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 BOOKS 
 
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 THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 GIFT OF 
 
 School of Law Library- 
 Duke University
 
 THE 
 
 Mechanics Lien Law 
 
 OF 
 
 NEW JERSEY 
 
 CONTAINING 
 
 THE REVISION OF 1898 AND ALL SUPPLEMENTS 
 
 AND AMENDMENTS THERETO, WITH NOTES 
 
 OF DECISIONS, AND A COLLECTION OF 
 
 FORMS; ALSO THE MUNICIPAL 
 
 IMPROVEMENTS LIEN ACT 
 
 OF 1892, WITH NOTES. 
 
 SBCOND KonrioN 
 
 BY 
 
 ED\VARD J. LUCE 
 
 OF THE BERGEN COUNTY BAR. 
 
 NEWARK, N. J. 
 S O N E Y & SAGE 
 
 1910.
 
 T 
 
 \9I6 
 
 Copyright, 1910, 
 By SONEY & SAGE.
 
 
 v3 
 
 
 I>REFi^CE, 
 
 In the present work the writer has included the text of 
 the Mechanics' Lien Act, as revised in 1898, with its subse- 
 quent sujiplenients and amendments, and also' the amended 
 text of the act of 1892, which he has styled the Municipal 
 Improvements Lien Act. He has also essayed to present, in 
 an introductory chapter, an historical summary of the va- 
 rious acts passed by the legislature of New Jersey, relating 
 to building liens, from the earliest act of 1820 to the present 
 time. In doing this he has set out, quite fully, the text of 
 these various earlier acts; so fully, it is believed, that the 
 practitioner will have, in this one manual, a substantially 
 complete apparatus ; and will rarely need to turn to the or- 
 iginal session laws. 
 
 In preparing the notes, he has tried to collect all the de- 
 cisions, and to refer to them on each point that they either 
 decide or discuss. In doing this he has aimed usuaUy to 
 state somewhat fully what they decide or discuss, in lieu 
 of a bare reference to them. In some instances, he has also 
 ventured to comment upon certain of the decisions. He has 
 tried to make this second essay a distinct improvement upon 
 his first attempt; and trusts that it will be found that he 
 has measurably succeeded in that endeavor, and has thus 
 properly shown his appreciation of tlie favor accorded to that 
 previous work. 
 
 In some respects the present text of the Mechanics' Lien 
 Act, and much more that of the Municipal Improvements 
 Act, might very properly be amended. In the case of the 
 former, what is needed is re-editing, rather than any sub- 
 stantial change in its provisions; and in the case of both, 
 no changes should be made unless they are approved by 
 counsel familiar with the previous course of judicial de- 
 cision upon the subject. 
 
 In preparing this edition all acts of the legislature, in- 
 cluding those of the ]3 resent session (1910), have been cov- 
 ered. For decisions, the Atlantic Reporter has been exam-
 
 iv Pkefaoe. 
 
 ined tlirough volume 75; the Law Reports through 47 
 Vroom; the Equity Eeports through 3 Buch. and the Law 
 Journal through Volume 31. 
 
 The legislation of 1910 has heen incorporated in the 
 work by way of addition to the text and notes, as they 
 were prepared before those enactments were passed. This 
 course has been pursued, as the one most likely to prove con- 
 venient and useful. 
 
 In citing cases, I have usually referred to the official re- 
 ports, but in some instances the reference is to the Atlantic 
 Reporter, instead, ^\^lerever such a case has been published 
 in the official reports, its citation thereto will be found to be 
 given in the table of cases at the end of this book. 
 
 August 15, 1910. EDWARD J. LUCE.
 
 Ti^BLE OF CONTENTS. 
 
 Chapter I, Historical Summary of Building Lien Legisla- 
 tion. Page 3. 
 
 Chapter 11. The Act of 1898. Page 31. 
 
 Chapter III. The Mmiicipal Improvements Act of 1892. 
 Page 149. 
 
 Chapter IV. Page 169. 
 
 Table of Cases. Page 211. 
 
 Index. Page 221.
 
 CHAPTER I, 
 
 Historical Summary of the Legislation on the 
 Subject of BxnLDiNG Liens. 
 
 (1)
 
 HISTORICAL SUMMARY OF BUILDING 
 LIEN LEGISLATION. 
 
 As is pointed out by Vice Cliancellor Stevenson, in his 
 valuable opinion in McNah, etc., Co. v. Paiersmi, Bid. Co. 
 &t al., 1 Buch. 133, the legislation, in the State of New 
 Jersey, on the subject of Mechanics' Liens, begins with the 
 act of February 25, 1820 (1820, p. 124). 
 
 In the same opinion, the Vice Chancellor notes that the 
 first Mechanics Lien Law ever enacted in this country 
 was the Maryland Statute (1791, c. 45, H X.) ; that it 
 concerned only ''the territory of Columbia and the City of 
 Washington," and was enacted "for the encouragement of 
 master builders to undertake the building" of houses in the 
 projected City of Washington ; and that the lien, given by 
 it, was given only to those to whom the owner of the prop- 
 erty, subject to the lien, was indebted. 
 
 He further notes that the next statute on the subject, the 
 Pennsylvania act (1803, p. 591), gave the lien only to those 
 to whom the owner of the property was indebted ; but was 
 shortly aftenvard followed by an act (1806, p. 480), nar- 
 row in its territorial scope (the City of Philadelphia), which 
 undertook to give a lien to claimants to whom the owner was 
 not himself indebted. 
 
 He then says : "Here we have the origin of the lien which 
 is charged upon the property of one man to pay another 
 man's debts. This is the statute which first imposed upon 
 the owners of real estate, who desire to improve their prop- 
 erty, and to make contracts for the erection of buildings 
 thereon, the onerous task of discovering who the creditors 
 of their contractors are, and then seeing that their claims are 
 satisfied so far as they have arisen from the furnishing of 
 labor or material to the erection of the owners' buildings." 
 Contrasting this sort of a lien with that given by the earliest 
 acts, he says : "The first lien, the elemental mechanic's lien, 
 (3)
 
 4 Mechanics Lien Law. 
 
 is little more than aai extension of the common Irav lien af- 
 forded to large numbers of purveyors of labor and materials 
 who add value to chattels under contract with the owner 
 thereof. The second lien, arbitrarily gTanted to the con- 
 tractor or materialman between whom and the owner there 
 is no privity whatever, so far as I am aware, has no analogy 
 in the common law, and stands in many respects, directly 
 in conflict with fundamental principles of justice. There are 
 grounds for claiming, as recited in the original Maryland 
 statute of 1791, that a mechanic's lien, for the protection 
 of the party with whom the owner of the building contracts, 
 encourages the erection of buildings, but it would seem 
 that the extension of this lien to the protection of the cred- 
 itors of the party witli whom the owner contracts, must often 
 have the effect to discourage the erection of buildings." 
 
 Again at p. 139, the Vice Chancellor, points out another 
 obvious distinction, between a lien given to a wage earner 
 and one given to a material man or an employer of laborers. 
 He says: '^The general policy of the law may be considered 
 to favor and prefer the claims of all wage earners, whether 
 
 on sea or land ; but there is no principle of law, 
 
 and no general policy or theory recognized by law, apart 
 from the mechanics lien statutes, which specially favors 
 the collection of debts due to contractors and merchants 
 merely because such debts have been created in the erection 
 of buildings whose owners are not liable for such debts." 
 
 These observations of Vice Chancellor Stevenson are a 
 most useful preface to the review of the legislation in this 
 State on the subject of mechanics liens to which we now 
 address ourselves. 
 
 The act of February 25, 1820 (1820, p. 124), as has 
 been said, was the first statute on, the subject passed in this 
 State. Omitting parts not here essential, that act was as 
 follows : 
 
 "An Act securing to mechanics and others, pa^onent for 
 their labor and materials in erecting any house or other 
 building M'ithin the limits therein mentioned. 
 
 "^Wherms Edward Sharp, Esquire, of Camden, in the 
 County of Gloucester, has by his memorial represented to 
 the legislature, that he is about to lay off and divide into 
 building lots, and as soon as may be, sell and dispose of 
 the same, a certain tract of land now owned by him, in and
 
 HisTORiCAX Summary. 6 
 
 adjoining to tlie town of Camden aforesaid, bounded and 
 described as follows^ to wit (here follows a long description 
 of the lands) : 
 
 "And ichereas The said Edward Sharp hath further rep- 
 resented that it would greatly encourage the erection of 
 buildings on the said lots so to be laid off and divided as 
 aforesaid, and thereby more speedily enlarge and improve 
 the said town of Camden, to secure by law to mechanics 
 and others, payment for their labor and materials in erecting 
 any building upon the said tract of land ; all which appear- 
 ing to be just and reasonable, 
 
 Sec. 1. Be IT exacted hy the CoiincU and Geneml As- 
 semhly of this State, and it is hereby enacted hy the authority 
 of the same. That all and every dwell itighoixse or other build- 
 ing hereafter constructed and erected within the tract of land 
 above described, shall be subject to the payments of the debts 
 contracted for or bv reason of anv work done or materials 
 found, and provided by any brickmaker, bricklayer, stone- 
 cutter, mason, lime merchant, carpenter, painter and glazier, 
 ironmonger, blacksmith, plasterer and lumber merchant, or 
 any other person or jjersons employed in furnishing ma- 
 terials for or in the erecting and constructing such house or 
 other building; but if such house or other building should 
 not sell for a sum of money sufficient to pay all the de- 
 mands for work and materials, then and in such case, the 
 same shall be averageil and each of the creditors paid a sum 
 proportioned to their several demands: promded always, 
 that no such debt for work and materials shall remain a 
 lien on the said houses or other buildings longer than two 
 years from the commencement of the building thereof, im- 
 less an action for the recovery of the same be instituted, or 
 the claim filed, within six months after performing the work 
 or furnishing the materials, in the office of the clerk of the 
 inferior court of common pleas of the said county of Glou- 
 cester: and provided also, that each and every person hav- 
 ing received satisfaction for his or their debt, for which a 
 claim shall be filed, or action brought as aforesaid, shall at 
 the request of any person interested in the building on which 
 the same was a lien, or in having the same lien removed, 
 or of his, her or their legal representatives on payment of 
 the costs of the claim or action, and on tender of the costs 
 of office for entering the satisfaction, within six days after
 
 6 Mechajs^ics Lien Law. 
 
 such request made, enter satisfaction of tlie claim in the 
 office of the clerk of the court where such claim shall be 
 filed or such action brought, which shall forever thereafter 
 discharge, defeat and release the same: and if such person, 
 having received such satisfaction as aforesaid, by himself, 
 or his attorney, shall not within six days after request and 
 payment of the costs of the claim or action as aforesaid, and 
 tender as aforesaid, by himself or his attorney duly author- 
 ized, enter satisfaction as aforesaid, he, she or they neglect- 
 ing or refusing so to do, shall forfeit and pay unto the party 
 or parties aggTieved, any sum of money not exceeding one- 
 half of the debt for which the claim was filed, or action 
 brought as aforesaid, to be sued for and recovered by the 
 person or persons injured, in like manner as debts are now 
 recoverable by the laws of this state. 
 
 Sec. 2. And be\ it enacted. That in all cases of lien 
 created by this act, the person ha^dng a claim filed agree- 
 ably to the provisions hereof, may at his election proceed 
 to recover it by personal action, according to the nature of the 
 demand against the debtor, his executors or administrators, 
 or by scire facias against the debtor, and owner or owners 
 of the building, or their executors or administrators; and 
 where the proceeding is by scire facias, the writ shall be 
 served in like manner as a summons, ujDon the person or per- 
 sons named therein, if they can be found within the said 
 county of Gloucester, or are residents therein; or if they 
 cannot be found or are not resident in said county, by fixing 
 a copy of the writ on the door of the building against which 
 the claim is filed, and upon the return of sendee and failure 
 of the defendant or defendants to appear, the court shall 
 render judgment, as in other cases upon writs of scire fa- 
 cias ; but if they or either of them appear, such person or 
 persons may plead and make defense, and the like proceed- 
 ings be had as in personal actions for the recovery of debts : 
 proTided, that no judgnnent rendered on any such writ of 
 scire facias, shall warrant the issuing of an execution except 
 against the building or buildings upon which the lien existed 
 as aforesaid. 
 
 Sec. 3. And be it enacted. That every claim to be filed as 
 aforesaid, shall particularly designate the building for which 
 the work therein to be mentioned was done, or the materials 
 therein to be mentioned were found and provided.
 
 HiSTOKicAL Summary. 7 
 
 Sec. 4. And be it enact ed_, That whenever, within the 
 tract of land above described, any building shall he erected 
 by contract, then and in such case, payment according to such 
 contract, by the owner or owners of the building to the con- 
 tractor or contractors, shall fully and entirely discharge 
 such building from all lien for work done, and materials 
 furnished : promded, the said contract shall be in writing 
 and filed as aforesaid forthwith after the same shall have 
 been made and executed." 
 
 The noticeable features of this first statute are: 
 
 1. It was passed at the request of the land owner. 
 
 2. It gave no lien on the lands, but made the buildings only 
 liable thereto. 
 
 3. It gave the lien to i)ersons between whom and the owner 
 there might be no privity. 
 
 4. It enabled the owner, however, by filing his contract, and 
 paying according to its terms, to free the building from the 
 lien of any one to whom he was not himself debtor (§4.) 
 
 By the act of I'ebruary 19, 1830 (p. 103), the act of 1820 was 
 extended to the territorial limits of the city of Camden. It be- 
 came known thereafter as the "Camden Lien Law." This act 
 of 1830, in §2, repealed the fourth section of the act of 1820 (the 
 section which permitted the owner to file his contract, etc.). The 
 act of 1830 contained no other provisions of consequence. 
 
 By the act of March 7, 1844 (p. 177), the second section of 
 the act of 1830 (p. 103) was repealed, and the fourth section of 
 the act of 1820 was thus revived. The act of 1844 contained no 
 other provisions of present moment. 
 
 By the act of 1846, p. 4; the act of 1846, p. 171; and the act 
 of 1847, p. 56; the act of 1820 was amended in particulars of no 
 present moment. It was never, by any act extended in its appli- 
 cation beyond the territory of the city of Camden. 
 
 By the act of 1852, p. 31, § 2 (February 12), the act of 1820, 
 and all its supplements, were repealed, viz. : 
 
 1820 p. 124. Approved February 25. 
 
 1830, p. 103. Approved February 19. 
 
 1844, p. 177. Approved March 7. 
 
 1846, p. 4. Approved January 29. 
 
 1846, p. 171. Approved April 17. 
 
 1847, p. 56. Approved February 4. 
 
 While the Camden lien law was thus running its course, 
 another series of acts also came into existence. The first of 
 these was the act of March 3, 1835 (1835, p. 148). That act 
 read as follows:
 
 8 Mechanics Lien Law. 
 
 An Act securing to mechanios, and others, payment for 
 their labor and materials in erecting any house, or other build- 
 ing, within the limits therein mentioned. 
 
 "Sec. 1. Be it enacted hy the Council and General 
 Assembly of this state, and it is hereby enacted by the 
 OAithority of the same. That all and every dwelling-house or 
 other building, hereafter constructed and erected, within the 
 limits of the township of Trenton, in the county of Himter- 
 don, and Nottingham, in the county of Burlington, in this 
 state, shall be subject to the payment of the debts contracted 
 for, or by reason of any work done, or materials foimd and 
 provided by any brickmaker, bricklayer, stone cutter, mason, 
 lime-merchant, carpenter, painter and glazier, iron-monger, 
 blacksmith, plasterer, and lumber-merchant, or any other 
 person or persons employed, or furnishing materials for, or 
 in the erection and constructing such house or other build- 
 ing : but if such house or other building should not sell for a 
 sum of money sufficient to pay all the demands, for work and 
 materials, over and above any prior claim or mortgage or 
 judgment against any land owner, on the land on which 
 said building or buildings may be erected, and prior to the 
 erection of said building, or buildings, then, and in such 
 case, the same shall be averaged, and each of the creditors 
 paid a sura proportioned to their several demands; provided 
 always that no such debt for work and materials shall 
 remain a lien on the said houses or other buildings longer 
 than two years from the commencement of the building 
 thereof; unless the claim be filed within six months after 
 performing the work or furnishing the materials, in the 
 office of the clerk of the inferior court of common pleas 
 of the county where such building may be erected, as the 
 case may be, and an action/ for the recovery of the same be 
 instituted within one year after such work done, or materials 
 found ; and all claims for work done, and materials fur- 
 nished, shall be filed within six months from the time that 
 the materials were furnished and the work done, or be for- 
 ever barred and excluded from the provisions and benefits 
 of this act; and 'provided also, that each and every person 
 having received satisfaction for his or their debt, for which 
 a claim shall be filed as aforesaid, or action brought as afore- 
 said, shall thereupon execute a release and discharge for the 
 same, expressing therein the date of the entry of said lien
 
 Historical Summary. 9 
 
 in the clerk's offic€i, of the county where such building is 
 erected, and the amount thereof, and acknowledge the same 
 before a judge of the inferior court of common pleas of the 
 county where the same may be filed, which shall be suifi- 
 oient authority for the clerk to enter satisfaction to the same, 
 upon payment of costs. 
 
 Sec. 2. And h& it enacted, That in all cases of lien cre- 
 ated by this act, the person having a claim filed agreeably 
 to the provisions hereof, may, at his election, proceed to 
 recover it by personal action, according to the nature of the 
 demand, against the debtor, his executors or administrators, 
 or by scire facias against the debtor and owner or owners 
 of the building, or their executors or administrators ; and 
 where the proceeding is by scire facias the writ shall be 
 served in like manner as a summons, upon the person or 
 persons named therein, if they can be found within any of 
 the said counties where such building is erected, or are resi- 
 dent therein ; or if they cannot be found, or are not resident 
 in either of said counties, by aflixing a copy of the wrii 
 on the door of the building against which the claim is filed, 
 and upon the return of service and failure of the defendant 
 or defendants to appear, the court shall render judgment, as 
 in other cases upon writs of scire facias ; but if they, or 
 either of them appear, such person or persons may plead and 
 make defence, and the like proceedings be had as in jjer- 
 sonal actions for the recovery of debts ; and upon judgment 
 being rendered thereupon, execution shall issue agmnst the 
 huUding or hmldmgs and land upon which the same is 
 erected, subject to all prior claims as aforesaid. 
 
