
    JOHN E. NAYLOR, DEFENDANT IN ERROR, v. FERDINAND O. SMITH, BUILDER, AND ANDREW R. STEVENS, OWNER, PLAINTIFFS IN ERROR. 
    
    
      
      This dissenting opinion of Mr. Justice Collins, in this case, was received by the Reporter too late for insertion in 34 Vroom. It should have followed the opinion of Mr. Justice Garrison at page 599.—Rep.
    
   Collins, J.

(dissenting). It is not disputed, and seems-indisputable, that, under our revised “Act concerning set-off” (Gen, Stat., p. 3109), a legal demand against a plaintiff,, though held by assignment, may normally be set off in an action at law brought against the assignee. But an exception-is now declared in case the plaintiff avers that he has a lien under the Mechanics’ Lien act, as subsisting when this controversy arose. Gen. Stat., p. 2063. In other states where there is a statute of set-off the courts have uniformly applied it in a mechanics’ lien suit without express provision to that effect in the statute giving the lien. 15 Am. & Eng. Encycl. L. 120; Phil. Mech. L., § 423; Bois. Mech. L., § 589. Leading cases are Crogan v. McMahon, 4 E. D. Sm. 754; Gable v. Parry, 13 Pa. St. 181. Our Mechanics’ Lien act is supposed to be sui generis, and these decisions therefore not helpful. I find in it nothing to bar a set-off It may be conceded that its general purpose is to provide for suit upon a debt for which a lien exists; nevertheless, it is the court’s duty, on principle, to construe it in harmony with the common law,and with statutes in pari materia. The suit authorized is, as against the builder, an ordinary common law action. Its character is not changed by engrafting on it a lien. Tomlinson v. De Graw, 2 Dutcher 73. By express provision of the act, in its nineteenth section, the declaration is framed against the builder alone, the practice, proceedings and pleadings thereon are conducted and the judgment is entered as in-suits to recover money due on contract, and the defendants-have any defence or plea that might be had by the builder to-any action on the contract, without the act. Whether the owner alone may plead the builder’s set-off need not now be considered. The right of the builder to do so rests securely on the act concerning set-off. Both statutes were embraced in the general revision of 1874 and are clearly in pari materia. It has not been supposed, hitherto, that the existence of a lien was essential to jurisdiction. The uniform practice at the Circuits has been to allow general judgment for more than the special judgment or when no lien at all was proved."

If the suit must be limited to a debt for which a lien exists or is claimed, that is no reason why a plaintiff should be protected against a set-off, for fear perchance that he may have other claims against the same debtor. It often happens that the same person has several causes of action that cannot be joined in one suit. But I will not concede the limitation. I see no technical objection to even joining in the suit distinct causes of action and framing the averment of lien according-to the facts. It is not necessary to go that far, but surely a partial lien under an indivisible cause of action is enforceable under the act. The lien may be and often is less extensive than the debt sued for. By the construction from which I dissent, a court may be put in the dilemma of refusing to enforce a lien or of permitting a plaintiff to split his cause of action. Either course presents an insuperable difficulty. Suppose a case of a contract to furnish a builder with a given quantity of lumber, at a specified jn’ice per foot, to be used on different contracts of the builder, but not stating the quantity for each contract. The vendor’s cause of action is entire, yet, I assume, he has a lien on any building that comes within the provisions of the lien law, for the price of so much of the lumber as he can prove was used in that building. A supplement to the original statute, now part of the revised act, provides for apportionment between buildings of a single claim, but I see no reason why, prior to that supplement, there might not have been maintained one suit upon an indivisible cause of action, with separate averments of lien against several buildings, based upon separate lien claims. That procedure must have been upheld or the benefit of the act have been altogether denied in such a case.

Great injustice may result from the construction of the statute on which the present decision of this court depends. For example, an owner who has paid his builder in full may, upon a merely nominal indebtedness and despite the willingness of the builder to prevent it, be compelled to pay over again for work or materials furnished for his building, although there could be no recovery against the builder if sued alone. Again, unless by the logic of this decision, contrary to previous practice, the claim of indebtedness will be defeated by failure to establish a lien, a creditor who has furnished work or materials for a building may always recover therefor, without possibility of encountering set-off', by the simple expedient of claiming a lien, although by reason of due filing of the building contract, or otherwise, such lien may never have existed or may have been wholly or partially lost; and if the creditor be non-resident so that process cannot be served upon him, the debtor will not have even the poor substitute of a cross-action in the same jurisdiction. Only imperative neces-sity can justify a statutory construction leading to such results. There is ample room for a more liberal construction.

For these reasons, I vote to reverse the judgment of the Circuit Court, and I am authorized to say that Justices Dixon and Lippincott concur in this opinion.  