved the 20th day of February, 1840, relates only to contracts made subsequently to its date.
    Under the statute for the relief of mechanics, approved 15th February, 1838, a bill in chancery to enforce a mechanic’s lien, alleging a contract to perform work on certain buildings, the performance of the work according to the contract, and the institution of a suit at law, for the price of the work, within six months from the date of the contract, and the creation of the lien by operation of law, is not demurrable, but will be sustained, and the lien enforced-
    Error from the Circuit Court of Yazoo county.
    This is a bill in equity, filed in the Circuit Court of Yazoo county, to enforce alien which the complainant, as a mechanic, claimed upon the property described in the bill.
    The bill charges, that, during the year 1839, the complainant and one Morris were partners in the carpenter business; that the defendant, in the month of January, 1839, employed them to perform mechanics work upon certain buildings, on lot No. 252, in Yazoo City ; that they shortly afterwards commenced the work, to wit, in the latter part of January, 1839, or about that time, and furnished the materials at the defendant’s request, and completed the work the latter part of April, 1840, according to their contract, and the work was received by said Washburn ; that on the 2d of August, 1840, less than six months from the commencement of the building or work, complainant and his partner commenced suit in the Circuit Court of Yazoo ; and his partner having died, complainant, as surviving partner, recovered a judgment against said defendant, for the'value of his work and materials, to wit, for the sum of $300 ; that the defendant was in possession of the lot, at the time the contract was made, and that it was then unincumbered by liens ; that now he is unable, by execution, to collect said payment, and prays that he may be allowed to enforce his lien as a mechanic ; that the buildings may be ordered to be sold, &c. A record of the judgment is exhibited with the bill. The defendant demurred to the bill, the Circuit Court sustained the demurrer, and the complainant brings the case up by a writ of error.
    
      George S. Yerger, for complainant in error.
    1. I did not argue this cause below, and would have been (had I not been informed) at a loss to know upon what ground the bill was dismissed. I am told that the Judge decided it upon the erroneous supposition that it was governed by the act of 1840. The act of 1840 has nothing to do with it; that act was passed February, 1840 (see Acts of 1840, ch. 21, p. 58), and only gives liens to mechanics upon contracts made after its passage, and directs the particular mode in which the lien and contracts thereby given shall be prosecuted. We admit we have no lien or right whatever by the act of 1840.
    The contract and lien claimed by complainant, originated long before the act of 1840.
    The contract was made in 1839, and*work completed in 1839, and the lien given is claimed by virtue of the act of 1838.
    By that act' (see H. & H. 378), the property, house, store, &c. is declared to be subject to the payment of the mechanic’s work and materials. A special charge or lien is created for the specific purpose of paying the mechanic, which could only be enforced by bill in equity, as a payment at law would only establish the amount due, and if other incumbrances intervened, the lien would only take effect from the judgment. Hence, the mechanic, when he complied with the provisions of the law, which will presently be adverted to, if he was not paid, was forced to file his bill to enforce the lien from the time it took effect.
    The law requires, that, if the contract is written, the mechanic shall have the lien by recording it in the clerk’s office ; and if it is not in writing, then that a suit for the same should be commenced, by capias ad respondendem, in the . Circuit Court, within six months from the commencement of the work or building.
    The bill avers the work was commenced some time the last of January, or thereabouts, and that he commenced his action within six months from the time it was commenced, and that he performed it according to contract.
    
      The statute must be liberally construed in favor of the mechanic. His claim is favored in law. Buck v. Brian, 2 How. 874, where the lien was enforced by bill in chancery.
    