 Sec. 3. And he it enacted, That whenever any master or 
 workman shall refuse to pay to any journeyman or laborer, 
 employed by him, in the erection or construting any house 
 or other building, his wages, it shall be the duty of such 
 journeyman or laborer, to give notice, in waiting, to the 
 owner or owners of such house or other building, of such 
 refusal, and the amount due him or them, and so demanded, 
 and the said owner or owners shall thereupon be authorized 
 to retain the amount so due and claimed, by any such jour- 
 neyman and laborer, out of the amount due by him or them 
 to such master workman, and give notice to such master 
 workman of such notice and demand, and if not liquidated 
 and paid by such master workman, such owner or owners,
 
 10 Mechanics Lien Law, 
 
 on being satisfied of the correctness of such demand, shall 
 pay the ^ same; and the receipt of such journeyman and 
 laborer for the same, shall be a sufficient offset in the settle- 
 ment of the accoimts betu-een such owner or owners of any 
 house or otlier building, and such maste:^ workman. 
 
 Sec. 4. And be it enacted, That every claim to be filed 
 as aforesaid, shall particularly designate the building for 
 which the work therein to be mentioned, was done, or the 
 materials, therein to be mentioned were found ; and provided 
 always, that the provisions of this law shall not extend to or 
 include repairs done by any tenant on property rented by 
 him, without the written consent of the owner thereof, that 
 the same may be brought within the provisions of this act. 
 
 Sec. 5. And be it enacted, That whenever within any of 
 the said townships, before named, any building shall be 
 erected by contract, then, and in such case, payment accord- 
 ing to such contract, by the owner or owners of the building, 
 to the contractor or contractors, shall fully and entirely 
 discliarge such building from all lien, for work done and 
 materials furnished ; provided, the said contract be in writ- 
 ing, and filed as aforesaid, within sixty days after the same 
 shall have been made and executed." 
 
 The noticeable features of this act are: 
 
 1. Its territorial limit was the township of Trenton. 
 
 2. It gave the lien against the land as well as against the 
 building. 
 
 3. Like the Camden act, it gave a lien to persons not in privity 
 with the owner; but enabled the owner to escape such liens by 
 filing his contract, etc. 
 
 4. Its most remarkable feature is its third section, which gives 
 a claimant journeyman or laborer a right of recourse against the 
 contract price in the owners' hands by stop notice. 
 
 This act of 1835 (p. 148) was followed by a number of acts 
 extending its territorial scope, but not in any other way modify- 
 ing its provisions. These acts and the extension effected by each 
 are as follows: 
 
 1836, p. 280. Approved March 7, Hunterdon county. 
 
 1837, p. 430. Approved March 10, the county of Somerset and 
 the township of West Windsor, in Middlesex county, and the 
 township of Paterson and Manchester, in Passaic county, 
 
 1839, p. 170. Approved March 8, the township of Chesterfield, 
 in Burlington county. 
 
 1842, p. 24, February 7, the corporation of Jersey City and 
 the townships of Van Vorst and Bergen, in Hudson county. 
 
 1843, p. 75, February 20, the City of Burlington. 
 
 1844, p. 178, March 13, the counties of Monmouth, Salem and
 
 Historical. Summary. 11 
 
 Cumberland, and the township of Acquackanonck, in Passaic 
 county. 
 
 1844, p. 221, March 7, the town of Mount Holly, and one mile 
 from the Court House therein, also the township of Northampton, 
 in Burlington county. 
 
 By the act of April 3, 1845 (p. 215), it was enacted as 
 follows : 
 
 "A Further Supplement to the act entitled, "An act 
 securing to mechanics and others payment for their labour 
 and materials, in erecting any house or other building within 
 the limits therein mentioned," passed March third, eighteen 
 hundred and thirty-five, and to the several supplements to 
 said act. 
 
 Be it enacted by the Setiaie and General Assembly of 
 the State of New Jersey, as follows : 
 
 Sec. 1. The lien given by the act to which this is a sup- 
 plement, and by the several supplements to said act, is 
 hereby declared to extend to all mills and manufactories 
 of every description, for all debts contracted by the owner 
 or owners thereof, or by any other person, with his, her, or 
 their consent in writing, for machinery or fixtures funiished 
 for said mill or manufactory, or w^ork done and materials 
 furnished for or about the erection, construction, or repairing 
 machinery in the same. 
 
 Sec. 2. This act shall be limited in its operation to the 
 county of Mercer." 
 
 All of the foregoing acts were embodied in the Revision of 
 April 15, 1846; R. S., p. 732, §§ 1-7, and 
 
 By the act of February 22, 1849 (p. 86), the provisions of that 
 revision were extended to the lower township in Cape May county; 
 By the act of February 15, 1850 (p. 71), they were extended to 
 the county of Morris, and the township of East Windsor in Mer- 
 cer county and the townships of Mansfield and Chester, in Bur- 
 lington county; and 
 
 By the act of March 7, 1851 (p. 187), they were extended to 
 all the counties of the state, and the time for filing claim was 
 lengthened to a year. 
 
 All of these acts were repealed by the act of 1853, p. 437, § 17, 
 viz.: 
 
 Approved March 3; 
 Approved March 7; 
 Approved March 10; 
 Approved March 8; 
 Approved February 7; 
 Approved February 20; 
 
 1835, 
 
 p. 
 
 148. 
 
 1836. 
 
 P- 
 
 280. 
 
 1837, 
 
 P- 
 
 430. 
 
 1839, 
 
 p. 
 
 170. 
 
 1842, 
 
 P- 
 
 24. 
 
 1843, 
 
 P- 
 
 75.
 
 12 Mechanics Lien Law. 
 
 1844, p. 178. Approved March 13; 
 
 1844, p. 221. Approved March 7; 
 
 1845, p. 215. Approved April 3; 
 
 Rev. April 15, 1846; R. S., p. 792, §§ 1-7; 
 1849, p. 86. Approved February 22; 
 1860, p. 71. Approved February 15; 
 1851, p. 187. Approved March 7. 
 
 Besides the Camden act of 1820 and the Trenton act of 
 1835, there was a third act, which may be called the Newark 
 act, passed February 16, 1847 (p. 57), which was as 
 follows : 
 
 "An act for the better security of mechanics and others 
 erecting buildings, and furnishing materials therefor. 
 
 "1. Be it enacted by the S&nate a/)id General Assernihly 
 of the State of New Jersey, That any person who shall here- 
 after, by virtue of any contract with the owner thereof, or his 
 agent, or any person who, in pursuance of an agreement 
 with any such contractor shall, in conformity with the terms 
 of the contract with such owner or agent, perform any 
 labour, or furnish materials in building, altering, or repair- 
 ing any house or other building, or appurtenances to any 
 house or other building, in the city of ISTewark, in the town- 
 ships of Elizabeth and Rahway, in the county of Essex, and 
 the townships of Woodtjndge and South Brunswick, in the 
 county of M|iddlesex, shall have a lien for the value of such 
 labour and materials upon such house or building and appur- 
 tenances, and upon the lot of land on which the same stands, 
 to the extent of the right, title, and interest, at the time 
 existing, of such owner, in the manner and to the extent 
 hereinafter mentioned ; but the aggregate of all the liens 
 authorized by this act to be created, for the labour performed 
 and materials furnished in building, altering or repairing 
 any house or other building or appurtenances, shall not 
 exceed the price stipulated in the contract with such owner, 
 or his agent, to be paid therefor; and such owner shall not 
 be obliged to pay for or on account of such house, building, 
 or appurtenances, any greater sum in amount, or at a dif- 
 ferent time, than the price so stipulated and agreed to be paid 
 therefor, in and by such contract ; and if the aggregate of 
 liens shall exceed such sum or amount, the same shall be 
 applied to the proportion of the amount of the several liens. 
 
 2. And he it enacted, That the person performing such
 
 Historical, Summary. 13 
 
 labour or furnishing such materials shall cause to be drawn 
 up specifications of the work by him contracted to be per- 
 formed, or materials to be furnished, and stating the price 
 or prices agreed to be paid therefor, and shall file them, or if 
 there be a contract, a true copy thereof, if the same be in 
 writing, in the office of the clerk of the county in which the 
 lien is created, and serve a notice thereof, personally, on such 
 owner, or his said agent, within fifteen days after the mak- 
 ing of such contract, or after commencing such labour or the 
 furnishing said materials ; the said clerks shall provide and 
 keep a book which shall be called ''The Mechanics' and 
 Labourers' Lien Book," in which they shall enter, alphabetic- 
 ally, the names of the owners, and, opposite to them, the 
 names of contractors or labourers, or other person claiming 
 a lien, and the lot and street on which such work is to be 
 done, or materials furnished, at the time of filing such spe- 
 cification or a copy of such contract ; and if the said specifi- 
 cation or copy of contract shall not be filed, and notice sensed 
 as above provided, the said lien, and all claim thereby, shall 
 be forever barred and excluded from the benefits of this act ; 
 the said clerks shall receive for their services required by this 
 section, the sum of eighteen cents. 
 
 "3. And he it enacted. That the lien, so created by this 
 act, shall take effect from such filing and such service of 
 the said notice, and shall continue in full force for the 
 space of six months after the completion of said building, 
 unless discharged, as hereinafter provided; and such lien 
 may be discharged on such docket at any time by said 
 clerk, on the production to, and filing with him of a cer- 
 tificate, signed by the contractor or laborer, or other person 
 claiming such lien, that the claim for which such lien was 
 created is satisfied and discharged ; w^hich certificate shall be 
 acknowledged or proved in the same manner as deeds are re- 
 quired to be acknowledged or proved, to entitle the same to be 
 recorded, and upon paying the clerk the same fees as for fil- 
 ing other papers and entering satisfaction of judgments. 
 
 "4:. And he it enacted, That any contractor or labourer, or 
 any person furnishing materials, in pursuance of any con- 
 tract made by such contractor with such owner, or his agent 
 therefor, or any person in whose favour a lien has been cre- 
 ated by this act, after such labour has been performed, or 
 materials furnished, and payment for the same has became
 
 14 Mechanics Lien Law. 
 
 due, and the said owner, after demand made, shall refuse 
 to pay the same, may enforce or bring such lien to a close, 
 by action or suit at law, in any court of competent jurisdic- 
 tion in the county in which the lien is created ; and if the 
 sum claimed shall be one hundred dollars, or under, the 
 action shall be in the court for the trial of small causes, 
 before any justice of the peace in said city, or in the town- 
 ships, respectively, in which the lien is created ; and the 
 suits shall be conducted, and like proceeding had, in all 
 respects, as in other cases; and if the action shall be for a 
 sum exceeding one hundred dollars, it may be prosecuted, 
 as in other cases, to judgment and execution, and a sale 
 made of the house or building and appurtenances, and lot 
 of land, on which the lien was created, as in other cases of 
 sale of land by virtue of judgment and execution; and if 
 judgment shall be recovered in the court for the trial of 
 small causes, and no appeal be demanded, or other proceed- 
 ings had upon said judgment, the party recovering may file 
 a transcript of said judgment, under the hand and seal of 
 the said justice, in the office of the clerk of said county, with 
 an affidavit of the claimant, that the said judgment is unsat- 
 isfied; and thereupon, the said clerk shall docket and re- 
 cord the said judgment, as in other cases, and execution may 
 issue thereon ; and the said judgment and execution shall 
 have the same force and effect as in other cases, and the said 
 house or other building, and lot of land, upon which the 
 same is a lien, may be sold, as is provided for the sale of 
 land upon judgment and execution ; but no priority shall 
 be given to such judgment and execution over other liens, but 
 the said house or building and appurtenances, and lot of 
 land, or the avails thereof, over and above all prior encum- 
 brances, if any, shall be for the equal benefit of all persons 
 who have obtained a lien, and have a just and legal claim 
 thereon by virtue of this act, in the proportions mentioned 
 in the first section thereof ; but nothing in this act contained 
 shall authorize the claimant to recover or receive any greater 
 sum or amount than he is justly and by law entitled to, and 
 the like costs and fees, as near as may be, shall be recovered, 
 as in other cases, in the said several courts. 
 
 5. And be it enacted. That if any dispute shall arise be- 
 tween the parties in whose favor a lien is created by this 
 act, as to the amount which shall be due to said claimants,
 
 Historical Summary. 15 
 
 or either of them, the said parties shall take measures, within 
 fifteen days after the lien shall take effect, or the claim shall 
 be due, to settle the same by suit at law or otherwise, and 
 bring the same to a close without delay, or be forever debarred 
 of the benefits of said lien; and the owner or owners of 
 said house or other building, and lot of land, upon which said 
 lien rests, may be relieved therefrom, by paying the amount 
 of money which, by contract, he or tliey are legally 
 bound to pay, making a rebate of interest for the time un- 
 expired, if by the contract the same should not be due, to 
 the clerk of the county in which the lien is created, who shall 
 receive and retain the same until the rights of the claimants 
 shall be finally settled; and upon satisfactory evidence of 
 such settlement, the said clerk shall pay to the claimant or 
 claimants the amount which he or they shall be entitled to 
 receive, in whole or part, as provided in the first section of 
 this act, deducting from said deposit one per centum for his 
 services for receiving and paying the same, and the surplus, if 
 any, shall be paid to the depositor; and the certificate of 
 such deposit shall be a bar to all suits or actions against thg 
 said owner or depositor by the claimants aforesaid ; and upon 
 such payment to the said clerk, as aforesaid, the said lien 
 shall cease and determine, and the premises subject there- 
 unto forever discharged therefrom, and satisfaction shall 
 be entered on the docket aforesaid. 
 
 "6. Aiid he it enacted. That any person performing such 
 labour, or furnishing such materials in pursuance of any 
 agreement made by him with the original contractor with such 
 owners, or his said agent, who shall have done the acts pre- 
 scribed by the second section of this act, to create a lien 
 therefor, shall have a lien for only such labour as shall be 
 performed, and for only such materials as shall be furnished 
 subsequently thereto." 
 
 This act was extended to embrace the township of Belleville by 
 the act of March 4, 1847 (p. 165) ; and both acts were by implica- 
 tion repealed by 1853, p. 437, § 17. 
 
 After the course of legislation which we have thus above 
 briefly traced, the legislature, by the act of March 11, 1853 
 (p. 437), undertook to enact a comprehensive measure, ap- 
 plicable to the whole state, and which read as follows:
 
 16 Mechanics Lien Law. 
 
 "An Act to secure to mechanics and others, payment for 
 tlieir labor and materials in erecting any building. 
 
 1. Be it enacted ly the Senate and General Assembly 
 of the State of New Jersey, That every building hereafter 
 erected or built within this state, shall be. liable for the 
 payment of any debt;, contracted and owing to any person 
 for labor performed, or materials furnished, for the erectior 
 and construction thereof, which debt shall be a lien on sucL 
 building, and on the land whereon it stands, including the lot 
 or curtilage whereon the same is erected. 
 
 "2. And he it enacted, That when any building shall be 
 erected in whole or in part by contract in writing, such 
 building, and the land whereon it stands, shall be liable to 
 the contractor alone, for work done or materials furnished 
 in pursuance of such contract; provided, such contract 
 or a duplicate thereof, be filed in the office of the clerk of 
 the county in which such building is situate, before such 
 work done or materials furnished ; and no building or 
 land shall be liable for work done by any person, not em- 
 ployed by the owner or his agent, on his account, 
 
 "3. And he it enacted, That whenever any master work- 
 man or contractor shall, upon demand, refuse to pay any per- 
 son who may have furnished materials used in the erectiom 
 of any such house or other building, or any journeyman or 
 laborer employed by him in the erecting or constructing 
 any building, the wages due to him, it shall be the duty of 
 such journeyman or laborer to give notice in writing to the 
 owner or owners of such building of such refusal, and of 
 the amount due to him or them and so demanded, and the 
 owner or owners of such building, shall thereupon be author- 
 ized to retain the amount so due and claimed by any such 
 journeyman or laborer out of the amount owing by him or 
 them to such master workman or contractor, giving him 
 written notice of such notice and demand ; and if the same 
 be not paid or settled by said master workman or contractor, 
 such owner or owners, on being satisfied of the correctness 
 of such demand, shall pay the same, and the receipt of such 
 journeyman or laborer for the same, shall eaititle such owner 
 or owners to an allowance therefor, in the settlement of 
 accounts between him and such master workman or con- 
 tractor as so much paid on account. 
 
 "4. And he it enacted. That if any building he erected
 
 Historical Summaky. 17 
 
 by a tenant or other person than tte owner of the land, then 
 only the building and the estate of such tenant, or other 
 person so erecting such building, shall be subject to the lien 
 created by this act and the other provisions thereof, unless 
 such buidling be erected by the consent of the owner of such 
 lands in writing, which writing may be acknowledged 
 or proved, and recorded as deeds are, and when so acknowl- 
 edged or proved and recorded, the record thereof and copies 
 of the same duly certified shall be evidence in like mai.ner. 
 
 "5. And be it enacted. That any addition erected to a 
 former building, and any fixed machinery, or gearing, or ^ 
 
 other fixtures for manufacturing purposes, shall be considered >f 
 
 a building for the purposes of this act ; but no building shall ^ 
 
 be subject to the provisions of this act, for any debt con- y. 
 
 tracted for repairs done thereto or alterations made therein. \j 
 
 "6. And be it enacted. That every person intending to 
 claim a lien upon any building or lands by virtue of this act, 
 shall within one year after the labor is performed, or the 
 materials furnished, for which such lien is claimed, file 
 his claim in the office of the clerk of the county where such 
 building is situate, which claim shall contain these matters: 
 
 "I. A description of the building, and of the lot or cur- 
 tilage upon which the lien is claimed, and of its situation 
 sufficient to identify the same. 
 
