
    Thomas N. Falconer et al. vs. George Frazier.
    In a suit at law by petition, under the mechanic’s lien law, to subject alleged property of the defendant to the payment of an alleged mechanic lien in favor of the plaintiff, if the defendant be a non-resident, it is error to grant an order of publication against him, and on proof thereof to render a judgment by default against him; such judgment will be absolutely void for want of due notice.
    "Where a petition under the mechanic’s lien law was filed against two persons, one of whom plead and the other made default, and judgment by default was rendered against the latter at one term, and judgment on the issue at the next term for a less sum was rendered against the other, it was held to be erroneous ; as the plaintiff could not have in the same suit two distinct judgments for different sums.
    In a petition under the mechanic’s lien law, the title to the property sought to he subjected to the lien, canno.t he brought in issue; an issue, therefore, tendered by the defendant to such a petition, that he was neither proprietor nor lessor of the premises, will be an immaterial one.
    In a petition under the mechanic’s lien law, nothing is affected by the judgment but the interest of the party to the record; if the party have no interest, the judgment will confer no lien; the lien will be confined to the actual interest; the rights of third persons not parties to the suit will remain as they were previously.
    In error from the Adams circuit court; Hon. C. C. Gage, judge.
    On the 12th of May, 1842, George Frazier filed his petition, under the mechanic’s lien law of 1840, to recover the amount of $970, from Thomas N. Falconer, for labor and materials furnished by him, as the petition alleges, and placed on property described in the petition as belonging to Falconer.
    To this Falconer replied at that term, denying the petition generally, and averring, that he was neither the proprietor or lessor of the premises described. At that term, the cause was continued. At the fall term, 1842, the petitioner had leave to amend his petition, in order to make new parties, and also had leave to take an order of publication against one of said new parties, a non-resident, Robert T. Hawes.
    At tne May term, 1843, the cause was continued. At the fall term, 1843, the suit was dismissed as to one of the new parties, Collins, and a judgment by default, with writ of inquiry awarded, taken against Hawes, the other new party, upon the proof of publication- two months in a Natchez newspaper. A jury was at the same time empanelled, who returned a verdict against both Hawes and Falconer, for $1121 97, and the court entered up judgment against them both for that sum. After the judgment by default had been executed, counsel for Hawes appeared and filed an affidavit of merits, and asked to have the judgment set aside, and for leave to plead for Hawes; Falconer at the same time moved for a new trial, which was granted as to Falconer, but the motion by Hawes was refused. At the May term, 1844, Frazier filed his replication to the answer of Falconer, to the original petition, and upon that issue joined the cause was submitted to the jury. A verdict was then rendered against Falconer alone for $1159. Both in the joint judgment rendered in 1843 and in the last rendered, a lien was embraced in the judgment, as sought by the petition.
    The court instructed the jury at the last trial, on behalf of petitioner, “ that possession and occupation of the premises in question by defendant Falconer, when the work was done, and at the commencement of this suit, are sufficient, as between plaintiff and defendant, to warrant a presumption of ownership by defendant.” The defendant’s counsel below, excepted to the opinion of the -court in giving this instruction, and after verdict, moved for a new trial; this was overruled, to which defendant’s counsel also excepted. Exceptions were also taken to the refusal to set aside the first judgment in the fall of 1843, against Hawes.
    The defendants brought the case to this court by writ of error.
    
      Hewett, for plaintiff in error.
    1. The prominent error of the case is, the attempt to charge Hawes with notice by publication in the newspaper. It has been settled in this court, that “ no court can legally proceed to judgment, unless it has jurisdiction over the person, as well as the subject-matter;” and that “ jurisdiction over/the person does not attach, unless he be actually, or constructively in court.” 6 How. R. 509.
    “ By the service of process, the defendant is considered in court, and the court may proceed to judgment.” Ibid.
    In our country, we admit, the “ actual presence” is not requisite in order that the court may proceed legally to judgment. A constructive notice is alone necessary; “ our courts acquire jurisdiction by the service of the process merely.” Ibid. And how that service shall be had, see How. & Hutch. 583, § 27.
    It is also true that in some cases, the subjects of special legislation, provision has been made, that in the case of nonresident defendants, proof of publication in a newspaper, for a specified time, shall give the benefits of an actual service of process. As in the attachment law, How. & Hutch. 552, sect. 20, 21. Also in relation to proceedings against non-residents in the chancery court, How. & Hutch. 510, sect. 24. But the fact of such special provision, in special cases, shows that the legislature deemed it necessary to provide, by express enactment, for any deviation from the general principles in regard to service of process. The mechanic’s lien law of 1840 evidently contemplates no such mode of bringing a defendant within the jurisdiction of the court. Courts cannot add a provision to a statute, not placed there by the enacting power, or give it a construction not required to effect the purposes intended by the legislature. 1 Call’s R. 411; Peck, 418.
    The statute expressly restricts the lien contemplated to cases of contract between “ the proprietor or proprietors, the lessor or lessors” of the property improved, and the mechanic.
    2. It was however contended, in the court below, that this proceeding assimilated itself to, if it was not in fact, a chancery proceeding. And that the rules of chancery practice would , be resorted to by the court.
    In 7 How. R. 140, this court remark, “ that the whole language of the statute distinctly stamps upon the proceeding the character of a remedy at law.” “That where the contract has not been recorded, the remedy is intended to be at law; and that no further change was intended to be introduced, than to substitute for the ordinary declaration, a petition in which the nature of the lien claimed should be set out.”
    The court erred in setting the joint judgment as to Falconer aside, and refusing to do so as to Hawes. The verdict of a jury on the judgment of a court must stand or fall in toto. It is a unit. Having rendered it against those defendants jointly, to set it aside as to one, was to render it null as to the other.
    4. At the. new trial in the spring of 1844, by taking a judgment against Falconer, and neither dismissing, or in any other way disposing of the cause as to Hawes, another error was committed.
    