      2. Andrews having the lien, could enforce it by bill in chancery in the Circuit Court, as the amount was under five hundred dollars, that Court having equity jurisdiction for sums under $500.
    Pugh, for defendant in error.
    This bill was filed by the appellant Andrews, against the defendant Asahel W. Washburn, under the provisions of the statute passed in 1840, for the benefit of mechanics. It appears from the bill, that in January, 1839, the said Andrews and one Morris contracted with the defendant to repair certain buildings in Yazoo City; that the complainant and the said Morris completed the repairs according to their contract, in the month of April, 1839 ; that on the 2d of August, 1839, the complainant and the said Morris brought their suit at law, to recover of the said defendant the amount of their bill for repairs, and on the 20th of November, 1840 (the said Morris having died in the meantime), the said Andrews, as surviving partner, recovered a judgment against the defendant for said repairs ; on the 26th day of April, 1841, the appellant filed this bill in the Circuit Court of Yazoo, to subject the said buildings to the payment of said bill of repairs, to which the appellee demurred, and assigned for cause that said work was completed in April, 1839, as shown by the bill, and the bill was filed in 1841 ; that payment for said work was to have been made more than twelve months prior to the filing of this bill.
    Upon the hearing of which, his Honor, who tried the cause below, sustained the demurrer, and ordered the bill to be dismissed.
    To reverse which decree, this writ of error is brought.
    The only question presented ^to the Court in this cause, is, did the complainant Andrews file his bill in time to preserve the statutory lien given him, and has he brought himself within the provisions of the statute under which this bill was filed ? I think not. In the bill there is no time stated at which this bill for work was to have been paid, nor does it state that it was filed within the time prescribed by the statute ; yet there is sufficient on the face of the bill to show that it was not brought within twelve months from the time he was to receive payment for his work. The bill should have shown that it was brought within twelve months from the time payment was to have been made by the contract. This was necessary to enable him to recover under the statute, and not having alleged that fact, his bill cannot be sustained. But I think it is plain, from the bill, that the complainant did not file this bill in time to protect himself under the statute ; for it will be borne in mind that he brought his suit at law to recover this bill of work on the 2d of August, 1889, and recovered a judgment; at which time the account must have been due, or he could not have obtained a judgment, which the bill alleges he did. This bill was filed in April, 1841, nearly two years after bringing the suit at law. The statute gives a lien on the buildings, if the contract be recorded, or suit brought in twelve months from the time the work was to be paid for ; and this suit must be by bill or petition. If the complainant seeks relief under the statute, he must comply with the requisitions thereof. Having failed to do this, his lien is gone, and the statute ceases to afford him that relief which it so kindly tendered, but which he neglected to receive upon the terms offered ; nor will his suing at law within twelve months from the date of payment, protect him or save his statutory lien. This lien is a conditional one, and that condition is, that he bring his suit by bill or petition, within twelve months, &c. Sheet Acts 1840, p. 58. For these reasons, I think there is no error in the judgment of the Court below, and that it should be affirmed.
   Mr. Justice Thacher

delivered the opinion, of the Court.

Thomas Andrews, complainant, filed his bill upon the chancery side of the Circuit Court of Yazoo county, setting,forth, that in January, 1839, the complainant, together with his partner, Levi L. Morris, contracted with the defendant, Asahel W. Washburn, to repair certain buildings in Yazoo City, which work they completed, according to their contract, in the month of April of the same year. He further sets forth, that upon the 2d day of August, 1839, a suit at law was instituted by himself and his partner against the defendant in this bill, to recover the value of their said work, and that, his partner having deceased pending that suit, as survivor of the co-partnership, opon the 20th day of November, 1840, he recovered a judgment for the amount claimed. He further sets forth, that the execution issued upon this judgment could not make the amount recovered, and that this bill is filed to enforce the lien which attaches to him as a mechanic. The bill asserts, that the suit at law was instituted within six months from the commencement of the work.

It seems to have been supposed by the counsel for the defendant in error, that this bill was filed to assert a lien attaching by virtue of the mechanics law of February 20, 1840. That law has relation only to contracts made subsequent to its date. The contract in this instance bears date January, 1839, and the case must be considered by the rule of the statute of February 15th, 1838, for the relief of mechanics.

The bill under view sets forth whatever is necessary under this statute, a contract by mechanics to perform work upon certain buildings, the performance of the work according to the contract, the institution of the required suit at law, within six months from the date of the commencement of the work, and the creation of the lien by operation of law. The case of Buck v. Brian, 2 How. 874, where a lien under the statutes of 9th February, 1821, and December 6th, 1830, for relief of mechanics, was sought to be enforced, recognizes a resort to chancery for the enforcement of liens of the kind now under contemplation. We therefore decree that the demurrer to this bill was improperly sustained.

The decree of the Court below must be reversed, and the cause remanded for further proceedings.  