 "II. The name of the owner or owners of the land or of 
 the estate therein on which the Hen is claimed, 
 
 "III. The name of the person who contracted the debt, or 
 for whom, or at whose request the labor was performed, or 
 the materials furnished for which such lien is claimed, who 
 shall be deemed the builder. 
 
 "IV. A bill of particulars exhibiting the amount and kind 
 of labor }}erformed, and of materials furnished, and the 
 prices at which, and times when the same was performed and 
 furnished, and giving credit for all payments made there- 
 upon, and deductions that ought to be made therefrom, and 
 exhibiting the balance justly due to such claimant; which 
 statement when the work or materials or both, are furnished 
 by contract, need not state the particulars of such labor or 
 materials, further than by stating generally that certain work 
 therein stated was done by contract at a price mentioned ; 
 and such bill of particulars and statements shall be verified 
 by the oath of the claimant, or his agent in said matter, 
 9
 
 18 Mechanics Lien Law. 
 
 setting forth that the same is for labor done or materials fur- 
 nished in the erection of the building in such claim described 
 at the times therein specified, and that the amount as claimed 
 therein is justly due; and when such claim shall not be 
 filed in the manner or within the time aforesaid, or if the 
 bill of particulars shall contain any wilful or fraudulent 
 misstatement of the matters above directed to be inserted 
 therein, the building or lands shall be free from all lien 
 for the matters in such claim. 
 
 "7. And be it enacted. That every county clerk sKall, at 
 the expense of the county, provide a suitable well bound book, 
 to be called the lien docket, in which he shall enter, upon the 
 filing of any lien claim ; first, the name of the owner of 
 the building and land upon which the same is claimed; 
 second, the name of the builder or person who contracted the 
 debt ; third, the description of said buildings and lands ; and 
 fourth, the amount claimed, and by whom claimed; and 
 said clerk shall make a proper index of the same, in the 
 name of the owner of the land and building; and such 
 clerk shall be entitled to twelve cents for filing each claim 
 or contract, and at the rate of eight cents per folio for such 
 entry made in the lien docket, and six cents for every search 
 in the office for such lien, claim or contract. 
 
 "8. And he it enacted. That when a claim is filed agree- 
 ably to the provisions of this act, upon any lien created 
 thereby, the same may be enforced by suit, in the circuit 
 court of the county where such building is situated, which 
 suit shall be commenced bv summons against the builder 
 and the owner of the land and building, in the following or 
 like form: 
 
 "Summon A. B., builder, and C. D., owner, (or if the 
 owner contracted the debt) A. B., builder and owner, to 
 appear before the circuit court, in and for the county of 
 , at , in said county, on the 
 
 day of , that the said A. B., 
 
 (the builder) may answer unto E. F., (claimant) of a plea 
 of (as in other cases of assumpsit, debt, or whatever the 
 proper form of action for the debt may be) for which said 
 E. F. claims a building lien on a certain building and lands 
 of said C. D. (describing the building and lands as in the 
 claim on file). 
 
 "And said summons shall be directed, tested and made
 
 Historical Summary. 19 
 
 returnable, and may be served and returned in the same 
 manner as other writs or summons ; and such summons may 
 be served upon the defendants, or either of them, in any 
 county of this state, by the sheriff thereof, and for this pur- 
 pose the same or a duplicate thereof, may be issued to such 
 sheriff; and if any defendant cannot be found in this state, 
 it may be served upon him by affixing a copy thereof upon 
 such building, and also by sei-ving a copy on such defendant 
 personally, or by leaving it at his residence ten days before its 
 return, which shall be deemed actual service, or in case such 
 defendant resides out of this state, by affixing a copy on such 
 building and sending a copy by mail, directed to him at the 
 post office nearest his residence, or in case his residence is 
 not known to the plaintiff, then by affixing a copy to such 
 building, and by inserting it for four weeks, once in each 
 week, in some newspaper of this state, published or circulat- 
 ing in the county where such building is situate, either of 
 which shall be legal service ; and when an affidavit shall be 
 made and filed of the facts, authorizing and constituting 
 any such service, not made by a sheriff or officer, the suit may 
 proceed against the party so served as if such summons had 
 been returned served by the sheriff. 
 
 "9. And b& it enacted, That the declaration in such case 
 shall, after reciting that both owner and builder were sum- 
 moned and how served, be against the builder, and in the 
 same form as in other cases of assumpsit, covenant, debt, or 
 as the case may be, and shall conclude with an averment that 
 said debt is, by virtue of the provisions of this act, a lien 
 upon such building and lot, describing the same as in said 
 claim; and to said declaration a schedule may be annexed, 
 and the practice, pi^oceedings and pleadings thereon, shall 
 be conducted, and the judgment entered, as in suits in said 
 circuit to recover money due on contract ; and both or either 
 of said defendants may, jointly or severally, have any 
 defence or plea to the same, that might be had by the builder 
 to any action on said contract without this act; and in addi- 
 tion thereto, the owner may plead that said house or land 
 are not liable to said debt, and in such case it shall be neces- 
 sary for the plaintiff, to entitle him to judgment against the 
 house and lands, to prove tliat the provisions of this act, 
 requisite to constitute such lien, have been complied with ; 
 and in case a verdict be rendered or judgment given against
 
 20 Mechanics Lien Law. 
 
 the builder only, judgment shall be given for the land owner, 
 with costs against the plaintiff; and in ease judgment be 
 given for the plaintiff, it shall be entered against the builder 
 when he was actually served with the summons generally, and 
 with costs as in other cases, and when only legal service of the 
 summons has been made, judgment against the owner and 
 also against the builder, shall be specially for the debt and 
 costs, to be made of the building and lands in the declaration 
 described ; and in case no general judgment is given against 
 the builder, such proceedings or recovery shall be no bar to 
 any suit for the debt, except for the part thereof actually 
 made under such recovery. 
 
 "10. And he it enacted. That where judgment is entered 
 generally against the builder, a writ or writs of fieri facias 
 may issue thereon as in other cases; and when judgment 
 shall be against the building and lands, a special writ of 
 fieri facias may issue to make the amount recovered by sale 
 of the building and lands ; and when both, a general and spe- 
 cial judgment shall be given, both writs may be issued either 
 separately or combined in one writ, and one may be issued 
 after the return of the other for the whole or residue as the 
 case may require ; and such judgments may be docketed in 
 the supreme court and execution had thereon as other judg- 
 ments may be. 
 
 "11. A7id he it enacted. That under such special fieri 
 facias, the sheriff or other officer shall advertise, sell and con- 
 vey said building and lot, in the same manner as directed 
 by law in case of lands levied upon for debt ; and the deed 
 given by such sheriff or officer, shall convey to the purchaser 
 said building", free from any former encumbrance on the 
 lands, and shall convey the estate in said lands, which said 
 OT\Tier had at or any time after the commencement of the 
 building, within one year before the filing such claim in the 
 clerk's office, subject to all prior encumbrances, and free from 
 all encumbrances or estates created by or obtained against 
 such owner afterwards, and from all estates and encumbran- 
 ced created by deed or mortgage, made by such owner, or any 
 claiming under him, and not recorded or registered in the 
 office of the clerk of the county at the commencement of said 
 building. 
 
 "12. And be it enacted. That no debt shall be a lien by 
 virtue of this act, unless a claim is filed as hereinbefore pro-
 
 Historical Summary. 21 
 
 vided, within one year from the furnishing the materials or 
 performing the labor for which such debt is due, and such 
 part of any claim filed as may be for work done or materi- 
 als furnished more than one year before the filing of the 
 same, shall not be recovered against the building or land by 
 virtue of this act, nor shall any lien be enforced by virtue 
 of this act, unless the summons in the suit for that 
 purpose shall be issued within one year from the date of 
 the last work done or materials furnished in such claim ; and 
 the time of issuing such summons shall be endorsed on the 
 claim by the clerk, upon the sealing thereof ; and if no such 
 entry be made watliin one year from such last date, such lien 
 shall be discharged ; provided, that the time in which such 
 lien may be enforced by summons may be extended for any 
 further period not exceeding one year, by a written agree- 
 ment for that purpose, signed by said land owner and said 
 claimant, and annexed to said claim on file before such time 
 herein limited therefor shall have expired, in \vhich case 
 the county clerk shall enter the word "extended" on the 
 margin of the lien docket opposite such claim; and any 
 claimant, upon receiving written notice from the owner of 
 the land or buildings requiring him to commence suit on such 
 claim within thirty days from the receipt of such notice, shall 
 only enforce such lien by suit to be commenced within said 
 thirty days. 
 
 "13. And he it enacted. That such land and building may 
 be discharged from any lien created by this act, (1) by pay- 
 ment and a receipt therefor, given by such claimant, which 
 when the same is executed in presence of, and is attested by 
 any officer entitled to take the acknowledgment of the execu- 
 tion of a deed, or when acknowledged or proved before such 
 officer, shall be filed by such clerk, and the words "dis- 
 charged by receipt" shall be entered by him in said lien 
 docket, opposite the entry of said lien, (2) or by paying 
 to said county clerk the amount of said claim ; which amount 
 said clerk shall pay over to said claimant, (3) by the expira- 
 tion of the time limited for issuing a summons on such lien 
 claim, without any summons being issued, or without notice 
 thereof endorsed on said claim; (4) by filing an affidavit that 
 a notice from the owner to the claimant, requiring such claim- 
 ant to commence suit to enforce such lien in thirty clays from 
 the service of such notice : and the lapse of thirty days after
 
 22 Mechanics Lien Law. 
 
 such service without such suit being commenced, or without 
 an entry of the time of issuing such summons being made on 
 such claim. 
 
 "14. And he it enacted, That all lien claims for erecting 
 the same building shall be concurrent liens upon the same 
 and the land whereon the same is erected, and shall be paid 
 pro rata out of the proceeds thereof, when sold by virtue of 
 this act; and for the purpose of distribution, the sheriff or 
 other officer shall pay such proceeds to the clerk of said cir- 
 cuit court, to be by said court distributed among such claims 
 filed, or as shall be filed according to this act before petition 
 filed in said court for distribution thereof, and among such 
 only ; but the amount paid to any claimant shall not be paid 
 over to him until after his claim shall have been filed for 
 three months; and if a caveat be filed against such claim by 
 the owner, or by any claimant or claimants owning together 
 one-third of the lien claims filed against such building, then 
 not imtil such claim shall have been established by a special 
 judgment thereon; and such circuit courts shall have full 
 power to adopt such rules of practice and pleading, and to 
 make all orders necessary and proper to carry into effect the 
 objects of this act, and to secure a proper disposition of the 
 proceeds of sales to all persons entitled thereto by the provi- 
 sions of this act. 
 
 "15. And he it enacted. That any land owner desiring to 
 contest any claim and to free his house and land from the 
 lien thereof, may pay to the county clerk the amount of such 
 claim, with interest thereon, until six months after such pay- 
 ment, and twenty-five dollars in addition thereto, with notice 
 to said clerk not to pay over the same imtil such claim be 
 established by suit; which sum, or so much thereof as is 
 necessary, shall be paid to such claimant upon his obtaining 
 judgment against such buildings and lands, in the manner 
 prescribed in this act, and said claim shall, from the pay- 
 ment of such money to such clerk, be a lien on said money, 
 and said buildings and lands shall be discharged therefrom, 
 and no execution shall issue against the same by virtue of 
 such judgment; but if such suit is not commenced within 
 the time which the said lands would be discharged by the 
 provisions of this act without suit, or in case judgment be 
 given therein without being against said lands, said sum shall 
 be repaid to him by said clerk, and if judgment be given
 
 HlSTOKlCAL SUMMAEY. 23 
 
 against said lands for an amount less than that so deposited, 
 then the surplus shall be returned by said clerk to said land 
 owner. 
 
 . "16. And be it enacted. That where a summons has been 
 issued and served in any way prescribed by this act, to 
 enforce any building claim lien against any building and 
 lands, all other suits commenced by sunmions subsequently 
 issued, to enforce concurrent liens against the same building 
 and lands, may be stayed by the claimant therein or by order 
 of the court, until judgment in such first suit, unless notice to 
 enforce such other claim has been sensed, or a caveat has been 
 filed against paying the same, as hereinbefore provided. 
 
 "17. And he it e<nacted. That the act entitled 'An act 
 securing to mechanics and others payment for their labor 
 and materials in erecting any house or other building within 
 the limits therein mentioned,' approved April fifteenth, eigh- 
 teen hundred and forty-six, and all supplements thereto, and 
 all other acts and parts of acts contrary to, or within the 
 purview of this act, are hereby repealed ; but such repeal 
 shall not affect any right acquireil or lien filed under said 
 acts, but the same shall remain and may be sued and prose- 
 cuted in all things as if said acts had not been repealed." 
 
 Subsequently various acts supplemental to the act of 1853, p. 
 437, or in modification thereof, were passed, viz.: 
 • 1855, p. 211. Approved March 9; 
 
 1859. p. 451. Approved March 16; 
 
 1860, p. 689. Approved March 22; 
 1863, p. 275. Approved March 14; 
 1866, p. 1015. Approved April 6; 
 1868, p. 369. Approved March 17; 
 
 1870, p. 65. Approved March 17; 
 
 1871, p. 66. Approved March 28; 
 1873, p. 71. Approved March 26; 
 1876, p. 66. Approved March 30. 
 
 The following is a brief review of these various acts : 
 The act of 1855, p. 211, extended the lien to mills, manufac- 
 tories, and the land whereon the same were erected for debts con- 
 tracted by the owner or with his written consent for repairs to 
 fixed machinery, etc. 
 
 The act of 1859, p. 451, extended the lien to all buildings and 
 the land for debts contracted by the owner or with his written 
 consent for repairs to such buildings: "provided, that the agree- 
 ment (presumably the agreement witnessing the owner's assent) 
 be made a matter of record in the office of the clerk of the 
 county."
 
 24 Mechanics Lien Law. 
 
 The act of 1860, p. 689, defined and enlarged the meaning of 
 the terms "fixtures for manufacturing purposes," as used in the 
 fifth section of the act of 1853. 
 
 The act of 1863, p. 275, was sa important an act that it 
 is here set out in full : 
 
 "A Supplement to the act entitled 'An act to secure to 
 mechanics and others payment for their labor and materials 
 in erecting any building,' approved March eleventh, eighteen 
 hundred and fiftv-three. 
 
 "1. Be it enacted^ hy the Senate and General Assembhj 
 of the State of New Jersey, That the sale under a special 
 scire facias, authorized by the eleventh section of the act. to 
 which this is a supplement, shall convey the estate of the own- 
 er in the lands and in the buildings, subject to all mortgages 
 and other incumbrances created and recorded or registered 
 prior to the commencement of the building; and 
 in case of gearing or machinery, the bringing the same 
 upon the premises, shall be such commencement ; and such 
 prior incumbrances shall have priority to all subsequent 
 builders' liens upon said lands and upon all erections thereon, 
 except such as by law may be removable as between landlord 
 and tenant, which may be sold and removed by virtue of any 
 building lien for the construction of the same free from such 
 prior incumbrances. 
 
 "2. And he it enacted. That the third section of the act 
 to which this is a supplement, be amended by authorizing 
 and empowering any person who may have furnished mate- 
 rials used in the erection of any such house or building, to 
 give the notice to the owner or owners of such building au- 
 tliorized by said section and the materialman shall have all 
 the rights and remedies conferred by said section upon the 
 journeyman or laborers. 
 
 "3. And he it enacted. That when the curtilage or lot on 
 which the building is erected shall not be surrounded by an 
 enclosure separating it from adjoining lands of the same 
 owner, then the lot on which the building lien shall extend, 
 shall be such tract as in the place of its location is usually 
 known and designated as a building lot, and bounded by the 
 lines laid down for its boundaries on any map made for the 
 sale of it or on file in any public office, to lay out in lots the 
 tract including it, and in cases where no such map exists.
 
 Historical Summary. 25 
 
 such lot may be designated bv the claimant in the lien claim, 
 but in no such case shall the same exceed half an acre, or 
 include any building not used and occupied with, or intended 
 to be used and occupied with, the building for the cost of 
 which the lien is claimed. 
 
 "4. And he. it enacted. That the words: 'and no building 
 or lands shall be liable for work done by any person not 
 employed by the owner or his agent on his account,' con- 
 tained in the latter part of the second section of the act to 
 which this act is a supplement, be and the same is hereby 
 repealed. 
 
 ''Approved March 14, 1863." 
 
 Our attention is at once arrested by the second section of this 
 act^ which extended the right, to give a stop notice, to material- 
 men. The act of 1853, p. 537, § 3, as will be seen by reading it, 
 did not do that, in that it omitted any provision for notice by 
 the materialman to the owner, and failed to provide that the 
 owner should retain the amount due to the materialman and 
 pay it to him. as was noted in Carlisle v. Knayp, 22 Vroom 329. 
 
 The repealer in section 4, is also significant. 
 
 The act of 1866, p. 1015, extended the lien to buildings and 
 lands, when the latter were the lands of a married woman, 
 whether the debt was for the erection or reparation of a building; 
 provided, the married woman consented in writing to the work 
 done or materials furnished before a claim was filed. 
 
 The act of 1868, p, 369, related to the description of the lot 
 or curtilage which might be subject to lien and to the amendment 
 thereof before final judgment. 
 
 The act of 1870, p. 65, provided that a married woman's lands 
 should be liable to a lien, etc., unless she filed a written dissent, 
 etc 
 
 The act of 1871, p. 66, extended the lien to all docks, wharves 
 and piers upon any navigable river, and the land in front of which 
 they might be erected and the interest of the owners of such lands 
 in the soil or waters of such river, etc. 
 
