
    [Philadelphia,
    April 4, 1825.]
    HARKER and another against CONRAD and another.
    IN ERROR.
    A claim filed under the mechanics’ lien law, “ against the owners, or reputed owners, of a three storied brick house, situate on the south side of Walnut street, between Eleventh and Twelfth streets, in the city of Philadelphia, and against all other person or persons, owners or possessors of the said building,” is sufficiently certain.
    If a lumber merchant, who has separate liens for materials furnished to two houses, receives a payment without actual appropriation by either debtor or creditor, and suffers his lien on one of the houses to expire, he cannot, at the trial of a scire facias upon a claim filed against the other house, appropriate the payment in discharge of bis demand in respect of which his lien had expired, to the injury of a third person, who without notice, had purchased the property against which the lien is sought to be established.
    General rules in relation to the appropriation of payments.
    
      It seems, that a lumber merchant has a lien for lumber furnished to make shelves for a vault which formed part of the original plan of a building.
    A lumber merchant has a lien for lumber furnished to a building, whether it is used in a usual or necessary manner or not.
    Writ of error to the District Court for the city and county of Philadelphia, in a scire facias issued by Conrad and Lancaster, the defendants in error, against Harker and Thorn, the plaintiffs in error, upon a claim filed under the mechanics’ lien law, in these words:—
    
      “ Conrad and Lancaster claim, in their own right, the sum of three l\undred and forty-four dollars, and thirty-four cents, against 
      Marker and Thorn, the owners, or reputed owners, of a three storied brick house, situate on the south side of Walnut street, between Eleventh and Twelfth streets, in the city of Philadelphia, and against all other person or persons, owners or possessors of the said building, or otherwise, for lumber found and provided in and about the said building.
    (Signed) 44Conrad and Lancaster.
    
    
      siPhilada. 6mo. 30th, 1819.
    44 Filed July 1st, 1819.”
    The scire facias was returnable to December term, 1820, to which the sheriff returned, 44 made known to Joseph S. Hop-Mns.”
    
    When the evidence was closed, the court delivered to the jury the following charge, which, together with the opinion of this court, sufficiently explains the circumstances of the case.
    CHARGE. 44 This is a scire facias upon a claim filed by the plaintiffs against the defendants, for materials furnished a house situate on the south side of Walnut street, between Eleventh and Twelfth streets. The plaintiffs, who are lumber merchants, furnished materials for the house, and filed their claim on the 1st of July, 1819, under the act of assembly.
    44 The defendants contend,—
    441. That the plaintiffs’ claim was not filed in time, according to the provisions of the act of assembly.
    44 2. That the parties had made a special contract, that the plaintiffs should be paid for the materials'furnished for this house by orders of the defendants, on Moses Lancaster, which orders were after-wards given and paid by Moses Lancaster, but carried to the defendants’ credit on another account.
    44 3. That the plaintiffs have not described with sufficient certainty the house against which they make their claim.
    44 4. That the payments made by Marker aná Thorn, were more than sufficient to satisfy the plaintiffs’ demand on this claim, and should be so applied.
    44 As to the special contract relied upon by the defendants, it does not appear to us to be supported by the evidence. Whatever was the original agreement, as to the appropriation of the orders on Moses Lancaster, the appropriation was changed by a subsequent agreement of the parties. And if the last agreement was made before Mr. Hopkins purchased, the parties had a right to change the appropriation of the fund; and the plaintiffs would '¡have their lien on the Walnut street house for materials furnished.
    44 The payments mentioned in the fourth point, on the part of the defendants, were not applied by the defendants at the time of payment to any particular account. The plaintiffs might therefore apply the payments to which account they thought proper.
    44 The first objection, — that the claim was not filed within six months after the materials were furnished, — deserves more attention.
    “ The last item of account, — for materials furnished, — the defendants contend, is on the 20th of October, 1818, which is more than six months before the claim of the plaintiffs was filed: That the item for carting the doors on the 18th of December, was not an item which could be a foundation for a claim against the building, nor could the item of one hundred and sixty-three feet of white pine boards furnished on the 12th of February, 1819, for shelving the vault, as alleged, bring the claim within the act; and that this lumber was furnished above four months after the building was finished or completed, and could not therefore carry the the other items of the account with it.
    
      “ There is some contrariety in the evidence as to the time. Certain work was*done at the house, — hanging mahogany doors, &e.
    
      “ It is most probable Copeland is correct. He did the work, and assigns reasons for his recollection of the time when it was done. The fact would not be necessarily nor probably so fixed upon the attention of others, who had no interest, nor reason to impress the circumstance on their memories; and the book entry of the carting of the doors, corroborates Copeland’s statement. And if Copeland is correct, it was not until after the 15th oi January, 1819, that he finished the other work of the house, and then he got the one hundred and sixty-three feet of boards, to make shelves for the vault.
    “The carting of the doors is nota proper eharge against the defendants. It might be an item in the carpenter’s bill.
    “ The most important question then is, whether the one hundred and sixty-three feet of white pine boards, charged on the 12th of February, 1819, were materials furnished for and used in the erecting and constructing the building, within the meaning of the act of assembly. It is said, the vault is no part of the building, and that shelves were-not necessary for a vault, nor usual.
    
      “ The vault, it appears, was a part of the original plan of the building, and, if so, a part of the building, not an addition after the house was completed. Then, were shelves a necessary or usual part of the building ? If they were, there can be no doubt on the subject. But suppose shelves not necessary or usual. Is the lumber merchant to have no lien for lumber furnished for a building unless it is necessary or usual ? How is a lumber merchant to know when lumber is sent for to be used in or for a building, to what purpose or in what form it is to be applied. If lumber is ordered and furnished for a building, he has a lien, though that lumber is not- used in the building to which it was sent. This has been frequently decided.
    
