
    BORTON, to use, v. MORRIS, owner.
    June 19, 1837.
    
      Rule on plaintiff to file a statement or declaration, or non. pros.
    
    Of the mode and practice, under the 23d section of the act of June 16,1836, relating to mechanics’ liens, where the mechanic or material man has filed a claim, but has issued no scire facias, to compel him at the instance of the owner to proceed, or in default thereof, to suffer judgment of non. pros.
    
    THESE were mechanics’ claims for work done, filed to December term, 1836, Nos. 2 to 7, inclusive. The plaintiff had issued no writs of scire facias on the claims. The defendant filed his petition, under the 23d section of the act of June 16th, 1836, relating to mechanics’ liens, (Stroud’s Purd. tit. Mechanics’ Lien,) ■which prescribes that “ in every case in which any claim shall be filed against any building as aforesaid, and no scire facias shall have issued thereon, it shall be lawful for the owner of such building, or any person interested therein, to apply by petition to the court in which such claim shall be filed, setting forth the facts, ■whereupon such court may grant a rule upon the party claimant, and others interested, to appear in court at a time to be fixed for such purpose, and on the return of such rule, may proceed in like manner as if a scire facias had been issued by such claimant, and had been duly served.”
    On motion of Clarkson, for the defendant,
   The Court

made the following order, intimating that it would exhibit the practice which would be pursued in like cases, in order to accomplish the objects of the act of assembly, viz.:

“ That in each of these cases, the plaintiff shall file a statement or declaration, upon the contract under which the said work was done, stating the same particularly, if any special contract were made, annexing thereto, as a part thereof, a bill of the items or particulars of the demand, as fully as they appear upon the plaintiff’s book of entries, if any such are intended to be offered in evidence on the trial, and if no such entries are to be offered, then the said bill shall state particularly the dates or times at which said work and labour was performed. And the court further direct, that the defendant allege particularly his defence to such parts of the plaintiff’s statement, or to such item of his bill of particulars, specifying the same, as he intends to dispute; and neither party shall be allowed on the trial to allege or prove any matter or thing not contained in the statement, or bill of particulars, exception, or defence. The plaintiff to comply with this order on or before the 7th day of June, 1837, or, in default thereof, judgment of non. pros, to be entered in each case, and the claims to be stricken from the record.

Notice of this rule was given the day on which it was made, to the attorney of the plaintiff.

The rule not being complied with on the part of the plaintiff, the Court on this day directed the entry of

Judgment accordingly.  