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Winder v. Caldwell.

and such commissions, as administrator, as the Orphans' Court may legally allow, . And it is further ordered, adjudged, and decreed, that the said sums of money and stock, so decreed to be paid and transferred by the above-named defendants, be paid and transferred to the above-named complainants, Hippolitus Estho, Roman Estho, Louisa Narbut, Vlandislaus Wankowiez, Hippolitus Wankowiez, Adam Bychowiec, and Michael Szyrma, in the proportions stated and adjudged in the preceding fourth clause of this decree.

Eighth. It is further ordered, adjudged, and decreed, that the decrees pro confesso against Roman Estho, Louisa Narbut, born Estho, Thaded Emilie Wilchelmine Zeltner, Maria Charlotte Julia Marguerette Zeltner, Bonnisant Pere, General Baszkoyski, Emilie Zeltner, Mr. and Mrs. Edward Zeltner, Zavier Amieth, Dr. Sheërer, Miss Ursula Zeltner, and Kosciusko Armstrong, by the said Circuit Court be, and the same is hereby, affirmed.

And lastly. It is ordered, adjudged, and decreed, that this cause be, and the same is hereby, remanded to the said Circuit Court, with directions to that court to carry the aforesaid decree of this court into effect.

WILLIAM H. WINDER, PLAINTIFF IN ERROR, v. ANDREW D.

CALDWELL.

Where a scire facias was issued to enforce a lien upon a house under the lien law of

the District of Columbia, there was no necessity to file a declaration. Where the contract between the owner and the builder, (who was also the carpenter.)

stipulated for a forfeiture per diem in case the carpenter should delay the work, the court below ought to have allowed evidence of such delay to be given to the jury by the defendant, under a notice of set-off, and also evidence that the work and materials found and provided upon and for the building, were defective in quality and character, and far inferior in value to what the contract and specification called

for. A master builder, undertaker, or contractor, who undertakes by contract with the

owner to erect a building, or some part or portion thereof, on certain terms, does not come within the letter or spirit of the act of Congress passed March 2, 1833, (4 Stat. at Large 659,) entitled an Act to secure to mechanics and others, payment for labor done and materials furnished in the erection of buildings in the District of Coiumbia.

This case was brought up, by writ of error, from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Washington.

It was an action of scire facias, broaght by Caldwell against Winder, upon a claim filed under the act of' Congress passed

Winder v. Caldwell.

March 2, 1833, entitled "An Act to secure to mechanics and others, payment for labor done and materials furnished in the erection of buildings in the District of Columbia.” 4 Stat. at Large, 659.

Caldwell, in March, 1849, filed his claim in the clerk's office, consisting of the gross sum of $10,500, claimed as due under a special agreement, and the further sum of $4,086 for extra work — the items of the extra work being particularly mentioned in the claim.

Upon this claim the writ of scire facias issued March 20, 1849. No declaration was filed. The defendant appeared and pleaded non assumpsit, upon which issue was joined.

Upon the trial, the jury found a verdict for the plaintiff in the sum of $4,746, with interest from 9th March, 1849.

Upon the trial, the plaintiff took three bills of exceptions, and the defendant, ten. The substance of them all is stated in the opinion of the court.

It was argued by Mr. Davidge, for the plaintiff in error, and Mr. Bradley and Mr. Lawrence, for the defendant in error.

The counsel for the plaintiff in error made the following points.

I That, under the act of 1833, the mechanics and materialmen who do the work and provide the materials for the building, are entitled to the lien, and not he who merely contracts with them to do and provide such work and materials.

1.. Because the law tolidem verbis confines the lien to those " employed in furnishing materials for, or in the erecting or constructing" the building. .

2. Because the only debts secured by the law are those contracted for work done and materials furnished for the building.

3. Because the ad clause of the 1st section of the act plainly shows that a mere contractor is not within its provisions.

4. Because the contractor not being within the letter, is still less within the spirit of the law, the object of which was to allow those whose property, whether work or materials, had been advanced upon the credit of the building, to follow that property after it had become part of the building. In the present case, the work and materials advanced, or a large portion of them, were not the property of the contractor.