 The act of 1873, p. 71, provided for apportioning a claim be- 
 tween two or more buildings built by the same person or persons. 
 
 The act of 1876, p. 66, relieved married women's lands of the 
 liability imposed by the act of 1870, p. 65, when the woman owner 
 did not authorize the work or was without knowledge of its be- 
 ing done. J- J • 
 
 All of the acts thus reviewed were substantially embodied in 
 the Eevision of March 27, 1874, as printed in the edition of 1877 
 at p. 667, §§ 1-28, which is readily accessible to practitioners, both 
 in that revision or in the Gen. Sts., p. 2063, §§ 1-28. 
 
 Most of the acts passed since 1876 and prior to the revision of 
 1898 are to be found in the Gen. Sts., p. 2070, §§ 29-48. These 
 are:
 
 26 Mechanics Lien Law. 
 
 1877, p. 153. 
 
 1878, p. 243. 
 
 322. 
 
 1879, p. 77. 
 
 1883, p. 24. 
 
 1884, p. 260. 
 1888, p. 423. 
 1893, p. 385. 
 
 1895, p. 313. 
 
 Two acts not included in this list deserve a word. 
 
 By the act of 1890, p. 479, the provisions of the second section of 
 the Revision of 1874, protecting the owner who had filed his con- 
 tract, were coupled with a requirement that there must be a re- 
 lease of claims, pursuant to a stipulation to be inserted in the 
 contract. 
 
 By the act of 1892, p. 358, the act of 1890, p. 479, was amended 
 in sundry particulars. 
 
 Both of these acts were repealed by the act of 1895, p. 313, § 9. 
 They were certainly extreme measures. The first one imposed 
 upon the owner, already sufficiently burdened with liabilities it 
 would seem, the duty of procuring releases from all possible claim- 
 ants, in order to be safe; and left him no means of compelling 
 the production of such releases, if he had been unwary enough 
 to omit a stipulation for their production from his contract. It 
 also failed to provide, in express terms at least, that an owner 
 paying upon the faith of such releases, and the contractor's affi- 
 davit that there were no other persons who could claim, should 
 be protected as against other claimants. 
 
 The act of 1892 remedied both these glaring defects by pro- 
 viding' that the contractor should produce the necessary releases 
 and affidavits before he could demand payment, and whether the 
 contract called for such production or not ; and by making a 
 payment upon such releases and affidavit a good bar against all 
 claimants who had not given the owner written notice that they 
 had done work or furnished materials, or were about to do so. 
 The cases decided under these acts were, Anderson Lumber Co. 
 V. Friedlander, 25 Vroom 375; Magowan v. Stevenson, 29 Vroom 
 31; Bruce v. PearsaU. 30 Vroom 62. 
 
 After the General Statutes, and prior to the Revision of 1898, 
 two acts were passed : 
 
 1896, p. 103. 
 1896, p. 198. 
 
 . Both were embodied in the Revision of 1898. The following 
 table will, perhaps be useful, to show where, in the act of 1898, 
 the provisions of any previous act, from the time of the act of 
 1853, are embodied or are covered by similar or other provisions, 
 etc. 
 
 1853, p. 437, § 1 1898. p. 538, § 1 
 
 2 2 
 
 3 3 
 
 4 7
 
 HiSTOElCAI. SUMMAEY. 27 
 
 5 8 
 
 6 16 
 
 7 17 
 
 8 23 
 
 9 24 
 
 10 27 
 
 11 28 
 
 12 18 
 
 13 31 
 
 14 29 
 
 15 32 
 
 16 30 
 
 1855, p. 211, § 1 I 
 
 1859, p. 451, § 1 1" 
 
 1860, p. 689, § 1 8 
 
 1863, p. 275, § 1 28 
 
 2 3 
 
 3 21 
 
 4.'.'.'.'.'.'.'. 2 
 
 1866, p. 1015, § 1 Omitted, see now 13 
 
 2 26 
 
 1868, p. 369, § 1 See now 21 
 
 ^ ■ 
 
 1870, p. 65, § 1 13 
 
 1871, p. 66, § 1 11 
 
 1873, p. 71, § 1 22 
 
 1876, p. 66, § 1 13 
 
 1877, p. 153, § 1 If 
 
 1878, p. 243, § 1 16 
 
 322, § 1 Omitted, see lo 
 
 1879, p. 77, § 1. '.'.'. H 28 
 
 1883, p. 24, § 1 10 
 
 1884, p. 260, § 1 23 
 
 2 24 
 
 1888, p. 423, § 1 18 
 
 1890, p. 479, § 1 Omitted 
 
 2 Omitted. 
 
 1892, p. 358, § 1 Omitted. 
 
 2 Omitted. 
 
 1893, p. 385, § 1.. 1898, p. 538, § 12 
 
 2 12 
 
 1895, p. 313, § 1 2 
 
 9 3 
 
 o 4 
 
 4 16, 18 
 
 5;:::;:::; 5 
 
 n 15, 28 
 
 7:::::::::::..: 6 
 
 1896, p. 103, § 1 31 
 
 198,§ 1 16,18
 
 28 Mechanics Lien Law. 
 
 There are three reported cases arising under the lien acts. 
 earlier than the act of 1853. 
 
 The first of these cases is Sherer & Nichols v. Collins, 2 Harr. 
 181. In this case the claim was for labor and materials in erecting 
 a paper mill, and was filed under the act of 1835, p. 148. The 
 claimant brought assumpsit and had judgment. Then other gen- 
 eral judgment creditors of the owner attempted to question this 
 judgment (upon a case stated and brought into the Supreme 
 Court as upon a writ of error) upon the ground that the claim- 
 ant's judgment was for a sum which included particulars for 
 which he had no right of lien. It was held that the judgment 
 could not be thus collaterally questioned by one not a party to 
 it; but it was intimated, by Hornblower, C. J., that in a suit 
 to enforce a lien, whether by scire facias or assumpsit, it would 
 be irregular to include any demand beyond that for which the 
 statute gives the lien. The opinions of the justices in the case 
 note that the construction of the act of 1835 bristled with diffi- 
 culties, not to say impossibilities. 
 
 The second case is Vandyne v. Vayiness, 1 Halst. Ch. 485, and 
 arose under the act of 1835. The chancellor held that the right of 
 lien extended to so much of the whole tract upon which a build- 
 ing was erected, as would, with the building, suffice to satisfy 
 the claim. 
 
 The third case was Sinnichsov v. Lynch, 1 Dutch. 317. It 
 arose under the Revision of 1846, as amended by the act of 
 1851, p. 187. It decided that on scire facias to enforce the lien 
 given by the act, the claimant's debtor as well as the owner of 
 the building and land must be joined, as a party defendant.
 
 CHAPTER II. 
 
 The Text of the Act of 1898 (Revision), with 
 
 All Subsequent Related Acts and 
 
 Notes of Pertinent Decisions. 
 
 (20)
 
 MECHANICS LIEN LAW. 
 
 Revision of 1898. 
 
 TITLE OF STATUTE. 
 
 "An Act to secure to mechanics and others payment for 
 their labor and material in erecting any building (Revision 
 of one thousand eight hundred and ninety-eight)." 
 
 1898, p. 538, Approved June 14, 1898. 
 
 The title of the act of 1898 is the same as that of the act of 
 1853, p. 437. 
 
 CONSTITUTIONALITY OF THE STATUTE. In Gardner 
 & Meeks Co. v. New York Central R. R. Co., 43 Vr. 257, the 
 Court of Errors and Appeals holds that the mechanics lien act 
 does not deprive an owner of property, without due process of 
 law, nor does it interfere with his right to acquire and enjoy 
 property, and is not, therefore, unconstitutional on either ground. 
 
 CONSTRUCTION OF THE STATUTE. The remedy, under 
 the statute, must not be extended beyond its obvious design and 
 clear requirements. Ayres v. Revere, 1 Dutch. 474; Associates v. 
 Davidson, 5 Dutch. 415 ; Griggs v. Stone, 22 Vroom 549 ; Scudder 
 V. Harden, 4 Stew. 503. 
 
 In Ayres v. Revere, Chief Justice Green said: "The lien and 
 the mode of enforcing it are creatures of the statute. They are 
 unknown to the common law. The statute charges the property 
 of one man with the debt of another. Though the owner may 
 have paid the contractor in full for the erection of the building 
 and for all the materials used in its construction, his property is- 
 nevertheless charged by the default of the contractor with the 
 repayment of the debt. It gives preference to one clAss of cred- 
 itors over another. The man who has furnished a brick, or a 
 stone, or a plank, for the erection of the building, or who has 
 labored a day in its construction is secured his remuneration in 
 full, while those who have furnished provisions for the owner and 
 his family, who have supplied them with the necessaries of life, 
 or who have toiled in their service, are deprived of all means of 
 recompense until the favored creditors are satisfied. It reaches 
 to the claims of mortgage and judgment creditors, and super- 
 
 (31)
 
 32 Mechanics Lien Law. 
 
 sedes even these eucumbrances, if created after the building is 
 commenced, in favor of the subsequently created debts of a fa- 
 vorite class of creditors. It gives to the favored creditors a remedy 
 not only against his debtor, but against an innocent third party, 
 with whom he has never contracted, and for whom he has never 
 labored. It gives him a cimiulative remedy, which, if enforced, 
 may compel the owner to pay a debt which he has once satisfied 
 in full; and it may be, as in this instance, that this hardship 
 will result from mere inadvertence in filing his contract, or from 
 misapprehension of the precise meaning of a statute. 
 
 These suggestions are not made with the design of impugning 
 the wisdom or the policy of the law, but to show that the statute 
 is not of that purely remedial character which calls for a pecu- 
 liarly liberal construction at the hands of the court. The statute 
 
 has prescribed the mode of proceeding to enforce the lien. 
 
 Neither a sound construction of the statute, nor the promotion 
 of the ends of justice requires that the statutory remedy should 
 be extended beyond the obvious design and clear requirements of 
 the law." 
 
 Justice Whelpley, in Associates, etc., v. Davidson, said: "The 
 lien law, so far as it operates to charge the landls of a party with 
 a debt not contracted by him, or for his ultimate benefit, should 
 be strictly construed." 
 
 Vice Chancellor Van Fleet, in Dalrymple v. Ramsey, 18 Stew. 
 494, said: "The statute is an innovation. The lien and the 
 mode of enforcing it are creatures of the statute. The lien is 
 just what the statute makes it. The courts have no power either 
 to enlarge or lessen it. Independent of the statute, a debt con- 
 tracted in the erection of a building stands no higher, in point 
 of natural justice, than many other debts, and the lienable qual- 
 ity of such a debt should, therefore, be rigidly restricted to just 
 what the legislature has made it." See also Bartley v. Smith, 14 
 Vroom 321. 
 
 In McNah. etc., Co. v. Paterson Building Co., 2 Buch. 929, the 
 Court of Errors and Appeals says, per Dill, J.: "It may be 
 argued with force that Mechanics Lien laws are, as a rule, to 
 be construed strictly against the claimant and in favor of the 
 the owner of the land in so far as they require the owner to pay 
 a debt that he did not contract, and for a consideration that he 
 may already have paid to the contractor." 
 
 See also the elaborate opinions of Vice Chancellor Stevenson, 
 in McNah, etc., Co. v. Paterson Bid. Co., 1 Buch. 133, and Beclc- 
 hard v. Rudolph, 2 Rob. 315. Although the Court of Errors and 
 Appeals did not adopt his view of the construction that should 
 be given to the third section of the act, on the point there in 
 question ; it will not do to assume that the court is committed to 
 the view that a provision of the act, which is plainly in deroga- 
 tion of common right, is not to be construed strictly in favor of 
 the owner; although it is somewhat difficult to perceive how the 
 third section can be considered as being not in such category. 
 Perhaps the true solution is that the construction adopted by
 
 Kevision of 1898, § 1. 33 
 
 the Court of Errors and Appeals, in the Beckhard and McNah 
 cases (2 Eob. 740; 2 Buch. 929), is not a liberal construction at 
 all, but is one which results from the plain and usual meaning 
 of the words of the act, read in the light of its "obvious design 
 and clear requirements." When there is room for construction at 
 all the settled canons of the law must of course apply, and the 
 dis^tinctions pointed out by Vice Chancellor Stevenson, in the 
 McNah case, as to the nature of the transaction, the legal rela- 
 tion of the parties, and the general jwlicy of the law, are always 
 material to be attended to. 
 
 Building and curtilage liable to lien for the erection and 
 construction of building". 
 
 1. Every building hereafter erected or built ^ within this 
 state shall be liable for the payment of any debt contracted 
 and owing to any person for labor jDerformed or materials 
 furnished for the erection and construction thereof,^ which 
 debt shall be a lien ^ on such building, and on the land 
 whereon it stands,^ including the lot or curtilage whereon 
 the same is erected.^ 
 
 1898, p. 538, § 1; 1853, p. \37, § 1; Revision IBOJf, § 1. 
 This section is identical with ^ 1 of the act of 1863, p. 
 ■^37, and with ^ 1 of the Revision of 187Jf. 
 
 1. A HEATER AND RANGE are part of the building, al- * 
 though slightly attached thereto, if put in by the owner as part of 
 the building. Erdman v. Moore, 29 Vroom 445; Porch v. Agnew 
 Co., 4 Eob. 328 (Grey, V. C). 
 
 A TWELVE FOOT RANGE, THREE FIRES, THREE 
 OVENS, built into the building by brick flues coimecting with 
 the chimneys, BOILER and STEAM PIPE coming through the 
 floor and connecting with the boiler of the house, large HOTEL 
 VEGETABLE KETTLES connected with the steam pipes, A 
 TWENTY-FIVE FOOT HOOD over these fixtures and various 
 other KITCHEN EQUIPMENTS fitted to the supply and waste 
 pipes of the building, all in a hotel kitchen and attached with 
 the owner's intention, and that of the party supplying them, that 
 they should become parcel of the hotel structure, are the subject 
 of a mechanic's lien. 
 
 ADDITIONS to a building, and fixed machinery or gearing 
 or other fixtures for manufacturing purposes are a building, by 
 virtue of § 8, which see. In many instances these fixtures are 
 part of the realty, without reference to the provisions of § 8. 
 Bates Co. v. Trenton, 41 Vroom 684 (E. & A.). 
 
 ALTERATIONS of an old building are not a building erected 
 
 or built, within the meaning of this section; although they make 
 
 such changes that, in a fair sense, it might be said to be a new 
 
 structure. Combs v. Lippincoll, 6 Vroom 481. But see § 10, by 
 
 3 
 
 1^1 
 
 f^iH-
 
 34 Mechanics Lien Law. 
 
 which (since 1883) a mechanic's lien is extended to a building and 
 its curtilag-e, for alterations. 
 
 KEPAIKS to a building. The act of 1859 extended the lien, 
 against the building and curtilage, to the case of repairs, with 
 certain restrictions as to other encumbrancers. See § 10. 
 
 THE COST OF HAULING engines from the freight station 
 to their site in the power house is properly included in the claim 
 for erecting them, when the duty to haul them was part of the 
 contract to erect them. Bates Co. v. Trenton Co., 41 Vroom 684 
 (E. & A.). 
 
 2. AN ARCHITECT who draws plans and superintends the 
 building may have a lien. Mutual Benefit, etc., Co. v. Rowand, 
 11 C. E. Gr. 389. 
 
 ENTIRE CONTRACT. A claimant who has furnished ma- 
 terials, under an entire contract between him and the builder, 
 may have a lien upon a quantum valebat, if the contract, though 
 unfulfilled, was lawfully rescinded. Brewing Co. v. Donnelly, 30 
 Vroom 48. In the absence of such rescission, the right to file a 
 lien accrues only after the contract has been completed. Edwards 
 V. Derrickson, 4 Dutch, 39 at p. 68 ; 5 Dutch. 468. 
 
 MATERIALS NOT USED. The right to the lien for ma- 
 terials depends upon the fact that the debt was incurred and 
 the materials furnished for the building; and, in the absence 
 of fraud, it is immaterial that they were not in fact so used. 
 Morris Co. Bank v. Rockaivay Mfg. Co., 1 McCart. 189; Campbell 
 V. Taylor Mfg. Co.. 51 Atl. R. 723; Bell v. Mecum, 68 Atl. R. 149 
 (E. & A.). 
 
 OWNER'S CONSENT. See §§ 7 and 13 post. 
 
 WHO MAY HAVE A LIEN. All persons who, under any cir- 
 cumstances whatever, furnish labor or materials for the building 
 may have a lien ; unless precluded by the fact that a written con- 
 tract has been filed. Van Pelt v. Hartough, 2 Vroom 331; Mur- 
 phy V. Nicholas, 37 Vroom 414; Coddington v. Beehe, 2 Vroom 
 477; Gardner & Meeks Co. v. New York Ceritral R. R., 43 Vroom 
 257 (E. & A.) ; Snyder v. New York Co., 43 Vroom 262. 
 
 In the absence of conflicting claims between the i)erson who 
 actually does the work and the employer of such person, the em- 
 ployer is entitled to have a lien therefor. Bates v. Trenton Co., 
 41 Vroom 684 (E. & A.). 
 
 ASSIGNABILITY OF LIEN CLAIM. There are, as yet. no 
 reported cases on this subject in this State. It is generally held 
 in other jurisdictions, and it would seem to be beyond question 
 here, that a perfected lien claim may be assigned the same 
 as any other chose in action may be. Like a mortgage, the lien 
 claim is a security for the debt, so that, presumably, an assign- 
 ment of the debt would, ipso facto, assign the lien, in the ab- 
 sence of any thing to control otherwise ; while an assignment of 
 the lien alone would not probably assign the debt itself. 
 
