
    [Lancaster,
    July 4, 1823.]
    LEWIS and another against MORGAN and another.
    
    IN ERROR.
    It seems, if a- person furnishing materials tor a building, do not file his claim within six months after its completion, he cannot recover after two years, on a scire facias.
    But on the plea of payment to such scire facias, advantage cannot be taken of the ’ invalidity of the lien : the plea of payment admits the truth of the averments stated in the scire facias.
    
    The effect of the plea of payment in Pennsylvania.
    
    
      Query, Whetherthe recovery of judgment in a personal action.befbre a magistrate, bars the proceeding for the same cause of action by scire facias, on a lien filed?
    Such judgment is not evidence in the suit by scire facias, if it do not appear to have been for the same cause of action.
    The declarations of the owner of the building, that he had retained money to discharge the liens, are evidence in a suit against him by scire facias, brought by a person who performed labour in the building.
    On a writ of error in this case to the Court of Common Pleas of Dauphin county, it appeared, that William Morgan and James Morgan, the plaintiffs below, performed work and labour as masons, in the building of a house in Harrisburg, erected by Philip Lewis, and owned by Benjamin Kurtz, Esq., who were the defendants below, and now plaintiffs in error. The plaintiffs below filed a claim in the office of the prothonotary of the said Court of Common Pleas, on the 22d November, 1816, the building having been completed va. April, 1816. A scire facias was issued on the said claim to December, 1816, and the defendants suffered judgment to go by default. This judgment, however, was opened on the affidavit of Kurtz, and he was allowed to take defence. He pleaded payment, with leave to give the special matter in evidence: replication, non solvit and issue.
    On the trial of this scire facias, in the court below, the defendants offered in evidence, the docket of the late John Kean, Esq. a justice of the peace, containing the entry of a suit brought the 17th of May, 1816, by William Morgan against Philip Lewis, on which judgment was given, and execution issued, and stayed by the plaintiff on the suit. This evidence was objected to by the plaintiffs, and rejected by the court below, who signed a bill of exceptions.
    The plaintiffs offered to prove that B. Kurtz, one of the defendants below, declared, that he was bound to pay the liens on his house, and that he reserved money in his hands out of the debt due to Lewis. This evidence the defendants objected to, but the court admitted it, and the defendants excepted.
    The court below charged the jury, that seven months and more having elapsed after the completion of the building, before the claim was filed, the lien ceased after two years: but the party might, notwithstanding, proceed upon the scire facias issued on such claim,and ajudgment obtained thereon would be valid:it would stand on the same footing as other judgments, and would have no preference to prior judgments.
    The jury found a verdict for the plaintiffs below, and judgment was entered thereon in January, 1823.
    
      Douglass, for the plaintiff in error,
    now contended, that there was error in the proceedings below.
    1. In the charge of the court. He referred to the acts of assembly of the 17th of March, 1806, and 28th of March, 1808, extended to Dauphin county, by the act of 22d March, 1817, Purd. Dig. 417. Under the act of 28th March, 1808, the party cannot proceed by scire facias, either where the lien never attached, or where it wras expired. The proceeding by scire facias is not personal, and cannot be used to affect the person óf the defendant, or any property but the building itself, on which the work has been done. If the lien is not filed within six months, the case is the same as if the act never had been passed; the remedy is by a personal suit. The remedy by scire facias is expressly declared by the act, to be “ against the debtor, or owner of the building: and no judgment on such scire facias, shall warrant the issuing an execution, except against the building or buildings, upon which the lien existed, as aforesaid.” Purd. Dig. 417.
    He also insisted on,the court’s rejecting the record of the suit before Kean, and admitting testimony of the declarations of Kurtz.
    
    
      Elder, contra, was stopped by the court.
    
      
       This case having come into the reporters hands since the 10th Volume went to the press, it is inserted here.
    
   The opinion of the court was delivered by

Gibson, J.

