
    SAMUEL D. PHILLIPS AND JOHN RIDDLE vs. GEORGE B. COBURN.
    At Law. —
    No. 12418.
    I. A judgment in an ordinary action at law for a debt secured by a mo chanic’s lien is not admissible evidence against a surety on an undertaking to discharge that lien, according to the requirements of section 708, Revised Statutes for the District of Columbia.
    II. A personal action on the common counts is not at all appropriate to. the remedy which the mechanic’s lien law has rendered necessary in order to enforce such a lien.
    STATEMENT OE THE CASE.
    This action was against defendant as surety upon an undertaking given for the release of a mechanic’s lien. The lien of mechanics for labor and materials used in the construction of buildings is provided for by chapter 20 of the Bevised Statutes for this District. Notice of the lien is to be filed in the office of the clerk of this court, and the lien is to cease at the expiration of one year after the completion of the building, unless before that time an action to enforce the same shall have been commenced by the person having the lien. Section 697 reads as follows: “The complaint of the plaintiff shall contain a brief statement of the contract on which the claim is founded, the amount due thereon, the time when the notice was filed with the clerk, the time- when the building was completed, if it be completed, with a description of the premises, and any other material facts, and shall pray that the premises may be sold, and the proceeds of the sale ap-' plied to the discharge of the lien.”
    Section 708 enacts that, “In all proceedings commenced under this chapter, the defendant may file a written undertaking, with surety to be approved by the court, to the effect that he will pay the judgment that may be recovered and costs, and thereby release the property from the lien hereby created.”
    Section 808 provides: “The proceedings to enforce any lien. shall be by bill or petition in equity, and the decree, besides subjecting the thing upon which the lien has attached to the satisfaction of the plaintiff’s demand against the defendant, shall adjudge that the plaintiff may recover his demand against the defendant, and that he may have execution thereof as at law.”
    The plaintiffs, being mechanics, proceeded to effect a lien in conformity with the foregoing statute. On the 19th day of January, 1872, they filed their notice of lien in the clerk’s office against twenty-five houses situated in this city in square No. 675, on lots 70 to 89 and 169 to 188, inclusive, then owned by Benjamin F. Gilbert and Nelson T. Judd, and on the 23d day of February, in the same year, they commenced an ordinary action at law in assumpsit against said Gilbert and Judd. The declaration thereon contained only the common counts for labor and materials, and there was a judgment on the 24th day of June, 1873, for the sum of $3,446.88 against the said Gilbert and Judd. Execution was issued thereon and returned nulla bona. The defendant, Coburn, was not a party to that suit. On the 19th day of March, 1872, the said Gilbert, with George B. Coburn as surety, entered into an undertaking, in conformity with section 708 above quoted, for the purpose of releasing said lien, and the same was duly released May 1, 1872. The undertaking was in the words following :
    “ Lien-claim on twenty-five houses, on I street north and First street east, and in the rear of said streets, in square 675, on lots 70 to 89, inclusive, and 169 to 183, inclusive, on Myrtle street, the said B. F. Gilbert, principal, and George B. Coburn, surety, both of Washington, D. C., hereby undertake, for themselves, their heirs, executors, and administrators, to satisfy and pay the final judgment of the court upon the above claim, which judgment may be rendered against both of us in consideration of the discharge of said lien.”
    The declaration in the present action sets up this undertaking, and avers the recovery of this judgment in the action at law just stated for the amount of the debt secured by the lien. It also alleges the execution thereon and the return of nulla bona, and that the defendant Coburn who executed the undertaking, has not paid that judgment in pursuance of his obligation. The defendant Coburn interposed several pleas: not indebted, never promised, and that no suit has been instituted or judgment obtained to enforce the lien-claim for which he is surety, and that there has been no breach of his undertaking.
    Upon the trial of these issues in the present case, the notice ■of lien, the undertaking of defendant, and the discharge of the lien were introduced as evidence by the plaintiffs without objection. The record of the judgment in the action at law against Benjamin F. Gilbert and Nelson T. Judd, already mentioned, w as also offered in evidence by the plaintiffs, and to that the defendant’s counsel objected. The objection was overruled by the court, and the record was allowed to be read to th e jury. To that ruling an exception was taken, which is the only exception in the case. An appeal is taken by defendant.
    
      Moore & Newman for plaintiffs.
    