5. Because if the contractor be held within the law, the building would be subjected to double liens and double recoveries. And, more than this, a sub-contractor, not advancing either work or materials, might, with equal justice, claim the lien, and the property would then be subjected to triple liens for the same benefit.

Winder v. Caldweli.

6. Because the mechanics and material-men are, by the law, expressly authorized to institute proceedings against the contractor, the basis of which is, that they have found and provided the work and materials for the building.

7. Because the law contemplates but one lien for the same work or materials, and if there be two or more, the satisfaction which the owner is entitled to, under the last clause of the 1st section could not be entered. Act of 1833, (4 Statutes at Large, p. 659); Penn. Lien Laws of 1803, (Pamphlet L. 591); of 1806, (4 Smith's L. 300); and of 1836, (Pamphlet L. 695); Jones v. Shawhan, 4 W. & S. 257, 264; Hoatz v. Patterson, 5 W: &

S. 537, 539; Haley v. Prosser, 8 W. & S. 133, 134; Whitman .v. Walker, 9 W. & S. 183, 187; Bolton v. Johns, 5 Barr's Penn. Rep. 145, 150.

But, further, the act of 1933 cannot be regarded as giving a lien to the contractor in this case, unless it, an affirmative statute, without a repealing clause or negative words, be held to repeal a former law passed in pari materia, and between which and the act of 1833 there is no necessary repugnancy. The act of Maryland, passed December 19, 1791, provided as follows:

" X. And for the encouragement of master-builders to undertake the building and finishing houses within the said city, by securing to them a just and effectual remedy for their advances and earnings, be it enacted, that for all sums due and owing, on written contracts, for the building any house in the said city, or the brickwork, or carpenters' or joiners' work thereon, the undertaker or workmen employed by the person for whose use the house shall be built, shall have a lien on the house and the ground on which the same is erected, as well as for the materials found by him; provided the said written contract shall have been acknowledged before one of the commissioners, a justice of the peace, or an alderman of the corporation of Georgetown, and recorded in the office of the clerk for recording deeds herein created, within six calendar months from the time of acknowledgment as aforesaid; and if, within two years after the last of the work is done, he proceeds in equity, he shall have remedy as upon a mortgage, or if he proceeds at law within the same time, he may have execution against the house and land, in whose hands soever the same may be; but this remedy shall be considered as additional only, nor shall, as to the land, take place of any legal encumbrance made prior to the commencement of such claim.” 2 Kilty's Laws of Md. act 1791, ch. 45, $.10.

This law gives a lien to the contractor or to the workmen employed by the owner, but it requires, 1. That there shall be a contract in writing; 2. That such contract shall be acknowWinder v. Caldwell.

ledged; and 3. Recorded within six months after acknowledg. ment.

In the present case there was a written contract, but it was neither acknowledged nor recorded; and, besides, the remedy adopted is wholly different from that given by the act of 1791.

Is that law repealed by the act of 1833 ? It is not in any portion; or, if at all, not so far as concerns the right of the contractor.

It is not repealed, in whole or in part, expressly or by direct terms. Is it by necessary implication ?

There must be, to'repeal by implication, a positive repugnancy between the provisions of the new law and those of the old; and even then the old law is repealed only pro tanto, to the ex. tent of the repugnancy. Wood v. The United States, 16 Pet. 342, 362; Daviess et al. v. Fairbairn et al. 3 How. 636, 646; Beals v. Hale, 4 How. 37, 53; Chesapeake & 0. C. Co. v. Bal. timore & .0. R. R. Co. 4 Gill & J. 1, 152, 153; Dwarris on St. 673, 674, 675.

A later statute, which is general, does not abrogate a former, which is particular. 6 Rep. b. 19; Dwarris on St. 674.

Statutes in pari materia, are to be taken together and compared in the construction of them. The United States v. Freeman, 3 How. 556; Dwarris on St. 699.

Statutes are to be construed with reference to the existing law. Four things are to be considered; what was the law before the act; the mischief not provided against; the remedy provided; and the reason of that remedy. Heydon's case, 3 Co.7.

