
    Foust vs. Wilson et als.
    
    
      1. The amount due to a mechanic for building is properly ascertainable in a court of co mmon law, and his statutory lien like the lien of a judgment is to be made effectual by fieri Jadas.
    
    2. A mechanic having* a claim for labor done or materials furnished in building, and a lien for the satisfaction of his claim, may file his bill against a non-resident or absconding debtor, to ascertain his demand and give effect to his lien on the estate, and may make judgment creditors of the iron-resident or absconding debtor parties to hia bill to save circuity of action, and for the greater safety of all concerned.
    This bill was filed at Dresden by Foust, a millwright, against Wilson an absconding debtor, for whom he had built grist and saw mills, and Jacobus and Garthwaite, judgment creditors of Wilson, who had purchased the mills and land upon which they were situated at execution sale. The bill prayed that the demand of complainant be ascertained, the sale and purchase of the property by Jacobus and Garthwaite be declared void, and the property sold for the satisfaction of complainant’s demand.
    Wilson did not appear. Jacobus and Garthwaite filed a demurrer to the bill.
    This demurrer was argued at the February term, 1841, before chancellor McCambell who overruled it, and decreed that the “one acre of land mentioned in the bill including the mills thereupon, be sold by the clerk and master to satisfy said debt.”
    The defendants Jacobus and Garthwaite appealed.
    Fitzgerald,, for the complainant.
    
      Totten, for defendants.
    1. The defendants, Jacobus and Garthwaite, insist that the bill will not lie, because there was no judgment at law for the work and labor done by complainant for said Wilson. It was a parol contract — the demand is for work and labor — in assump-sit or debt the recovery would be in conformity to the services rendered. If the work were performed according to the contract and for a specific sum — that sum would be recovered; if not, a less sum would be recovered, and defendant would have a right to insist on the inferior quality of the work, in abatement of the wages — as decided at the present term.
    
    The nature of this unsettled demand requires that it be submitted to a jury to determine its amount.
    2. The acts of 1825, ch. 37, and 1829, ch. 26, give a lien to the mechanic “for the just value of his labor and materials,” which shall continue for one year (act 1825) and until the end of the suit brought “for the debt that may be due him for the erection of such building.” And so the act of 1829, confers the lien on condition that the mechanic “shall commence an action for such work and labor''1 8fc. and prosecute the same “with ordinary diligence to judgment."
    
    The statutes, in my judgment, clearly contemplate a proceeding at law, to ascertain the justice and amount of the mechanic’s demand — and the lien is continued until the action shall be determined.
    Now after judgment, what is the remedy? It is simply to issue an execution and sell the lot or acre of land on which the buildings are erected. This is the effect of, the lien — and the sheriff’s vendee would have a good title against a purchaser, judgment creditor or other incumbrancer, whose right originated after the mechanic’s hen.
    A judgment is a lien, and it is enforced in the same way; so an execution is a lien on personalty. The landlord has alien for his rent, but before he can enforce that lien, he must have recovered judgment against the tenant. Vide Lawrence vs. Jenkins, 7 Yerg. Rep. 494.
    3. But if the lien could not be enforced at law — because the. interest of the debtor in the land was only equitable, or of such character as is not liable to execution at law — (if there be any interest whichis not so liable, see 1 Hum. Rep. 491,) then a court of equity, in aid of the law, in the exercise of its ancillary jurisdiction, would give relief by enforcing the payment of the judgment as is often done in other cases.
    
      
       Porter vs. Stacker post.
      
    
   Reese, J.

delivered the opinion of the court.

Complainant is the builder, as he alledges, of a grist and saw. mill for defendant Wilson, at 290 dollars — the buildings were commenced in December 1838, and completed in December, 1840. Previously to this time the other defendants, creditors of the said Wilson, obtained judgment against him, and caused the tract of land on which the mills were constructed to be levied on and sold by a sheriff, and became purchasers and obtained a sheriff’s deed. Wilson absconded to Texas, and this bill is filed to obtain a decree for the amount of his indebtedness, and to have satisfaction of the same by a sale of the mills and one acre of land on which they stood. The defendants, Jacobus and Garthwaite, have demurred to this bill; the demurrer was overruled, and an appeal to this court. The question here principally discussed upon the demurrer, is,, whether a court of chancery because of the provisions of the acts of 1825, sec. 1-2 ch. 37, 1829, ch. 26, sec. 1-2, and 1835, ch. 40, giving to a mechanic, building in whole or in part, or furnishing materials in whole or in part, a lien on such building, and the land or lot in which it stands not exceeding one acre, can entertain jurisdiction to investigate the fact and the extent of indebtedness to the mechanic, or the amount of damages that may be recoverable by the mechanic, against the person for whom he may build Or furnish materials. It seems to be thought that as a consequence of such lien thus given, a court of chancery, as a matter of course, is clothed with jurisdiction. But we think an attentive consideration of the terms and the objects of the acts in question will lead to a different impression. The debt or damages due to a mechanic, we think are in general to be ascertained and recovered in a court of common law, and the lien like a lien of judgment, to be made effectual by a fieri facias to be issued thereon. The legislature do not seem to have intended to subject the mechanic, in order to effectuate his lien, to go into a court of chancery, and the situation of his claim in other respects is peculiarly adapted to a common law forum. It is unnecessary, however, conclusively to determine this question. For this is a bill against an insolvent, absconding and non-resident debtor, having no property whatever — and upon whom personal service of the process cannot be had. As against him therefore, a bill on such grounds might well be filed, and the only question, of course, which the demurrer raises under these circumstances is, whether the other defendants are necessary parties. We are of opinion, indeed, that the bill might have been filed against the absconding and non-resident debtor alone, and upon a decree simply for the debt an execution as at law might have been levied upon the mills and acre of land, and the lien secured by the statute, have been in that way made effectual; that as he had a right to come in to a court of chancery, under the circumstances of the case, the defendants who have demurred might well, to save circuity of suits, and for the greater safety of all concerned, be made parties. We think, therefore, the demurrer was rightly overruled — but the chancellor, in ordering a sale without ascertaining and decreeing the indebtedness of defendant Wilson, was led to adopt an erroneous course. For that reason, therefore, the decree must-be reversed, and the cause be remanded for further proceedings.  