      5. By creating or attempting to create a lien on the property named in the petition, upon both these judgments, another error was perpetrated. The petition originally charged Falconer as the proprietor. The amended petition charged Hawes as proprietor, and liable through the agency of Fal■coner, his attorney in fact. Falconer answers, denying the petition, issue is joined by petitioner, and yet without one tittle of evidence to sustain the petition as to the ownership of the property, a judgment is rendered, with lien. At the same time that this judgment is rendered against Falconer as the principal, and proprietor, the court below insist that the previous judgment taken against Hawes as proprietor, and upon the assumption that this Falconer was his attorney in fact, •shall also be continued in force as a lien on the same property.
    6. Tn the instructions to the jury, the court erred. As we have seen, the right of this peculiar remedy does not exist, except ■against those who are the proprietors or lessors of the property. If then the petitioner undertook to prove the affirmation, as he did here, by notice given, he could have compelled the production of any papers he required, possessed by the defendants, or given secondary evidence of their contents, if not produced. He did neither, nor did he prove, or attempt to prove anything but what might be proved in regard to scores of tenants in the same city. The principle asserted by the court below might be admitted, if by the verdict and judgment it had been only intended to affect the property of Falconer generally; but when it is proposed to give thereby a specific lien on a particular piece of property, and make it liable to the consequences of Falconer’s engagements, such evidence of property in the premises, as the instructions contemplate, is unknown to the court, and would be destructive to the interests of society.
    
      Davis and Cox, for defendant in error.
    1. When a verdict has been found for plaintiff, even against evidence, after an unconscionable defence has been set up, a new trial will not be granted. Graham’s Prac. 631, 632; I Bun. 11; 2 B. & C. 357. Besides the court must be satisfied that there are strong probable grounds to suppose that the merits have not been fully and fairly discussed, and that the decision is not agreeable to the justice and truth of the case, before they will grant a new trial. Graham’s Prac. 632; 3 Bl. Com. 392; 6 T. R. 638; 4 D. & R. 243.
    2. It is a well settled principle that a party cannot take advantage of his own wrong. The plaintiffs in error now seek to avail themselves of the error committed by the court below, in refusing to set aside the judgment (first rendered) as to Hawes, on the ground that a new trial cannot be granted at the instance of one of several defendants, as the verdict must stand or fall in loto. BuL N. P. 326; Graham’s Prac. 636. Yet it cannot avail the party benefited by the same. After a writ of inquiry shall be executed and judgment rendered thereon by the court, the same shall not be set aside, unless good cause be shown therefor. How. & Hutch. 636, sect. 9; 5 Johns. 355 ; Graham’s Prac. 292.
    It is discretionary, it seems, in the court to set aside a judgment by default or not. Graham’s Prac. 788 ; 2 St. 1242. Qucere, therefore if a refusal so to do is ground of error.
    The statute providing that a refusal to grant a new trial, may, upon reducing the evidence, &c. to writing, be assigned as matter of error, would seem to embrace only cases wherein there has been actually a trial, and not to extend to judgments by default, and writs of inquiry executed. How. & Hutch. 493, sect. 52.
    3. The instruction is both in the language and spirit of 12 Wend. 375, and 2 How. 874, Buck v. Brian.
    