The mischief which required the passage of the act of 1833, was twofold: 1. The law gave no lien to mechanics contracting with the undertaker or contractor. 2. It gave no lien whatever to the material-man, unless he was at the same time undertaker, or a workman contracting directly with the owner.

The whole object of the law of 1833, was to supply the omissions of the act of 1791. It was desigped to be auxiliary merely, and not to repeal the provisions of the existing law.

Certainly no reason can be assigned why the salutary provision of the act of 1791, requiring a contractor to enter into a written contract, and have the same acknowledged and recorded, was intended to be annulled.

The act of 1701 is not obsolete, but has been recognized as in full force. Homans v. Coombe, 3 Cranch, C. C. Rep. 366 — decided in 1828.

II. The court below erred in refusing to instruct the jury that the plaintiff was not entitled to recover for the work and materials done and provided under the special agreement.

1. Because the act of 1833 is inapplicable to cases where work

Winder v. Caldwell.

and materials are furnished under a special agreement. Jones 0. Shawhan, 4 W. & S. 257, 262; Hoatz v. Patterson, 5 Id. 537, 538; Haley v. Prosser, 8 Id. 133, 134; Witman v. Walker, 9 Id. 183, 187; Barton v. Johns, 5 Barr's Penn. R. 145, 150; Act of 1791, ch. 45, § 10; United States v. Barney, 2 Hall's Law J 128; Ex parte Lewis, 2 Gallis. 483; Hostler's case, Yelv. 66; Bac. Abr. Trover, E.; 2 Rol. Abr. 92, Justification, pl. 2; Chapman v. Allen, Cro. Car. 271; Bul. N. P.45; Brennan v. Currint, Sayre, 224; S. C. cited 3 Selw. N. P. 1163; Stone v. Lingwood, 1 Str. 651; Collins v. Ongley, cited Selw. N. P. ubi sup.; Stevenson v. Blakelock, 1 Maule & Selw. 535; and see, also, Boyce V. Anderson, 2 Pet. 155.

2. Because the special agreement in this case was inconsistent with the retention of a lien. Peyroux et al. v. Howard, 7 Pet. 324, 344; Chase v. Westermore, 5 Maule & Selw. 180; Scarfe 0. Morgan, 4 Mee. & W. 270; Ştoddard Woolen Man. v. Hunt ley, 8 N. H. 441; Hutchins et al. v. Olcutt, 4 Verm. 549; Bai. ley v. Adams, 14 Wend. 201 ; Welch 2. Mandeville, 5 Wheat. 277.

III. The court erred in refusing to submit to the jury the question whether the work and materials, cr what part thereof, were supplied upon the credit of the building. Hills v. Elliott, 16 S. & R. 56; Hinchman v. Graham, 2 S. & R. 170.

IV. A declaration should have been filed. Foster on Scire Facias, 72 Law. Lib. p. 350.

V. The judgment rendered was general and in personam. The proceeding was in rem, and the last clause of the act of 1833, expressly prohibits the rendition of a judgment in the scire facias, against any other property than the building against which the lien existed.

VI. The court erred in refusing to instruct the jury that the plaintiff was not entitled to recover for the portion of work and materials pe formed, and furnished under the special agreement, more than three months before the claim was filed.

VII. The claim, so far as it related to the special agreement, was not filed in conformity with the requirements of the law, and the court erred in refusing to instruct the jury to that effect. See the claim, R. 9; McDonald v. Lindall, 3 Rawle, 492. " VIII. The court erred in excluding from the jury, evidence of defects in the work and materials furnished, under the special agreement. Withers v. Greon, 9 Howard, 213; Van Buren v. Digges, 11 How..461. Notice of set-off had been given. R. 5.

IX. The court erred in refusing evidence of delay, the demur. rage money mentioned in the agreement, being liquidated damages, and not a penalty. Fletcher v. Dyche, 2 T. R. 32; Huband v. Grattan, 1 Alc. & Napier, 389; Crisdee. v. Bolton, 3 C. & P.

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