      “ The remaining ground of defence is, that the plaintiffs have not described with sufficient accuracy the house against which they make their claim.
    
      <!Wc think the description sufficiently certain.”
    The jury having returned a verdict for the plaintiffs, for two hundred and ninety-two dollars, six cents, the defendants removed the record by writ of error to this court, where the following specifications of error were filed:—
    
      “ 1. That the claim filed does not describe what building is intended to be made liable.
    “2. That the court erred in charging the jury, that the description of the building was sufficiently certain.
    <£ 3. That the court erred in the charge they gave the jury, respecting the time of filing the claim.
    
      “ 4. That the court erred in the charge they gave the jury, respecting the special contract of the parties.
    
      “5. That the court erred in the charge they gave the jury, respecting the payments made by the defendants to the plaintiffs.”
    These errors were argued by Hopkins and T. Sergeant, for the plaintiffs in error, and by Bradford, for the defendants in error, after which,—
   The opinion of the court was delivered by

Gibson, J.

As the charge of the judge was right on ail the points but one, it is unnecessary to make any other than that point the subject of particular remark. The jury were directed, that under the circumstances of the case, the right to appropriate the payment made on the 3d of July, 1820, devolved on the plaintiffs below, The circumstances of the case were these: The plaintiffs, Conrad and Lancaster, had distinct claims against the defendants, Har~ Jeer and Thorn, for labour and materials furnished towards the erection of a house in Walnut street, and certain houses in Fourth street. The last item of their account, in respect of the Walnut street house, is dated the 12th of February, 1819. The deed from HarJeer and Thorn to Mr. Hopkins, the purchaser of this house, and the party substantially interested, bears date the 15th of May, 1819. The plaintiffs filed their lien against this house, on the first of July following: consequently, Mr. Hopkins purchased without notice. The last item of charge, in respect of the houses in Fourth street, is dated the 3d of March, 1820; and, consequently, on the 3d of July, 1820, when the five hundred dollars were paid by HarJeer and Thorn, the plaintiffs had a lien on the houses in Fourth street, which was equally as operative as that on the house in Walnut street, and to perpetuate which, required .only that it should be filed of record, as had already been done in the case of the house in Walnut street. The case, then, was just this: The plaintiffs had separate demands in respect of different houses, and liens on those houses respectively, which were equally operative and equally permanent, or, what is the same thing, the means of making them such. A payment was made without actual appropriation by cither party, and the plaintiffs, after haying suffered one of their liens to expire, claim a right at the trial to appropriate the payment to the discharge of their demand, in respect of which their lien had so expired; and this against a person who had become a purchaser without notice, of the property on which, according to this mode of appropriation, there would be a subsisting incumbrance. Although, as between the immediate parties, the creditor has a right to appropriate where the debtor has failed to do so, yet this right must be exercised within, at the furthest, a reasonable time after the payment, and by the performance of some act which indicates an intention to appropriate. It is too late to attempt it at the trial; and, were it otherwise," there Xvould, in the absence of an actual appropriation by the debtor, be no rule on the subject but the will of the creditor, which would in all cases be decisive. But such is not the fact. In default of actual appropriation the matter is to be determined by rules and circumstances of equity. The debtor has a right to make the application in the first instance, and failing to exercise it, the same right devolves on the creditor: but where neither has exercised it, the law nevertheless presumes, in ordinary cases, that the debtor intended to pay in the way which at the time was most to his advantage. Thus, if it xvere peculiarly the interest of the party to have the money received in extinguishment of a particular demand, the law intends that he paid it in extinguishment of such demand, and that the omission to declare his intention was accidental. Such intendment is reasonable and natural, and one which will, in most cases, accord with what was actually the fact: it is therefore equivalent to an exercise of the party’s right by acts, or an express declaration of intention. Where, however, the interest of the debtor could not be promoted by any particular appropriation, there is no ground for a presumption of any intention on his part, and the law then raises a presumption, for the same reason, that the payment was actually received, in the way that was most to the advantage of the creditor. I think these principles, as furnishing general rules, may fairly be extracted from the cases. Then, according to this, if the controversy was between the original parties, it would admit of a doubt whether the payment ought not to be considered, as having been made on the foot of the account for materials furnished to the houses in Fourth street, because, by having it so applied, the plaintiffs would secure their whole demand, without the expense and trouble of filing their lien against those houses, whilst Harher and Thorn would not have beeh benefitted by having it applied to" either demand in particular. But the introduction of a purchaser without notice into the case, leads to an opposite result. He stands in superior equity to Harher and Thorn, who were bound in conscience to protect the title which they had conveyed to him, and who there is therefore as much reason to presume intended to make this payment for his benefit, as there would be to presume that they intended to apply it in the way most conducive to their Own interest, if a particular application - of it could have' produced an equal benefit to themselves. The law ought to presume, and does presume, that every man is governed by the dictates of conscience, and that he will do what honesty requires of him, even though it be against his interest. Such a presumption can prejudice no one, nor does it injure the plaintiffs here. They were bound by every consideration of equity, to perpetuate their lien on theffiouses in Fourth street, and thus, while they secured themselves, to cast the burden on those whose duty it was to bear' it. Having failed to do so, the purchaser stands in superior equity also to them; and they must therefore bear a loss which arose en-¡ tirely from their own neglect, and which it was their duty to prevent

Judgment reversed.  