 Whether recent statutes enabling the assignee of a chose in 
 action to bring suit in his own name would apply, or not, is, 
 of course, a question for consideration; but the better practice.
 
 Revision of 1898, § 1. 35 
 
 in any ease, would be to bring suit in the name of the claimant 
 for the benefit of the assignee. 
 
 It probably is not necessary that the assignment should ex- 
 pressly confer the right to enforce the claim in the name of the 
 claimant, but prudence will obviously dictate that an assignment 
 should be so drawn. 
 
 As to the matter of assigning a right to a lien, before the as- 
 signor has himself perfected it, that is, an inchoate lien, there is 
 much more doubt. Decisions in other jurisdictions vary upon 
 that question, some holding that an inchoate lien can and others 
 that it cannot, be assigned. Reference should be had to works 
 which treat generally upon the subject. The scope of this manual 
 is purjwsely limited to the decisions of the courts of this State, 
 and the only case that refers to the subject at all, so far as I 
 am aware, is South End Imp. Co. v. Harden, 52 Atl. 1127, in 
 which it was found unnecessary to consider whether the assignee, 
 or the assignor, of a debt for materials should take the steps nec- 
 essary to perfect the inchoate lien, by giving notice, ete. See also 
 Hall'v. Jersey City, 17 Dick. 489. 
 
 3. A LIEN ATTACHES as of the date the building was be- 
 gun. Manhattan, etc., Co. v. PauUson, 1 Stew. 304. See § 28 and 
 cases there cited, as to what is the beginning of the building. 
 
 WAIVER OF LIEN. The benefit of the statute may be 
 waived by taking security in another form. QuicJe v. Corlies, 10 
 Vroom 11. 
 
 TAKING NOTES for a lien claim is no abandonment of the 
 right to a lien. Edwards v. Derrichson, 4 Dutch. 39 ; SUngerland 
 V. Lindsley, 1 N. J. L. J. 115 ; nor is an agreement to take them 
 a waiver, France v. Netherwood, 2 N. J. L. J. 90; but if a note 
 is taken, it suspends the right until the maturity of the note, Dey 
 V Anderson, 10 Vroom 201; or until its surrender and cancella- 
 tion, perhaps. See Burd v. Huff, 17 N. J. L. J. 80. Where a 
 material man accepted two notes, maturing at different times, lor 
 a general account current, a part of which was for the materials 
 for which he claimed a lien, and nothing was said, as to how the 
 notes were to be applied to the account, and the note first matur- 
 ing was not paid, and the other did not mature until after the 
 time to file a lien claim would expire; it was held, by the Court 
 of Errors and Appeals (Dixon, J., dissenting), that the note which 
 had not matured must be applied to the earliest items of the 
 account, pro tanto, even although the result was to deny the lien, 
 as the items included in the lien claim were among such earlier 
 items. Dey v. Anderson. 10 Vroom 201. ^-,^^-r^ . ^ 
 
 ACCEPTING AN ASSIGNMENT OF THE CONTRAC- 
 TOR'S RIGHTS under a building contract, as collateral security, 
 does not impair the assignee's right to claim a lien for his ma- 
 terials or labor furnished. Stevenson v. Meeker, 18 JN. J. L. J. 
 51; Taliaferro V. Steve7ison, 29 Yroom 165 -dav tat 
 
 A BUILDER'S AGREEMENT TO TAKE HIS PAY IN 
 MORTGAGES precludes his right to claim a lien, when it does 
 not appear that there has been any fraud, or any inability or re-
 
 36 MECHAisrics Lien Law. 
 
 fusal to give them in compliance with the contract, upon demand. 
 
 Weaver v. Demuth, 11 Vroom 238. 
 
 4. A LOT 9F LAND UNDER TIDE WATER, over which a 
 floating dock is constructed and moored, is not a lot or curtilage 
 within the meaning of this section, Coddington v. Beehe, 2 Vroom 
 477; but see now, § 8. 
 
 5. THE LAND OF A MINOR cannot be subjected to a me- 
 chanic's lien. Hall v. Achen, 18 Vroom 340; nor, prior to the 
 married woman acts, could that of a MARRIED WOMAN, John- 
 son V. Parker, 3 Dutch. 239. 
 
 MUNICIPAL LANDS, cannot be liable to a mechanic's lien; 
 when such lands are used, or designed to be used, for its public 
 purposes. Frank v. Freeholders^ 10 Vroom 347. But see below 
 imder § 3. 
 
 A MERE TRANSITORY SEIZIN is insuiiicient to support a 
 lien, Clark v. Butler, 5 Stew. 664; Macintosh v. Thurston, 10 C. E. 
 Gr. 242. 
 
 ESTATE OF OWNER. The owner of the building must have 
 some estate in the land, in order that a lien may attach to either 
 the land or the building, Coddington v. Beehe, 2 Vroom 477; Bab- 
 hitt V. Condon, 3 Dutch. 154; Leaver v. Kilmer, 59 Atl. 643 (E. & 
 A.) ; Wm. H. Atkinson Co. v. Shields Co., 72 Atl. 81 (E. & A.) ; 
 but it is not necessai-y that he should have an estate when the 
 building is begun, § 28 gives the lien on "the estate which the 
 owner had at the commencement of the building, or which he 
 subsequently acquired," and the right having once arisen, remains 
 effective against any subsequent grantee. Stewart Co. v. Trenton 
 Co., 42 Vroom 568 (E. & A.). 
 
 ESTATE BY ENTIRETY. Prior to the married woman's acts, 
 the estate of the husband, for the joint lives, was the only estate 
 which could be subjected to a mechanic's lien. Washburn v. 
 Burns, 5 Vroom 18. In the case last cited the husband contracted 
 to have the building erected, the wife gave no consent; and it 
 was held, that the husband's estate, only, was liable to the lien. 
 The case arose and was decided before 1870, when the act which 
 is now section 13 ix)st, was passed. 
 
 EQUITABLE ESTATES. In Corcorari v. Jones, 12 N. J. L J. 
 38, per Scudder, J., at circuit, it was held that a court of la.w, in 
 a suit on a lien claim, cannot take cognizance of an equitable 
 estate, such as the right of a tenant to exercise an option of pur- 
 chase, on the expiration of his tenancy. In Dalrymple v. Ramsey, 
 18 Stew. 494, V. C. Van Fleet, in an able opinion, held that the 
 statute does not extend to equitable, but only to legal, estates; 
 and he, therefore, held that a claim could not be enforced, as a 
 lien, against the estate of the beneficiary, under a resulting trust, 
 who was in possession of the land and caused the buildings to be 
 erected thereon. 
 
 On the other hand, in National Bank, etc. v. Sprague, 5 C. E. Gr. 
 13, it was held that a lien does attach to the equitable estate of a 
 vendee in possession who subsequently obtains a conveyance; and
 
 Revision'of 1808, § 2. 37 
 
 in Currier v. Cummings, 13 Stew. 145 (per Bird V. C), it was 
 held that it attached to the estate of a tenant in possession with 
 an option to purchase at the expiration of his tenancy, althoug-h 
 in the meantime the tenancy has expired, the tenant has yielded 
 possession, and has failed to exercise, and does not claim the right 
 to exercise his option. Finally, in Scott v. Reeve, 10 N. J. L. J. 
 12 (per Parker, J., at Circuit) it was held, in a suit to enforce 
 a lien claim, that the plaintiff should have judgment against the 
 estate of a vendee in possession, who died without obtaining a 
 conveyance and whose heirs subsequently released their right to a 
 conveyance. 
 
 Effect of filing' a -written building contract ; excludes lien 
 of any but contractor. 
 
 2. When (ever) any building- shall be erected in whole 
 or in part bv contract in -writing,^ such bnildino: and the 
 land -vvhereon it stands shall be liable to the contractor 
 alone ^ for work done or materials furnished in pursuance of 
 such contract ; provided, said contract, or a duplicate thereof, 
 (together with ths specificaiions accompmiymcf the same, or 
 a copy or copies thereof ,Y ^ ^\e(\ in the office of the clerk 
 of the county in which such building is situate before such 
 work done or materials furnished.^ 
 
 1898, p. 538, § 2; 185S, p. m, § 2; 186S, p. 215, § ^; 
 Rev. 187 Jf, § 2; 1895, p. SIS, § i (— ). 
 
 The words in parenthesis ( — ) were added to this section by the 
 act of 1895, otherwise the section is practically identical with the 
 act of 1853. § 2, and the Revision of 1874, § 2; but the act of 
 1853 had at the end of the section the following words which were 
 rei)ealed by the act of 1863, p. 275, § 4, and so were omitted iu 
 the Revision of 1874 — "and no building or land shall be liable for 
 work done by any person, not employed by the owner or his agent, 
 on his account." The effect of these words, as held by the Court 
 of Errors in, Associates, etc., v. Davison, 5 Dutch. 424, had been, 
 to exempt a building from the lien of any employee of the con- 
 tractor, when there was a contract in writing, even although it 
 had not been filed. In Van Pelt v. Hartough, 2 Vroom 331, it 
 was said (i^er Beasley, C. J.) that the provisions of the first sec- 
 tion were so comprehensive, that, if left unconfined by subsequent 
 restrictions, a lien would be given to all persons who, under any 
 circumstances whatever, furnished either labor or materials for 
 the building. The omission of these words, by the act of 1868 has, 
 therefore, left the comprehensiveness of the first section unre- 
 stricted, except in the case of a contract which is in writing and 
 has been filed.
 
 38 Mechanics Lien Law, 
 
 See at the end of Note 3, below, for the text of this section 
 as amended by the act of 1910, page 472. 
 
 See under BUILDING CONTKACT (Forms No. 1, ete.) for 
 the cases upon the various provisions usually contained therein. 
 
 1. FEAUDULENT CONTEACT. The contract must be neither 
 fictitious nor fraudulent; it must be between parties who are 
 actually contracting with each other, Young v. Wilson, 15 Vroom 
 161, reversing s. c, 3 N. J. L. J. 209 ; and must honestly state the 
 real price, Murphy, etc., Co. v. Nicholas, 49 Atl. E. 447; otherwise, 
 filing the contract will not protect from liens of material men and 
 laborers. 
 
 OWNEE'S SIGNATUEE TO CONTEACT. The Supreme 
 Court in Willetts v. Earl, 24 Vroom 270, decided that, in order 
 that the lands of the owner might be protected from liens by the 
 filing of the contract, such contract must appear, on its face, to 
 be the contract of such owner. The owner in that case was a 
 married woman and the contract, which was filed, purported to be 
 the contract of her husband only, as owner, and was signed by 
 him only. The reasoning was that a contract which did not 
 itself disclose that it was the contract of the actual prin- 
 cipal would not show one of the essentials of such contract; and 
 so would not be, as to such essential, a contract in writing: that 
 the owner's name is probably the most significant and notorious 
 fact by which a filed contract can be connected with the building 
 to be erected under it : that the owner is the one interested, and 
 therefore under a duty, to file the contract, in order to exempt his 
 property from liens : that if the filing of a contract by an agent 
 in his own name is sufficient, parties interested, who had learned 
 the name of the real owner, would be chargeable with notice of 
 whatever agencies he might have chosen to create which would 
 be an unreasonable burden to impose upon them : and that under 
 the construction adopted, the filed contract will indicate, to pe;r- 
 sons whose claims to lien are barred, the party upon whom, m 
 a proper case, notice under the third section may be sei-ved. 
 
 In Neill V. Watson, 15 N. J. L. J. 138, in an identical case, 
 Depue, J., at circuit, had previously held that the filing of such 
 a contract did protect from lien the land of the married woman 
 owner; because, by virtue of the act of 1876 (now § 13), her 
 lands are made liable for any building erected upon them with 
 her knowledge, unless she files the written dissent, as there speci- 
 fied, and that as the contract, when filed, left her lands still liable 
 to the contractor, they should be exonerated from other liens 
 thereby, and without obliging her also to file such written dissent. 
 In Earle v. Willets, 27 Vroom 334, the Court of Errors and Ap- 
 peals reversed the decision of the Supreme Court, m the case 
 first above cited, and held that the filing of the contract protected 
 the wife's lands from liens, other than that of the contractor, in 
 the absence of anything to indicate that the contrax^t was thus 
 executed with any fraudulent intent to cheat workmen or material- 
 men. In thus holding, the opinion of the Court of Errors and
 
 Revision of 1898, § 2. 39 
 
 Appeals does not discuss whether or not a married woman is en- 
 titled to the protection of filing the contract because of the pe- 
 culiar liability of her lands. It does not refer to §13, at all, but 
 puts the decision on the ground tJiat the language of § 2 does 
 Hot import that the contract there mentioned must be made in, 
 or signed with, the name of the owner. The proposition — that a 
 contract which does not disclose, either in the body of it or by 
 the manner in which it is signed, the name of the person who is 
 actually the one contracting, as owner, is not, in an essential par- 
 ticular, a "contract in writing" — is not discussed. The reasoning 
 of the opinion is applicable to the case of any owner. 
 
 In the case of Gardner & Meeks Co. v. Herold, 72 Atl. 24, con- 
 curring opinion of Parker, J., 74 Atl. 568, the same situation was 
 presented to the Court of Errors and Appeals, but this time in an 
 action at law upon a stop notice given by a materialman to the 
 married woman owner. It was held, that such notice was properly 
 given. In his opinion concurring in that result. Justice Parker 
 rests his approval on the ground that the contract was found to 
 be the contract of the wife, signed by her husband as her agent, 
 with no fraud intended. In the opinion of Justice Swayze, it 
 is noted that the decision does not make it possible for a material- 
 man to serve a stop notice upon an owner in any ease where 
 the contractor could not have a right of lien, as against him ; and 
 it is said that such right of lien can exist only where the build- 
 ing is authorized by the owner, or built with his knowledge, ex- 
 cept in the case of married women who are prestmied to consent, 
 unless they file an objection; and it is further said, that the 
 provision that her dissent shall state that the building is being 
 erected against her wishes and consent involves a pretty clear im- 
 plication tTiat the statutory consent is not to be presumed except 
 in a case where she has knowledge and fails to file her dissent. 
 It would seem that the proviso at the end of this same section (13) 
 involves, much more strongly, the same implication, for it says 
 that her lands shall not be liable to a lien for any building or re- 
 pairs built or done without her knowledge. 
 
 It is plainly just that the filing of such a contract should be 
 held to protect a married woman's lands from liens, when she 
 has had knowledge of the building, without filing her dissent; 
 because the statute (§ 13), by conclusively presuming her con- 
 sent from her knowledge, makes such a contract her contract, and 
 60 imputes, to every one concerned, the knowledge that it is hers. 
 In such case, it is not an essential part of the written contract 
 that it should disclose the fact that she is the principal party, as 
 owner, thei-ein : the statute operates to bind her lands, and affects 
 all persons concerned, as claiming liens, and, therefore, as assert- 
 ing the right to give stop notices, just as though such contract 
 were, on its face, expressed to be hers. She may, therefore, have 
 the benefit of the filing of such a contract, and may be accountable 
 to claimants, upon stop notice, because, without her name appear- 
 ing therein as the principal, it is her contract which in contempla- 
 tion of the statute is filed. Upon this ground the decisions thus
 
 40 Mechanics Lien Law. 
 
 far made, may be rested with assurance, as they are all dsKjisions 
 of cases of married women owners. 
 
 But when we come to the case of an owner, not a married wo- 
 man, it is by no means clear that the same result will, or should 
 be, reached. The seventh section provides that the lands of such 
 other owner shall not be liable to lien for the erection of a building 
 under a contract to which he is not, in fact, a party; unless he 
 consents in writing to the erection thereof. So long, therefore, 
 as he is not the real contracting principal, and d'oes not consent 
 to the erection of such building in writing, he is in need of no 
 protection, and neither he, nor his lands, can be in anywise liable 
 therefor. As he can incur no liability, in such case, he is ob- 
 viously not the person for whose benefit the statutory provision 
 is intended. But if he is, in fact, the real contracting party, and 
 yet the contract, as filed, does not disclose the fact; why should he 
 be able to claim the benefits of the second section, and thus cut 
 off the liens of materialmen and mechanics, or limit these claim- 
 ants to such as can give valid notice, under the third section, if 
 they are fortunate enough to discover the undisclosed agency be- 
 fore he has settled with the builder? 
 
 When Chief Justice Green, in Ayres v. Revere. 1 Dutch. 474, 
 said that "one design of requiring the contract to be filed must 
 have been to apprize all mechanics and materialmen to what ex- 
 tent the building was exempt from liens, and how far they must 
 look to the responsibility of the builder alone for their remunera- 
 tion," he was very far from asserting that that was the only de- 
 sign of that section. Another equally obvious design of that re- 
 quirement, when the third section is read with it, is to apprize 
 mechanics and material men, with certainty, of the person who 
 has contracted with the builder to whom they are supplying labor 
 or material. If this be not so, why should the statute require the 
 contract to be filed? Why should not a mere notice suffice which 
 sliould put on the record the information that any one supplying 
 materials or labor to the builder for a certain building about to 
 be erected by him must look to such builder only for their com- 
 pensation ? 
 
 The reason why the owner should disclose his participation upon 
 the record is plain enough. It is within his power to make it 
 thus incontestably apparent that he is the real principal, whenever 
 that is, in fact, the case; while, on the other hand, without such 
 action on his part, it will always be burdensome, and often im- 
 possible, for claimants to satisfy themselves, or any one else, in 
 advance of a verdict, whether he is, or is not, such principal. 
 
 Upon the decisions thus far there is. then, a dilemma — Suppose 
 a mechanic says I have furnished B. with materials for a house 
 he is erecting for C. under a written contract, filed. I find that 
 A. actually owns the land, and although I suspect that he is 
 really the undisclosed principal for whom C. acted in making the 
 contract, I can elicit no positive information from either A. or 
 C. Both simply look pleasant and tell me that they do not feel it 
 incumbent upon them to venture any statement in the premises. 
 What shall I do?
 