The acts of assembly creating a lien in favour of persons who contribute labour or materials to the erection of buildings, have created no personal liability on the part of an owner who has not entered into any contract for the supply of the labour or materials, but who has employed an architect to erect the building at a stipulated price; but the claim of the labourer, or material man, attaches specifically to the buildings in 'the hands of the owner. This claim may be rendered effective in either of two ways: 1st, By a judgment in an action against the architect, commenced within two years from the time of furnishing the subject matter of the demand; on which the building may be sold. 2d, By a scire facias specifically in rent, commenced within the two years, on a claim filed in the office of the prothonotary of the proper county, within six months after the services have been rendered, or the materials furnished.

But the limitation of the lien was not designed exclusively -to protect purchasers from the owner, but to protect the property in the hands of the owner himself, after the claimant should have had a fair opportunity to proceed against it, within a reasonable time. In this respect, the case is unlike that of land once bound by a judgment which, as a lien, has been suffered to expire. There, the land is subject to be sold while it remains in the hands of the defendant; because the judgment is a personal charge, to satisfy which the land may be levied on, just as if it were a chattel: but in a scire facias there is no judgment against the person of the owner; and if the lien is gone, to give effect to which, alone, there is a remedy against the owner, the remedy, also, is necessarily gone. I therefore, by no means, concur with the court below, that if the claim were filed after the six months, or the scire facias were not issued within the period prescribed, the property might, nevertheless, be sold in the hands of the owner. But although the opinion of the court as to this, be wrong, it is, an error in regard of an abstract principle, which could have no effect on the decision of the question submitted to the jury, by the pleadings; and one which cannot be taken advantage of here. The plaintiffs had obtained a judgment by default, which, on the affidavit of Kurtz, the owner, that he had a full defence; that the defence arose from the inattention of his attorney, and that he had entered into no contract with the plaintiffs, and was therefore not liable to pay, was opened, to let him into a defence: whereupon, he pleaded payment, with leave to give the special matters in evidence; and on that the parties went to issue. The nature of this plea appears frequently to be misunderstood. It was first introduced into practice in actions of debt on bond, from necessity, and to let in evidence of facts which would furnish a ground for an injunction in chancery, where the demand was irresistible at law; and in such case, if the facts were made out, the jury were directed to presume every thing to be actually paid, which in equity and conscience ought not to be paid. Hence it erroneously came to be considered, in cases were there was no equitable defence at all, either real or pretended, as a- sort of panacea in pleading, adapted to all cases, and, where every other expedient might fail, securing to the defendant by a mode of opera ■ tion peculiar to itself, the benefit of every sort of defence that could be made under any particular plea, or all other pleas together. It is not however in the nature of a general issue, contesting the truth of every fact averred by the plaintiff: on the contrary, it admits the original merits as set out, and puts the defence on collateral grounds. As an equitable plea it makes room only for what would sustain a bill in chancery: and as a legal plea, it makes room only for evidence of direct payment, or what, in particular cases, where this plea is directed by act of assembly, is equivalent, to direct payment, and matter of legal defence: as, for instance, set off under the defalcation act. But in every-suph defence, whether legal or equitable, the demand on original grounds, is admitted. Now here the ■writ of scire facias contained an averment of every fact necessary to enable the plaintiff to recover; and as these facts were not traversed by the plea, they are to be taken pro confesso. The points therefore, on which the defendants required the direction of the coui’t, were not involved by the pleadings; and an error with respect to them in the chax’ge, cannot be assigned as a ground for reversing the judgment.'

Besides the point just disposed of, there ai’e two bills of exceptions to evidence. The defendants offered a transcript from the docket of a justice of the peace, of a suit by one of the plaintiffs against Lewis, the architect, and one of the defendants in the present cause, in which judgment was obtained; but it did not appear that the debt had been collected. I am not going to say whether the prosecuting of an action against the person of the architect, with whom the plaintiff has contracted, is inconsistent with the prosecuting of a scire facias against the property; or whether the i’emedies are cumulative and xnay be prosecuted together. That' question does not necessarily arise; for it did not appear that the suit before the justice was for the same cause of action as the suit at bar; aixd the transcript was therefore properly excluded. And as to the propriety of admitting evidence of the declarations of Kurtz, the owner, that he had retained money in his hands for the purpose of discharging the lien, I cannot entertain a doubt. These were declax’ations of a party in the cause, admitting in some degree the legality of his antagonist’s demand; and as such they were clearly competent evidence.

Judgment affirmed.  