      John C. Fay for defendant:
    There is nothing in the record to identify the personal judgment with the lien-claim which was the subject-matter of the bond. There was no evidence tending to show that the plaintiffs, ever had a right of lien, or that they had availed themselves of the provisions of the statute and brought themselves within its limitations, and the defendant insists that his liability is to be measured by and is co-extensive with the lien only, and not with the debt. The distinction between the lien-claim and the debt is well defined and vastly different. Phillips on Mechanics’ Liens, sec. 311, p. 440; West vs. Fleming, 18 Illinois, 248; McNeil vs. Boreland, 23 Cal., 144. Indeed, the lien remedy is considered so entirely disconnected with the debt, that in the settlement of an intestate estate, contracts, &c., though secured by mechanics’ lien on the land, are a charge upon the personal estate in the first instance. Taylor vs. Taylor, 3 Bradf., 54.
    The plaintiffs had two remedies, either to pursue the lien or pursue the parties in a personal action of assumpsit.. The action in which judgment was rendered* if we refer to the papers in that case, was a personal action,.and there was no count in the narr. upon the lien-claim, and the action was instituted before the lien was discharged or the bond given; and even though it were conceded for the sake of the argument that it was the same indebtedness, which neither the record nor the proofs show, still the defendant insists that that action was a pursuit of their personal claim, and that the bond was the substitute of the lien-claim, subject to all the defenses and requiring all the evidence that would be requisite to enforce the lien itself.
    The giving of a bond did not concede either the right of lien or the vailidity of the lien; the bond was for the purpose of removing the cloud upon the title which existed by reason of the filing of the lien, and this cloud existed whether the lien was a valid one or not; the bond could in no way cure any defect in the lien, and it should be treated exactly as the lien itself, the liability thereon being contingent upon the validity of the lien-claim, and not as a covenant to pay the debt. The tenor of the bond relates to the lien-claim, not the debt. Certainly, then, a judgment in personam was not properly admissible in evidence to establish liability upon the bond, and, even though admitted, could afford no evidence of a breach of the condition of the undertaking sued on.
   Mr. Justice MacArthur

delivered the opinion ofthecourt:

The bill of exceptions in this case raises the question whether a judgment in an ordinary action at law, for the debt secured by a mechanic’s lien, is admissible evidence against a surety on an undertaking to discharge that lien. It is held by a majority of the court that it is not. The declaration, in the action at law in which the judgment was rendered, contained only the common counts in assumpsit, with a bill of particulars annexed. This action was commenced before the lien had been released. Now, the statute under which the lien was created provides a mode in which it can be enforced. The complaint, in such case, shall contain a brief statement of tbe contract on which the claim is founded, the amount due thereon, the time when the notice was filed,the time when the building was completed, together with a description, of the premises, and shall pray that the premises may be sold, and the proceeds of the sale applied to the. discharge of the lien. The general provision, contained in section 808, requires that the proceedings to enforce any lien shall be by bill or petition in equity. The whole proceeding is in rem, and must be instituted within one year from the time the building was completed. An action at law on the common counts is not at all appropriate to the remedy which the statute has thus rendered necessary in order to enforce amechanic’s lien. This is too clear for argument.

But it is said the undertaking discharged the lien, and it was therefore unnecessary to enforce it. The provision of •section 708 says that, in all proceedings commenced under that chapter, the defendant may file his undertaking, and thereby release his property from the lien created by that chapter. This clearly means that the undertaking is to pay the judgment that may be recovered in the proceeding to enforce or foreclose the lien in equity. The language is peculiar. It is the defendant in the proceeding who may file the undertaking, and it is to be approved by the court in which the proceeding is pending. This statute assumes that an action, such as is required, with a complaint, alleging all the circumstances necessary to support the proceeding to enforce a Hen, has been commenced, and then it declares that the a defendant may file Ms undertaking.” The surety undertakes only to pay the judgment obtained in the mode pointed out by the law. The action, however, in this case was commenced before the lien was discharged. This shows that it was not a proceeding under the statute or in conformity with it. The lien is like a mortgage, and is on property to be fully described. It may be utterly void, and still the mechanic have a good action at law for the debt. When he forecloses on the lien, he must allege thatjie has filed his notice, he must describe the property, and aver that the debt arose from having furnished material or labor in the construction of the building, and it must appear that he has brought his action within the year, and that the whole proceeding is brought in the proper manner and form. The surety who executes the undertaking has a right to defend himself upon, all these points in the proceeding to enforce the lien. He has not undertaken to pay any other judgment than that provided for in the statute. The record of the judgment, in the personal action, was improperly admitted. A new trial is allowed.

Cartter, Oh. J., and Humphreys, J., dissenting.  