 Revision of 1898, § 2. 41 
 
 Manifestly the only possible answer is, you had better file a lien 
 claim against A. and bring suit upon it and, at the same time, 
 serve a stop notice on A., and bring another suit ui)on that. You 
 will, of course, lose one of your suits in any event and have to pay 
 costs; but no one can tell which of the two you will lose. You 
 may also lose both of them and have to pay costs. That depends 
 upon whether A. is really the undisclosed principal or not. If 
 he is not, you lose both suits. If he is, then you lose the lien 
 claim suit and win the stop notice suit, in case the Court of Er- 
 rors and Appeals says that he is entitled to the benefit of the 
 filed contract; or you win the lien claim suit and lose the stop 
 notice suit, in case that court says that he is not entitled to the 
 benefit of the filing. There is an additional matter which makes 
 the whole situation most interesting, although your preoccupations 
 as a layman may prevent you from appreciating its charm, and 
 that is that the court might possibly say that the attitude of A. 
 and C. upon your request for information, was more polite than 
 virtuous, that their refusal to answer categorically was tantamount 
 to a fraud upon you, and their "placid smile but a wile of guile." 
 In that event, you will lose the stop notice suit and win the lien 
 claim suit. In such a dilemma, our mechanic has no one to blame 
 if A. is not really the principal party to the building contract: 
 but the case is quite otherwise, if A. is such principal; and, in 
 such case, it seems just that he should either disclose that fact, 
 in advance on the record, by having the filed contract set it 
 forth, or else be liable to have his lands subjected to the me- 
 chajiic's lien. The ground for such a rule, suggested by Justice 
 Dixon, in Willetts v. Earl, is, that the second section has no ap- 
 plication where the building contract is not in writing; that the 
 contract cannot be said to be in writing when it omits to set 
 forth an essential part of it; that it does omit an essential part 
 when it does not disclose the real principal party thereto, and he 
 is not disclosed by some other sufficient means (as is the case with 
 niaiTied women by the statute) ; and that, therefore, the contract 
 in contemplation of the statute cannot be said to have been filed. 
 
 2. WHEN LIABILITY ACCEUES. The liability to the con- 
 tractor does not accrue until the contract has been performed ac- 
 cording to its terms. Bozarth v. Dudley, 15 Vroom 304; Byrne 
 V. Sisters, etc., 16 Vroom 213; Chism v. Schipper, 22 Vroom 1; 
 Kirtland v. Moore, 13 Stew. 106; Bradley, etc.. Co. v. Berns, 6 
 Dick. 437; Bemz v. Marcus Sayre Co., 7 Dick. 275; Smith et al. v. 
 Dodge & BU.<>s Co.. 44 Atl. E. 639; Booth v. Kiefer, 47 Atl. E. 
 12; Blauvelt v. Fuller. 48 Atl. E. 538. 
 
 The contract is, however, so performed, so far as relates to the 
 completion of the building, when it is substantially performed. 
 The rule on this subject, as established in this State, may be thus 
 stated • 
 
 (a). The rule that when a contract remains unperformed, though 
 in slight particulars, no recovery can be had either upon it or 
 upon an implied contract, quantum meruit, is modified in the case 
 of a building contract so as to permit a recovery when there
 
 42 Mechaxics Liea^ Law. 
 
 has been a mere technical, inadvertent, or vuiimportant devia- 
 tion from its terms, but a substantial compliance with them. In 
 such case a proper allowance or deduction from the contract price 
 must be made for the deficiencies. 
 
 (b). Where, however, there is a substantial non performance, 
 there can be no recovery on the contract; and there can be no 
 recovery, in such a case, under the common counts, for the value 
 of so much as may have been accomplished, unless the owner has 
 actually accepted such partial performance; and such acceptance 
 is not to be presumed from the owner's i)ossession and use, al- 
 though it may be inferred therefrom and from other circum- 
 stances. 
 
 (c). Where a plaintiff can show substantial performance, in 
 his suit upon the express contract, he need not show the owner's 
 acceptance; but the case is otherwise if his action be upon the 
 common counts, as upon an implied contract. 
 
 These rules are established by the following decisions: Bozarth 
 V. Dudley, supra; Feeney v. Bardsley, 37 Vroom 239; Dyer v. 
 Lintz, 69 Atl. 908; Loh v. Broadway By. Co., 71 Atl. 112; Isetts 
 V. Bliwise, 43 Vroom 102. 
 
 DISPUTED PERFORMANCE. In case there is a dispute as 
 to whether the contract has been performed, axid the owner and 
 builder submit the dispute to arbitration, the owner's liability 
 cannot mature until the award is madfe. Booth v. Kiefer, 15 
 Dick. 57. 
 
 DEVIATIONS AND EXTRA WORK. Filing the contract 
 does not protect the owner from liens, for work or materials, not 
 done or furnished pursuant to the contract; as where the owner 
 himself employs mechanics or furnishes materials. Mechanws, 
 etc., Co. V. Alhertson, 8 C. E. Gr. 318; South End Imp. Co. v. 
 Harden, 52 Atl. 1127; but it is otherwise if the deviations and 
 extra work are such as are stipulated for by the contract. Wil- 
 letts V. Earl, 24 Vroom 270; Dunn v. Stokern, 16 Stew. 401. 
 
 ABANDONMENT OF CONTRACT, by owner and contractor, 
 after a claimant has furnished materials or labor pursuant to it, 
 does not give the latter a lien, if the contract was filed, Willetts 
 V. Earl, 24 Vroom 270; and if the contract is abandoned by the 
 contractor under such circumstances as give him no right to re- 
 cover any part of the contract price, such claimant can have 
 no remedy, unless perhaps upon offering himself to complete the 
 contract. Bernz v. Marcus Sayre Co., 7 Dick. 275 (286), holding 
 apparently otherwise than V. C. Bird, in Bradley & Currier Co. v. 
 Berns, 6 Dick. 437, but: 
 
 SUBSTITUTED PAROL CONTRACT. If, after a written 
 contract is filed, the owner and the builder agree to abrogate it, 
 and the work is completed under a substituted parol contract, a sub- 
 contractor, or other person furnishing labor or materials therefor, 
 may have a lien on the land and building. Buckley v. Hann, 
 39 Vroom 624. The jury foimd, in this case, that the contract 
 was not, in fact, abrogated. 
 
 See also notes to form of building contract, post.
 
 Revision of 1898, § 2. 43 
 
 ASSIGNMENTS. The contractor may, of course, assign the 
 moneys due, or to grow clue, to him under the contract. An as- 
 signment of less than the whole debt becomes complete, at law, 
 only by the acceptance of the debtor; but an unaccepted assign- 
 ment of part of a debt is as valid in equity as though accepted. 
 Supt. V. Heath, 2 McCart. 22; Bradley, etc., Co. v. Berns, 6 Dick. 
 437; Kirtland v. Moore, 13 Stew. 106. 
 
 VALIDITY OF ASSIGNMENT. A provision in a paving 
 contract, that if the contractor failed to pay his employes or ma- 
 terial men, the city might forfeit the contract and apply the 
 moneys then earned by the contractor in payment of such labor 
 and materials, does not deprive the contractor of his right to make 
 an assignment, and such assignment, if made before the contract 
 is declared forfeited, is good, to the extent of the moneys earned 
 by the contractor, both as against the city and the creditors of the 
 contractor. Shannon v. Hohohen, 10 Stew. 123. So a provision 
 in a building contract which stipulates that the builder shall not 
 make an assignment without the owner's consent, and stipulates 
 that the latter may, on breach of that stipulation, terminate the 
 contract, is available only to the owner; that is, an assignment 
 made in violation of the contract is good as to others, and, as 
 to the owner himself, is voidable only, and the right to treat it 
 as void is waived by allowing the contractor to go on with his 
 work. Burnett v. Jersey City, 4 Stew. 341. The same is true if 
 the owners fails to annul the contract within a reasonable time 
 after notice of such assignment, Turner v. Wells, 45 Atl. R. 641; 
 and in view of § 340, Gen. Stats., p. 2591, a stipulation for the 
 absolute non assignability of money due or to grow due, under 
 a written contract, is probably void. Turner v. Wells, supra. 
 Where a contractor agrees to take two houses in part payment on 
 final settlement, he may make a valid agreement to convey such 
 houses before he has finished his work. McPherson v. Walton, 15 
 Stew. 282. (This case is a very perplexing one, as it is reported.) 
 
 FORM OF ASSIGNMENT. An order, writing, or act which 
 makes an appropriation of the fund is a good equitable assignment. 
 Shannon v. Hohohen, 10 Stew, 123; Lanigan v. Bradley, etc., Co., 
 5 Dick. 201; and it is sufiicient if the assignor presently strips 
 himself of his interest in the fund, or some part of it, although 
 the right to immediate payment is not thereby conferred upon 
 the assignee. Weaver v. Atlantic, etc., Co., 40 Atl. R. 858. 
 
 EFFECT OF ASSIGNMENT is, in equity, to put the assignee 
 in the place, and on the footing, of the assignor; that is, to sub- 
 rogate him to the rights of the latter, Bernz v. Marcns Sayre Co., 
 7 Dick. 275; Boaid of Education v. Duparquet, 5 Dick. 234; Lani- 
 gan V. Bradley, etc.. Co., 5 Dick 201. In Board of Education v. 
 Duparquet, it is said that this effect follows immediately upon 
 the making of the assignment^ and before notice to the debtor, 
 the office of presentation, or notice, being merely to prevent the 
 debtor from dealing with the assignor in good faith as still the 
 beneficiary. The able opinion of the Vice Chancellor (Pitney) re- 
 views the cases of Supt. v. Heath, 2 McCart. 22; Shannon v. Hoho-
 
 ^^ Mechaxics Liex Law. 
 
 ken, 10 Stew. 123; and Bank v. Bayonne, 3 Dick. 246, in which it 
 had been intimated that an order, given on any owner by a builder, 
 would take effect from the time of its presentation to the owner' 
 and not from_ the time of its making, and concludes that no such 
 rule was decided by those cases (which seems clearly true), and 
 that it was not really intended to assert any such dictum (which 
 seems probable). In Burnet v. Jersey City, 4 Stew. 341, it had 
 been contended that an assignment of a chose in action could 
 not be complete (in the sense in which equitable rules would 
 require) until notice had been given to the debtor, but the court 
 did not find it necessary to decide whether that contention was 
 sound or not. There seems to have been no case, other than 
 Board of Education v. Duparquet, in which the question has been 
 carefully considered or necessarily ruled. In Donnelly v. Johnes, 
 44 Atl. R. 180, Vice Chancellor Grey, indeed, says that such or- 
 ders are chargeable uiwn the fund, "in the order of their priority of 
 service;" and in deciding both that case and Flaherty v. Atlantic 
 Lumber Co., 44 Atl. R. 186, he very obviously marshals the orders 
 in accordance with the date of their presentation to the owner. 
 So too, the Court of Errors, in Smith v. Dodge & Bliss Co., 44 
 Atl. R. 639, makes the same intimation and pursues the same 
 course in marshalling the orders; but it does not appear that the 
 priorities as thus determined differed, in any of these cases, from 
 what the date of issuance of the orders would have occasioned; 
 nor is it probable, that the question in hand was then present to 
 the mind of the Vice Chancellor, or of the Court of Errors. 
 
 In United States Co. v. Newark, 74 Atl. 192, Vice Ch. Howell 
 followed and approved the doctrine of the Duparquet case, hold- 
 ing' that it was the same doctrine that had been approved in the 
 following cases: 
 
 Kennedy v. Parke, 2 C. E. Gr. 415; King v. Berry, 2 H. W. 
 Green 44; Bank of Harlem v. Bayonne, 3 Dick. 246; Miller v. 
 Stockton, 35 Vroom 614; Cogan v. Conover Co., 3 Rob. 809. 
 
 The rule, as determined in Board of Education v. Duparquet, 
 on the whole, seems, to be the correct rule; but the matter may 
 be considered, perhaps, as still unsettled. 
 
 An assignment taken by a creditor, not in payment, but only 
 to credit the proceeds when received, is a mere power to collect 
 and apply, and if such assignment is subsequently returned by 
 the assignee to the assignor, it then becomes cancelled. South 
 End Imp. Co. v. Harden. 52 Atl./1127. 
 
 ORDERS TO GENERAL CREDITORS of the contractor 
 stand the same as orders given to materiahnen or laborers. Both, 
 whether accepted or not are equitable liens on the fund in the 
 owner's hands. McPherson v. Walton, 15 Stew. 282; Supt. v. 
 Heath, 2 McCart. 22. 
 
 AN ASSIGNMENT OF THE ENTIRE CONTRACT, as- 
 sented to by the owner, and the subsequent completion of the work 
 by such assignee, does not give to such assignee any rights or 
 equities which the builder himself did not have at the time of 
 such assignment. Fell v. McManus, 1 Atl. 747. Compare, Si.
 
 Revtsiox of 1898, § 2. 45 
 
 Peter's Church v. Van Note, 21 Dick. 78; Evans v. Lower, 1 Kob 
 232. 
 
 PRIOKITY. See post, under § 6, for the cases on the respec- 
 tive priority of orders and stop notices. 
 
 3. FILING PLANS AND SPECIFICATIONS. The cases on 
 this subject are: Ayres v. Revere, 1 Dutch. 474; Bahhitt v. Con- 
 don, 3 Dutch. 1.54; Budd v. Lucky, 4 Dutch. 484; Hill v. Carlisle, 
 14 N. J. L. J. 114; Neill v. Watson, 15 N. J. L. J. 138; Pimlott 
 v. Hall, 26 Vroom 192; Freedman v. Sandknop, 8 Dick. 243; La- 
 Foucherie v. Knutzen, 29 Vroom 234, decided before the amend- 
 ment of 1895, and the following since decided: Weaver v. At- 
 lantic, etc., Co., 12 Dick 547; Murphy, etc., Co. v. Nicholas, 37 
 Vroom 414; English v. Warren, 20 Dick. 30; Campbell Morrell 
 Go. V. Lehocky, 73 Atl. 515. 
 
 In Ayres v. Revere. Chief Justice Green, premising that "one 
 design of requiring the contract to be filed must have been to 
 apprise all mechanics and materialmen to what extent the build- 
 ing was exempt from liens and how far they must look to the 
 responsibility of the builder alone for remuneration," held that 
 the contract was not duly filed, because the contract stated that 
 the builder was to do only a part of the work and furnish only 
 a part of the materials mentioned in the si)ecifications, and the 
 specifications themselves, which were essential to determine what 
 such part was, had not been filed. It was also noted that the con- 
 tract in that case expressly made the specifications a part of it. 
 In Bahhitt v. Condon, the contract being to do all the work 
 and furnish all the material, it was said that in such case 
 the specifications formed no essential part of the contract 
 with respect to its filing. The decision in this case was 
 rested, also, on other grounds, which made it unnecessary to 
 decide upon this question. In Budd v. Lucky, it was expressly 
 decided that the specifications did not need to be filed when the 
 contract was to do all the work and furnish all the material; and 
 it was, in effect, considered that, to give notice of whether the 
 material or work in contemplation was within or without the 
 contract, was the only purpose of the statutory requirement that it 
 be filed. In Hill v. Carlisle, and Pimlott v. Hall, the contract was 
 partial, and it was held fatal that the specifications were not filed, 
 following Ayres v. Revere. In Neill v. Watson, the contract being 
 total, the failure to file the specifications was held of no conse- 
 quence, and the same was held in Freedman v. Sandknop and 
 La Foucherie v. Knutzen, following Budd v. Lucky. Then came 
 the amendment of 1895, following which, in Weaver v. Atlantic, 
 etc., Co., it was decided that the failure to file the specifications 
 was fatal, the contract there in question being similar to a partial 
 contract. In the next case, Murphy, etc., Co. v. Nicholas, it was 
 intimated that the rule adopted in Budd v. Lticky had been a piece 
 of judicial legislation, rather than of rational interpretation ; and 
 doubts were expressed whether the specifications could ever have 
 been properly dispensed with when the contract expressly made 
 them a part of it. It was also intimated that the amendment of
 
 46 Mechanics Lien Law. 
 
 1895 evinced a legislative intent that the document filed should 
 show a complete contract. This latter intimation might have 
 afforded some support for the contention that the whole legislative 
 design of section 2, as amended in 1895, w-as broader than the pur- 
 pose mentioned in Ayres v. Revere, as originally one of its designs, 
 and that the purpose of the statute also is that the contract should 
 be so completely filed as to apprise mechanics and materialmen 
 of all the details necessary to enable them to ascertain with cer- 
 tainty the scope of the work which the builder has undertaken, and 
 so that they may have, of record, the means of estimating whether 
 the work is likely to be carried out and completed for the contract 
 price or not. It might have been found that such was the reason 
 which led the legislature to require the "specifications" to be filed 
 in every instance, whether they were, or were not, essential "to 
 apprise mechanics or materialmen to what extent the building was 
 exempt from liens, and how far they must look to the responsi- 
 bility of the builder alone for remuneration." That it is neces- 
 sary to file the "specifications" in every case, since the amendment 
 of 1895, was decided in English v. Warren, and to that extent, the 
 old rxile of constiniction was abrogated by the amendment. Why 
 that should have been done is clear enough upon the hypothesis 
 above suggested; but, on the contrary hypothesis, that the legisla- 
 ture did not intend to enlarge the design of the requirement as to 
 filing the contract, it imposed an additional burden on the land 
 owner, without intending any resulting advantage to any one else. 
 In view of these considerations, and the course of decision on the 
 subject, it might have been thought that the present requirement, 
 that the specifications must be filed in every case, should be con- 
 strued so as to make the term, "specifications," include all the par- 
 ticulars as to the dimensions of the worJc, as well as the particu- 
 lars as to materials, qualities, workmanship and the like, which 
 have, in fact, been agreed upon and specified between the parties. 
 Such a construction would have made the drawings, or plans, 
 as essential a part of the "specifications" as is the written or 
 printed enmneration of particulars, and would have done no vio- 
 lence to the term, specifications. For, manifestly, a specification 
 is to be defined as the designation of a partictdar, and a drawing 
 or plan which furnishes the dimensions of the work, and of its 
 various parts, is surely such a designation, and is usually, if not 
 always, the only thing which does furnish a designation of those 
 particulars. The term, "specifications," is an apt term to include 
 all usual methods of designating or describing particulars, and 
 includes drawings or plans just as much as it does writings. It is 
 also to be noted that in very many cases the contract, or the writ- 
 ten specifications, or both, recite, in express words, that the plans 
 or drawings are part of the specifications, and very often that they 
 are a controlling part. Without any such recital they are, in fact, 
 an indispensable part thereof. 
 