    
      ■ 4. The term proprietor in the statute does not alter the rule of evidence. It does not require the same strictness of proof as in an action of ejectment. It would not be competent for a defendant in a petition under the mechanic’s lien, to defeat the claim under pretence of defective title, when to all appearance he was the actual owner of the property. Such a doctrine would be at war with the principle that allows no man to derive benefit from his own wrong. The objection, if it lie at all, must come from third persons by way of intervention.
    5. The mechanic’s lien law is a remedial statute, securing to the laborer a compensation for his time and materials. It is an improvement upon the civil law doctrine of accession, which placed in some respects the furnisher of materials, or the artisan, upon a property platform with the owner of the chattel; it is an amendment to all the acts previously enacted upon the same subject.
    The form in which the lien is to be judicially enforced is not by technical common law declaration, but by petition or bill, describing simply, with common certainty (as in chancery proceedings) the property and the contract. In its decision the court is required to render judgment according to the justice of the case. Upon the judgment so rendered there is issued a general execution against the goods and chattels, lands, &c., of defendant, but a special execution against the special property. In all respects the proceeding is akin to a foreclosure of mortgage.
    It would seem therefore, that the notice might be given either by law or chancery process; both require, when it can be had, actual service, but when this is impracticable the latter allows notice by publication. Surely to prevent a failure of justice, the court would interpret the statute in an equitable spirit.
    The intention of the legislature is not to be collected from any particular expression, but from a general view of the whole of an act of parliament. 3 Bing. 196, per Best, C. J.
    In construing acts of parliament, judges are to look at the language of the whole act, and if they find in any particular clause an expression not so large and extensive in its import as those used in other parts of the act, and upon a view of the whole, they can collect from the more large and extensive expressions used in other parts, the real intention of the legislature, it is their duty to give effect to the large expression. 7 B. & C. 643, per Lord Tenterden.
    In statutes incidents are always supplied by intendment; in other words, whenever a power is given by a statute, everything necessary to the making of it effectual, is given by implication ; for the maxim is Qaando lex aliquid concedit concederé videtur et id per quod dentur ad ittud. 2 Inst. 306, 12 R. 130,, 131; Dwarris on Stat. 23.
    It is by no means unusual, in construing a remedial statute;, to extend the enacting words beyond their natural import and effect, in order to include cases within the same mischief.. 2 Y. <fc J. 196 ; Dwarris on Stat. 67.
    It is held that in the case of a remedial statute, everything is to be done in advancement of the remedy that can be given consistently with any construction that can be put upon it. 3 Dow. 15; Cowp. 391; Dwarris on Stat. 78.
    A remedial act shall be so construed as most effectually to meet the beneficial end in view; and to prevent a failure of the remedy, as a general rule a remedial statute ought to be construed liberally; receiving an equitable or rather a benignant interpretation. The letter of the act will be sometimes enlarged, sometimes restrained, and sometimes it has been said, the construction made is contrary to the letter. Dwarris on Stat. 57.
    Statutes are extended by construction to other cases, also to other persons, also to other places, and also to other, times. Dwarris on Stat. 57, 58, 59, '60, 61.
   Mr. Justice Clayton,

delivered the opinion of the court.

Frazier filed his petition in the circuit court of Adams county, under the mechanic’s lien law, to subject a certain lot in the city of Natchez to the payment of a debt due to him as a mechanic. Falconer, who was then the only defendant, filed an answer in which he denied that he was either the lessor or proprietor of the lot in question. Frazier then, by leave of the court, amended his petition and made one Robert T. Hawes a defendant. An affidavit was filed, that Hawes was a nonresident, and an order of publication was made against him. At the November term, 1843, upon proof that publication had been made, a judgment by default was entered against Hawes. Up to the time of this judgment, there had been no appearance upon the part of Plawes, either in person or by attorney; — after the judgment by default, but at the same term, counsel appeared and moved to set it aside and to plead. The proceeding in the case was at law, the suit was brought and conducted throughout as a common-law suit. After the judgment by default, a jury was empanelled to assess the damages, who did assess them against both the defendants jointly.

The statute does not authorize a proceeding by publication in a case of this kind. Unless in certain excepted cases, made so by statute, a judgment without service of process, or that which is regarded as. equivalent, cannot be sustained. This case does not fall within any of the exceptions. The judgment by default, therefore, should not have been rendered. It was a nullity for want of proper notice. The motion to set it aside and for leave to plead, should have been granted; and it is now accordingly directed to be done.

In regard to the other defendant, Falconer. After the verdict above referred to, and a final judgment as to both defendants, a new trial was granted to him. At a subsequent term this trial was had, and after verdict another judgment, for a different sum, was entered against him, so that the plaintiff in the same suit has two distinct judgments for different sums. This was also erroneous. See 2 How. 805; 7 How. 304. The judgment must therefore be reversed as to both defendants, and the cause remanded.

The defendant Falconer filed a plea putting in issue the fact that he was the proprietor or lessor of the premises on which the building was erected or repaired. The statute does not contemplate the trial of such an issue in this form of proceeding. Nothing can be affected by the judgment, except the interest of the party to the record. If the party have no interest, the judgment will confer no lien. The lien will be confined to the actual interest. The rights of third persons, not parties to the suit, remain as they were previously. We regard the issue as tendered by that plea therefore as wholly immaterial.

Judgment reversed, cause remanded, and new trial awarded.  