 But Dis aliter visum est, the Court of Errors and Appeals, in 
 Camphell & Morrell Co. v. Lehocky. has given a much more 
 restricted meaning to the statutory term, specifications, holding
 
 Revision of 1898, § 2. 47 
 
 that it does not include the drawings or plans, and that the amend- 
 ment of 1895, therefore, under the maxim, Expressio unius est 
 vxc'iiisio aUerius, indicates conclusively that while the written 
 specifications must be filed in every case, the plans or drawings 
 need not be. The report of this case does not show whether the 
 plans or drawings were there expressly made a part of the specifi- 
 cations, although it is probable that they were. Perhaps it is 
 henceforth immaterial on this question what the fact, in that 
 respect, may be. There may still, however, be a doubt as to this 
 when the contract is partial and the specifications, without the 
 plans, do not suflSce to show what is, and what is not, within such 
 contract, see Weaver v. Atlantic, etc., Co., 12 Dick. 547, at p. 551. 
 
 Careful practitioners will, we think, continue to advise owners 
 that the drawings or plans be filed with the contract and the writ- 
 ten specifications. 
 
 The foregoing note was prepared before the enactment of the 
 act of 1910, p. 472, which reads as follows: 
 
 Whenever any building shall be erected in whole or in 
 part by contract in writing, such building and the land 
 whereon it stands shall be liable to the contractor alone for 
 work done or materials furnished in pursuance of such con- 
 tract; provided, said contract, or a duplicate thereof, to- 
 gether with the specifications accompanying the same, or a 
 copy or copies thereof, be filed in the office of the clerk of 
 the county in which such building is situate before such 
 work done or materials furnished; provided further, that it 
 shall not be necessary to file the plans for such building in 
 said clerk's office, whether such plans are referred to in said 
 contract or not. 
 
 This amendment seems to set at rest any question as to filing 
 the plans, but it has been thought best to let the above note stand, 
 inasmuch as it may be useful as an historical resume of the course 
 of legislation and the decisions upon the subject. 
 
 CONVEYANCE BY OWNER TO CONTRACTOR. If the 
 contract is filed, a conveyance of the land and building, after its 
 completion, by the owner to the contractor, if hona fide, will not 
 give a laborer or material man a lien, Scudder v. Harden, ^^ Stew. 
 503 ; but it is otherwise if the builder was, during all the time, the 
 real owner; see Young v. Wilson, 15 Vroom 161. 
 
 4. Filing the contract operates to protect from liens for mate- 
 rials or labor furnished or performed after the date of filing ; that 
 is, the contract need not be filed before any work is begim, but, 
 if it is not filed until after that time, will let in a lien for any- 
 thing done before it is filed and be a protection as to the remain- 
 der. Mechanics, etc., Assn. v. Albertson, 8 C. E. Gr. 318; La 
 Foucherie v. Knufzen, 29 Vroom 234. For a time (1892-1895), 
 owing to the act of 1892, p. 358, it was necessary to file the con- 
 tract before any work was begun or materials were furnished. La
 
 48 Mechanics Lien Law. 
 
 Foucherie v. Knutzen, 29 Vroom 234; but the statute -which pro- 
 duced this result was repealed in 1895. 
 
 The work done or materials furnished, before which the contract 
 is to be filed, are such as are to be done or furnished under the 
 contract. So, where the owner was, himself, to build the founda- 
 tion, and contracted only for the superstructure, a claimant, who 
 furnished work or materials for the superstructure, after the con- 
 tract was filed, cannot have a lien, although the contract was exe- 
 cuted before the foundation was completed. Budd v. Lucky, 4 
 Dutch. 484. 
 
 Recourse of employe or materialman against the contract 
 price, on the contractor's failure to pay, after demand, re- 
 fusal and notice. 
 
 3. Whenever any master workman or contractor sliall, 
 \ upon demand, refuse to pay any person who may have fur- 
 H) nished him materials used in the erection of any such house 
 
 or other building, or any siib-contractor, journeyman or la- 
 borer employed by him in erecting or constructing any build- 
 ing, the money or wages due to him,^ it shall be the duty of 
 such journeyman, laborer, materialman or suh-conttnctor to 
 give notice in writing to the owner or owners of such build- 
 ing of such refusal, and of the amount due to him or them 
 and so demanded,^ and the owner or owners of such building 
 shall thereuix)n be authorized to retain the amount so due 
 and claimed by any such journeyman, laborer, materialman 
 or suh-contra^tor out of the amount owing by him or them on 
 the contract or that may thereafter become due ^ from him 
 or them on such contract for labor or materials used in the 
 erection of such building,^ giving the master workman or 
 contractor written notice of such notice and demand ; and 
 if the same be not paid or settled by said master workman 
 or contractor, such owner or owners, on being satisfied of 
 the correctness of such demand, shall pay the same, and the 
 receipt of such journeyman, laborer, materialman or sub- 
 contractoT for the same shall entitle such owner or owners 
 to an allowance therefor in the settlement of accounts between 
 him and such master workman or contractor, or his represen- 
 tatives or assigns, as so much paid on account.*^ 
 
 1905, p. Sll, § 1; 1898, p. 5S8, § 3; 1853, p. 437, § S; 
 1863, p. 215, § 2; Rev. 1874, § 3; 1895, p. 313. § 2. 
 
 The text above given is the section as amended by the Act of 
 1905, which changed the section by adding the italicized words and
 
 Revision of 1898, § 3. 49 
 
 omitting the definite article in one place. The insertion of the 
 word, him, is significant, as is below, in note 1, noted. It is de- 
 sirable, in many cases, to consider the various changes that have 
 been made in this section, since it first was enacted as § 3 of the 
 Act of 1835. To facilitate such an examination, we give in par- 
 allel columns the several enactments, omitting only that of the 
 Kevised Statutes of 1847, which copied the language of the Act 
 of 1835, with no significant variation; unless the change from, 
 master or workman, to master workman, miglit be thought such. 
 
 4
 
 50 
 
 Mechanics Lien Law, 
 
 1835, p. llfS, § 3. 
 Whenever any master 
 or workman shall re- 
 fuse to pay to any jour- 
 neyman or laborer, em- 
 ployed by him, in the 
 erection or constructing 
 any house or other 
 ■building, his Tvages, it 
 shall be the duty of 
 such journeyman or la- 
 borer, to give notice, in 
 writing, to the owner or 
 owners of such hou(se 
 or other building, of 
 such refusal, ond the 
 amount due him or 
 them, and so demanded, 
 and the said owner or 
 owners shall thereupon 
 be authorized to retain 
 the amount so due and 
 claimed, by any such 
 journeyman and labor- 
 er, out of the amount 
 due by him or them to 
 such master workman, 
 and give notice to such 
 master workman of 
 such notice and demand, 
 and if not liquidated 
 and paid by such mas- 
 ter workman, such 
 owner or owners, on 
 being satisfied of the 
 correctness of such de- 
 mand, shall pay the 
 same; and the receipt 
 of such joumeyraan 
 and laborer for the 
 same, shall be a suffi- 
 cient offset in the set- 
 tlement of the accounts 
 between such owner or 
 owners of any honse or 
 other building, and such 
 master workman. 
 
 1S53, p. m, § 3. 
 Whenever any master 
 workman or contractor 
 shall, upon demand, re- 
 fuse to pay ani/ person 
 icho may have furnished 
 — — materials used in 
 the erection of any such 
 house or other building, 
 or any journeyman or 
 labored employed by 
 bim in the erecting or 
 eonstructmg any build- 
 ing, the money or wages 
 due to him, it shall be 
 the duty of such jour- 
 neyman or laborer to 
 give notice in writing to 
 the owner or owners of 
 such building of such 
 refusal, and of the 
 amount due to him or 
 them and so demanded, 
 and the owner or own- 
 ers of such building. 
 shall thereupon be au- 
 thorized to retain the 
 amount so due and 
 claimed by any such 
 journeyman or laborer 
 out of the amount ojc- 
 ing by him or them to 
 such masterworkman or 
 contractor, giving him 
 written notice of such 
 notice and demand; and 
 if the same be not paid 
 or settled by said mas- 
 terworkman or contrac- 
 tor such owner or own- 
 ers, on being satisfied 
 of the correctness of 
 such demand, shall pay 
 the same, and the re- 
 ceipt of such journey- 
 man or laborer for the 
 same, shall entitle such 
 owner or owners to an al- 
 lowance therefor, in the 
 settlement of accounts 
 between him and such 
 masterworkman or con- 
 tractor as so much paid 
 on account. 
 
 IS63, p. 275, § 2. 
 Rev., p. 668, § 3. 
 Whenever any master- 
 workman or contractor 
 shall, upon demand, re- 
 fuse to pay any person 
 who may hare furnish- 
 ed — — — materials 
 used in the erection of 
 any such house or other 
 buildmg, or any jour- 
 neyman or laborer em- 
 ployed by him in the 
 erecting or constructing 
 any building, the money 
 or wages due to him, it 
 shall be the duty of 
 such journeyman or la- 
 borer, or materialman, 
 fo give notice in writing 
 to the owner or owners 
 of such building of such 
 refusal, and of the 
 amount due to him or 
 them and so demanded, 
 and the owner or own- 
 ers of such building 
 shall thereupon be au- 
 thorized to retam the 
 amount so due, and 
 claimed by any .such 
 journeyman, laborer, or 
 materialman, out of the 
 amount owing by him 
 or them to such master- 
 workman or contractor, 
 giving him WTitten no- 
 tice of such notice and 
 demand; and if the 
 same be not paid or set- 
 tled by said masterwork- 
 man or contractor, such 
 owner or owners, on 
 being satisfied of the 
 correctness of such de- 
 'mand. shall pay the 
 same, flnd the receipt 
 of such journeyman, la- 
 borer, or materialman for 
 the same, shall entitle 
 such owner or owners 
 to an allowance tbere- 
 for, in the settlement of 
 accounts between him 
 and such masterwork- 
 man or contractor, as 
 ISO much paid on ac- 
 count.
 
 R EVisioN OF 1808, § 3. 
 
 51 
 
 1895, p. 313, § 2. 
 Wlienevei' any jnaster- 
 •worfcmau or contractor 
 shall; uiwn demand, re- 
 fuse to pay any person 
 who may have furnish- 
 ed — — — materials 
 used in the erection of 
 any euch house or other 
 building, ior any jour- 
 neyman or laborer em- 
 ployed by him in the 
 erecting or constructing 
 eny building, the money 
 or wages due to him, it 
 shall be the duty of 
 such journeyman or la- 
 borer or materialman to 
 give notice in writing to 
 the owner or owners of 
 6uch building of such re- 
 fusal, and of the amount 
 dne to him or them and 
 so demanded, and the 
 OAvner or owners of 
 such building shall 
 thereupon be authorized 
 to retain the amount so 
 due and claimed by any 
 such journeyman, labor- 
 er or materialman out of 
 the amount owing by 
 him or them to such 
 masterworkman or con- 
 tractor, or that may 
 thereafter become due 
 from him or them to nuch 
 masterworkman or con 
 tractor for labor or ma 
 terials used in the erec- 
 tion of such building, s"iv 
 ing him written notice 
 of such notice aud de- 
 mand; flud if the same 
 be not paid or tsettled 
 by said masterworkman 
 or contractor, such own- 
 er or owners on being 
 satisfied of the correct- 
 ness of said detnand 
 shall pay the same, aud 
 the receipt of such jour- 
 neyman, laborer or ma- 
 terialman for the same 
 •shall entitle such owner 
 or owners to au allow- 
 ance therefor in the set- 
 tlement of accounts be- 
 tween him and such 
 masterworkman or con- 
 tractor a« so much paid 
 on account. 
 
 I 1898, p. 538, § 3. 
 ,AVhenever any master- 
 , workman or contractor 
 ehall, upon demand, re- 
 fuse to pay any person 
 who may have furnish- 
 ed — — — materials 
 used in the erection of 
 any such house or other 
 building, or any journey- 
 man or Jaborer employ- 
 ed by him in the erect- 
 ing or constructing any 
 building, the money or 
 wages due to him, it 
 shall be the duty of 
 isuch journeyman or la- 
 borer or materialman 
 to give notice in writ- 
 ing to the owner or 
 owners of such build- 
 ing of such refusal, and 
 of the amount due to 
 him or them and so de- 
 manded, and the owner 
 or owners of such build- 
 ing shall thereupon be 
 authorized to retain the 
 amount so due and 
 claimed by any such 
 journeyman, laborer or 
 materialman out of the 
 amount owing by him 
 or them on the con- 
 tract, or that may there- 
 after become due from 
 him or them on such 
 contract for labor or 
 materials Tised in the 
 erection of such build- 
 ing, giving the master- 
 workman or contractor 
 written notice and de- 
 mand; and if the same 
 be not paid or settled 
 by said masterworkman 
 or contractor, such own- 
 er or owners, on being 
 satisfied of the cori-ect- 
 ness of said demand, 
 shall pay the same, and 
 the receipt of such 
 jonnieyman, laborer or 
 materialman for the 
 same shall entitle such 
 owner or owners to an 
 allowance therefor in 
 the settlement of ac- 
 connts between him and 
 such masterworkman or 
 contractor, or his rep- 
 resrntatives or assigns, as 
 so much paid on ac- 
 count. 
 
 1905, p. HI, § 1. 
 Whenever any master- 
 workman or contractor 
 'shall, upon demand, re- 
 fuse to pay any person 
 jWho may have furnish- 
 ed him materials used 
 in the erection of any 
 such house or otheo 
 {building, or any sub- 
 contractor, journeyman 
 [or laborer employed by 
 
 him in erecting 
 
 or constructing any 
 building, the mou<'y or 
 wages <lue to him, it 
 shall be the duty of 
 such journeyman, labor- 
 er, materialman, or sub- 
 c^jntructor to give notice 
 |m writing to the own- 
 er or owners of such 
 Ibuilding of such re- 
 Ifusal. and of the 
 amount due to him or 
 them and so demanded* 
 and the owner of own- 
 ers of such building 
 shall thereupon be au- 
 thorized to retain the 
 amount iso clue and 
 claimed by any such 
 journeyman, 
 materialman 
 
 tractor 
 amount 
 or them 
 or that 
 become 
 or them 
 
 laborer, 
 or sub-con- 
 out of the 
 owing by him 
 on tiie contract 
 may thereafter 
 due from him 
 on such con- 
 
 tract for labor or mate- 
 rials used in the erec- 
 tion of such building, 
 giving the masterwork- 
 man or contractor writ- 
 ten notice of such no- 
 tice aud demand; and 
 if the same be not paid, 
 or settled by said mas- 
 terworkman or contrac- 
 tor, such owner or own- 
 ers, im being satisfied 
 of the fMirrectness of 
 said d<'mand. shall pay 
 the same, and the re- 
 ceipt of such journey- 
 man, laborer, material- 
 man or siib-contracior 
 for the same shall enti- 
 tle such owner or own- 
 ers to an allowance 
 itlwji-efor .in the settte- 
 ment of accounts be- 
 tween him aud such 
 masterworkman or con- 
 tractor, or his represen- 
 tatives ov aissigns. as 
 so much paid on ac- 
 count.
 
 52 Mechanics Lien Law. 
 
 By the act of April 12th, 1910 (p. 500), this third section was 
 amended to read as follows, the only material change thereby 
 made being the addition of the words which we have italicised: 
 
 Whenever any masterworkman or contractor shall, upon de- 
 mand, refuse to pay any person who may have furnished him 
 materials used in the erection of anv such house or other 
 building, or any sub-contractor, journeyman or laborer em- 
 ployed by him in erecting or constructing any building, the 
 money or wages due to him, it shall be the duty of such jour- 
 neyman, laborer, materialman or sub-contractor to give notice 
 in writing to the owner or owners of such building of such 
 refusal, and of the amount due to him or them and so de- 
 manded, specifymg said amount as nearly as possible, and 
 the owmer or owners of such building shall thereupon be 
 authorized to retain the amount so due and claimed by 
 
 ( ) such journeyman, laborer, materialman, or 
 
 sub-contractor out of the amount owing by him or them on 
 the contract or that thereafter may become due from him or 
 them on such contract for labor or materials used in the erec- 
 tion of such building, giving the masterworkman or contractor 
 written notice of such notice and demand, and if the same be 
 not paid or settled by said masterworkman or contractor, such 
 owner or owners, on being satisfied of the correctness of said 
 demand, shall pay the same, and the receipt of such journey- 
 man, laborer, materialman or sub-contractor for the same 
 shall entitle such owner or owners to an allowance therefor 
 in the settlement of accounts between him and such master- 
 workman or contractor, or his representatives or assigns, as 
 so much paid on account. 
 
 PRIORITIES AS BETWEEN ORDERS AND STOP NO- 
 TICES, see post § 5. 
 
 PRIORITIES AS BETWEEN SUCCESSIVE STOP NO- 
 TICES, see post, § 5. 
 
 CONSTRUCTION OF THE SECTION. It is said by the 
 Court of Errors and Appeals in McNah, etc., Co. v. Paterson, etc., 
 Co., 2 Buch. 929; s. c. 1 Buch. 133: "There is no reason for a 
 strict construction of the provisions of this section (against the 
 claimant and in favor of the owner of the land), beyond the in- 
 convenience to which the owner is put by making inquiry into 
 the correctness of the claims served upon him." "In our opinion 
 no such strict construction should be given to the provisions of 
 the third section." This does not mean, we take it, that the section 
 can be construed liberally in favor of a claimant, or otherwise 
 than in accordance with the "plain and usual meaning of ita
 
 Eevisiox of 1898, § 3, Xote 1. 
 
 oo 
 
 ■words read in the light of its obvious design and clear require- 
 ments." See note 2, under the title of th© act. See also Supt. 
 V. Heath, 2 McCart. 22, in which Chancellor Green said: "It 
 must be borne in mind that the statutory remedy must be strictly 
 pursued; that the statute alters the existing law so far, and no 
 furher, than its terms require, and that it cannot be extended by 
 construction." 
 
 1. WHO MAY BE A CLAIMANT. Only a creditor of the 
 huilder can have the remedy provided by this section,- it is not 
 given to those who supply the builder's sub-contractor, or em- 
 ploye, with labor or materials or both. 
 
 This was correctly said, by Vice Chancellor Van Fleet, in Kirt- 
 land V. Moore, 13 Stew. 106, to be the plain direction of the 
 statute; although it does not appear that it was necessary to so 
 hold in that case. In Carlisle v. Knapp, 22 Vroom 329, however, 
 the question was definitely presented to the Court of Errors and 
 Appeals and decided. 
 
 The sufficient reason for the decision, as was there intimated, 
 is because the third section plainly gives its remedy only when 
 the builder refuses, upon demand, to pay any person, material- 
 man or otherwise, the money or wages due to him; and this lan- 
 guage necessarily implies that such claimant must be one who 
 is legally entitled to make such a demand upon the builder, as 
 the debtor from whom his money or wages are due, and mani- 
 ifests that the legislative intention was that "the remedy pro- 
 vided by the third section is to extend only to creditors of the 
 contractor with the owner" (the builder). Eeviewing the pre- 
 vious course of legislation, whereby this remedy, originally given 
 by the act of 1835 to such mechanics as were employes of the 
 builder, and hence always his creditors, was extended, by the 
 Revision of 1874 (following the act of 1863, p. 275), after the 
 abortive attempt in that direction in the act of 1853, to "persons 
 who may have furnished materials used in the erection of any 
 such house or other building," it was concluded that the gen- 
 erality of those words, in legislation originating so loosely, could 
 not defeat the obvious intention, elsewhere manifested in the 
 section and above noted ; and that the words, "to such contractor," 
 must be read into the section after the words, "may have fur- 
 nished." It may be noted here that the amendment of 1905 
 adopts this reading, in effect, by the more economical insertion of 
 the word, "him," instead of the words suggested by the Court of 
 Errors and Appeals. That the decision in Carlisle v. Knapp, was 
 perfectly sound, is apparent, not merely by this legislative adop- 
 tion of the result; but because, in addition to what has already 
 been noted, the section, as was there intimated, contemplates that 
 the debt due the claimant shall be one which, when paid by the 
 owner, shall entitle the latter, without the builder's assent, to 
 offset (this is the exact term of the original act, it will be noted) 
 against such builder, in the settlement of the accounts between 
 them : and this would be a most startling, if not legally impos-
 
 =54 Mechakics Liex Law. 
 
 sibk, thing, if the debt so paid to such claimant were not a debt 
 due to him from such builder. Carlisle v. Knapp, to the point 
 here in question, has been cited and followed or approved in 
 Bruce v. Pearsall, 30 Vroom 62; Building and Loan Assn. v. 
 Williams, 12 Dick. 503; Brennan v. Industrial, etc., Assn., 17 N. 
 J. L. J. 204; Gardn-er & Meehs Co. v. N. Y., etc., R. R., 43 Vroom 
 257; Fehling v. Goings, 1 Rob. 375; Beckhard v. Rudolph, 2 
 Eob. 740. 
 
 (&.) 
 
 A GENERAL CREDITOR OF THE BUILDER for moneys 
 loaned to him, although to enable him to carry out his contract 
 with the owner, cannot have the benefit of this section, Williams 
 V. Bradford, 21 Atl. 331 (Grey, V. G.) ; Evans v. Loiver, 1 Rob. 
 232; so also a claim for tools supplied the builder is invalid, 
 Evans V. Lower, supra. 
 
 (c.) 
 
 The ASSIGNEE OF A CLAIMANT, who might himself give 
 notice (having an inchoate lien), may, perhaps, give notice; but 
 should probably do so in the name of the assignor for his, the 
 assignee's, benefit. See note to § 1, assignability of lien claim; 
 and South End Co. v. Harden, 52 Atl. 1127. 
 
 id.) 
 SUB-CONTRACTORS. As the third section stood before 
 the amendment of 1905, it was held, in Beckhard v. Rudolph, 2 
 Rob. 740; reversing the contrary view of V. C. Stevenson, in 
 s. c, 2 Id, 315; that an employe or a sub-contractor of the 
 builder, who furnishes the latter with materials, and the labor 
 of himself or servants, necessary to instal such materials in situ, 
 can have the remedy by stop notice for the price of all that he 
 has so furnished. The view of the Vice Chancellor was that the 
 statute was not to be construed liberally in favor of the claimant 
 and against the owner, but vice versa; and that sucli claimant 
 was neither a laborer nor journeyman, employed by the builder, 
 nor a person who furnished him materials, so far as the labor 
 and work of installing them in situ was concerned. By way of 
 illustration, he instanced the case of a sub-contractor who should 
 furnish labor only, as in the case of a mere pun^eyor of labor, 
 an engineer contracting to make measurements and set stakes 
 for the builder, a bricklayer undertaking to lay brick to be sup- 
 plied by the builder, and the like. In the case of McNah, etc., Co. 
 V. Paterson, etc., Co., 1 Buch. 133, such a claim was presented for 
 decision to the same Vice Chancellor, under the unamended 
 wording of the section; and he held that such claim, being the 
 claim of a sub-contractor who had excavated the cellar, with his 
 teams and laborers for the builder, at a price per cubic yard, was 
 invalid. No deliverance on that subject has as yet been made 
 in the Court of Errors and Appeals beyond the remark, in Beck- 
 hard V. Rudolph. 2 Rob. 740 (at p. 745), that if such claims are 
 not valid, "it must be on the ground that with respect to claims 
 for mere labor performed, the benefit of § 3 is (was) by its
 
 Revision of 1898, § 3, ISTotb 1. 55 
 
 terms restricted to any journeyman or laborer employed by him 
 (the contractor), etc." Although the McNah case went to the 
 Court of Errors and Appeals and was affirmed, there was no ap- 
 peal taken from the decision of the point at present under con- 
 sideration; the matter that was decided in that court being 
 the affirmance of the Vice Chancellor's allowance of claims of 
 sub-contractors for materials furnished and labor in installing 
 them in situ, under the rule settled in the BecJchard case, which 
 was re-affirmed. McNah, etc.. Co. v. Paterson Co., 2 Buch. 929. 
 As was said by the Vice Chancellor in the McNah case, 1 Buch. 
 133, at page 155, the section, as amended in 1905, now plainly 
 gives a sub-contractor the remedy, whatever the character of his 
 contract may be; although the legislature carelessly has failed 
 to make the necessary corresponding changes in the wording of 
 other sections, notably the fourth section. 
 
 (e.) 
 
 MAY CLAIMANTS WHO CAN FILE A LIEN ALSO GIVE 
 STOP NOTICE? In Summermmi v. Knowles, 4 Vroom 202, 
 an action at law was brought against the owner by a material- 
 man upon his stop notice, and the declaration failed to aver that 
 the contract was in writing and filed. It was held that the dec- 
 laration was fatally defective, because of such omission, because 
 the word, such, in the phrase, "any person who may have furnished 
 materials used in the erection of such house, etc.," must be re- 
 ferred, for its antecedent, to the phrase in the second section, 
 "any building erected in whole or in part, by contract in writing," 
 as qualified by the requirement that such contract be filed: and 
 that, therefore, the right to resort to the remedy by stop notice, 
 in the case of a materialman, can exist only when he is, by 
 the filing of the contract, deprived of a right to file a lien claim. 
 It will be noted that the language of the third section, from 
 the beginning to the present time, omits this imix»rtant word, 
 such, in the clause which gives journeymen and laborers (and 
 now sub-contractors) the right to a stop notice, and confers it 
 upon them simply, if employed by the builder "in erecting or 
 constructing any building." 
 
 Notwithstanding this very material difference in wording, it 
 has been said in several cases, Carlisle v. Knapp, 22 Vroom 329; 
 Frank v. Freeholders, 10 Vroom 347; BecWiard v. Rudolph, 2 Rob. 
 740; and plainly held in one. Weaver v. Atlantic Roofing Co., 12 
 Dick. 547, that no person can have the remedy, by way of stop 
 notice, unless the owner's contract has been duly filed. The only 
 point decided in the Carlisle case was that a person who furnished 
 a sub-contractor materials could not give notice, because the 
 obvious pui-pose of the third section is to provide a remedy only 
 for creditors of the builder. In the Frank case, the action was a 
 suit at law upon a notice, given to the owners of a building, 
 designed for public use (county buildings), by a sub-contracting 
 painter who furnished his materials and applied them. It \yas 
 intimated that, on grounds of public policy no right of lien 
 could be enforced, if it could exist, against such a building; but
 
 56 Mechanics Lien Law. 
 
 as the contract with the builder had been filed, it was held that 
 the claimant should have judgment; Justice Dixon dissenting 
 on the ground that no lien could exist upon such buildings, and 
 that the filing of the contract could operate to give a remedy, 
 imder the third section, only when it cut off a lien that other- 
 wise could have existed under the first section. In the Weaver 
 case it was plainly held (by Vice Chancellor Grey) that where 
 the building contract is not filed (in this case it was insuffi- 
 ciently filed), l<iborers as well as materialmen, cannot have the 
 remedy by stop notice; since they may have a lien on the build- 
 ing under the first section. In the BecTchard case the question 
 in hand was not presented for decision ; but it was said, arguendo, 
 that "it has been repeatedly held that the remedy by stop notice 
 is confined to those who are prevented from having a lien upon 
 the building by reason of the filing of the contract." 
 
 With these decisions in mind. Vice Chancellor Stevenson, in 
 McNab, etc., Co. v. Peterson, etc., Co., 1 Buch. 133, points out 
 that the original enactment of this third section in 1835 gave 
 laborers and journeymen this remedy, by way of stop notice, 
 whether the building contract was filed or not; that when it 
 was not filed they had both remedies, a lien upon the building, 
 and the right of recourse to the fund by stop notice; that it has 
 been assumed that the workman's remedy, by stop notice, like 
 that of the materialman, is now confiiied to the case when the 
 building contract has been filed, but that the point is not dis- 
 cussed in the cases and the legislation which effectecl such a 
 change has not been indicated; but that, by the amendment of 
 1905, especially by placing a sub-contractor (as it does) in the 
 same class with journeymen and laborers, and not in the class 
 with mere materialmen, it is, perhaps, indicated that the stop no- 
 tice can now be employed by no one, if the owners contract has 
 not been filed. 
 
 It seems plain that not this, but quite a contrary conclusion is 
 warranted by the Vice Chancellor's premises. For if, prior to the 
 amendment of 1905, journeymen and laborers had a right to the 
 remedy by stop notice whexi the contract was not filed; that 
 amendment has not diminished their right, by merely giving it 
 also to such materialmen, or others, as may be sub-contractors 
 employed by the builder, which is all that the amendment does; 
 but has enlarged the rights of such materialmen, and given a 
 new right to such others. 
 
 There may, however, be a question, as to whether journeymen 
 or laborers had such a right prior to the amendment of 1905. 
 As noted already, the Weaver case is a decision in point, to the 
 effect that they had not; but that decision obviously passed the 
 point HOW in question sub silentio, and without due attention 
 to, or consideration of, the matter. In all the other cases above- 
 cited, the point was not ruled at all. It is possible that there may 
 be other cases like the Weaver case, which have actually ruled 
 a laborer's claim to be invalid because the contract was not 
 filed (was English v. Warren, 20 Dick. 30, such a case?); but 
 if so, it is quite certain that they too have passed the matter.
 
 Revision of 1898, § 3, Note 1. 57 
 
 like that case, without due considei-ation ; and that a reference 
 to the history of this legislation would show, as Vice Chancellor 
 Stevenson has elaborately pointed out, in the McNah case, that 
 the contrary was originally, if it be not still, the law. 
 
 The solution of the question thus raised, perhaps, depends 
 upon whether the reasoning in Summerman v. Knowles, supra, 
 exhausts all the possible grounds upon which that decision could 
 have been rested. If the reason there given was the only reason 
 upon which the third section could then have been construed 
 as denying a materialman a right, by stop notice, when the con- 
 tract was not filed, it is the only reason now, and that being 
 80, the court must then have construed that section, and must 
 now construe it, as giving to laborers and journeymen (and now 
 sub-contractors) the very right that it denied to materialmen; 
 for the right of the latter was (and still is) given only for ma- 
 terials furnished for any such house, while the right of the work- 
 man is given when he has been employed upon a7iy building. 
 
 The Court of Errors and Appeals, in Carlisle v. Knapp, 22 
 Vroom 329, concluded that the legislature did not intend to give 
 to materialmen generally, but only to such of them as are credi- 
 tors of the builder, the remedy by stop notice, as we have above 
 seen; because such intent was to be gathered from the history 
 oi the legislation and the general object of the section, as well 
 as from its terms and the procedure it requires; and so con- 
 cluded that the words, "to such contractor," must be read into 
 the section. Perhaps there may be grounds upon which the 
 court may conclude that the phrase, "employed by him in the 
 erecting or constructing any building," must be read as though 
 it said "any such building;" but, if not, it is difficult to see 
 how the conclusion can be avoided, that journeymen and la- 
 borers, and now sub-contractors, employed by the builder, can 
 have the remedy by stop notice, whether a contract is filed or 
 not; but that materialmen, who are not also such sub-contrac- 
 tors, cannot. 
 
 if.) 
 It may be here noted that WHERE THE CONTRACT, AS 
 FILED, FALSELY STATES THE PRICE, as at $5,100 when 
 the real price was $4,100, its filing may be treated as a nullity 
 or otherwise, at the ele<?tion of the claimant, who may, therefore, 
 have either a lien or the remedy by stop notice, accordingly as he 
 so elects. Murphy v. Nicholas, 49 Atl. 447. 
 
 (g.) 
 
 It may be also again noted that, in the case of BUILDING'S 
 FOR PUBLIC PURPOSES, while there can be no lien enforced 
 against them, a mechanic or materialman may have the remedy of 
 a stop notice, if the contract be filed. Frank v. Freeholders, 10 
 Vroom 347; and such remedy is concurrent with, and not ex- 
 cluded by, the remedy also given by the act of 1892, p. 369. 
 Delafield v. Sayre, 31 Vroom 449; Cam^den. v. Camden, 47 Atl. 
 220; Garrison v. Borio, 47 Atl. 1060; iV^or^on v. Sinlch^rn, 48
 
 68 Mechanics Lien Law. 
 
 Atl. 822; s. c. 50 Atl. 506; Hall v. Jersey City, 50 Atl. 603; 
 Kelaher v. English, 50 Atl. 902 ; Arzonico v. West Neiv Yorh, 69 
 Atl. 450. 
 
 2. THE STATUTORY REQUIREMENTS MUST BE 
 STRICTLY PURSUED. Supt. v. Heath, 2 McCart. 22. 
 
 The claimant must be able to show : 1. That the alleged owner 
 has some estate or interest in the land upon which a building 
 is being, or has been, erected. 2. That a building, or some part 
 thereof, is being or has been erected, or constructed, thereon pur- 
 suant to a written contract which has been filed. 3. That the 
 claimant is a creditor of the building contractor, for work done, 
 or materials furnished, or for both. 4. That such work or ma- 
 terials were used in the erection or construction of such build- 
 ing. 5. That the claimant has demanded his debt of the builder. 
 6. That such debt was due before such demand was made. 7. That 
 the claimant demanded no more than was due him. 8. That the 
 builder refused to pay, upon such demand. 9. That the claimant 
 has given the owner notice in writing "of such refusal and of the 
 amount due to him and so demanded." 10. That the owner is sat- 
 isfied that the claim is correct. 
 
 These various requirements will now be considered in order, 
 so far as they are not elsewhere dealt with, in which case proper 
 reference will be made. 
 
 1. 
 
 THE ALLEGED OWNER MUST HAVE SOIVIE INTEREST 
 OR ESTATE IN THE LAND. This seems to be the ruling of 
 the Court of Errors and Appeals, in Gardner & Meehs Co. v. 
 Herold. 72 Atl. 24. In that case the contract was made by a 
 woman's husband for the erection of a building on her land; in 
 which, under the decision in Porch v. Fries, 3 C. E. Gr. 204; 
 app., in Trade Ins. Co. v. Barracliff. 16 Vroom 543, the husband 
 had no estate or interest. It was held that the plain words of 
 the statute require that the notice be served upon the owner 
 of the building, and that no one could be the owner of the 
 building on another's land, "if he had no estate whatever which 
 would enable him either to enjoy the use of the building, or to 
 sell or remove it." 
 
 See also under § 2, note, owner's signature to contract; also 
 under § 1, note, estate of owner. 
 
 2. 
 THERE MUST HAVE BEEN A CONTRACT WHICH HAS 
 BEEN FILED. There may be a doubt as to whether this is al- 
 ways so or not. See previous note, 7nay claimants who can file 
 a lien, also give a stop notice, where the matter is considered at 
 length. 
 
 3. 
 THE CLAIMANT MUST BE A CREDITOR OF THE 
 BUILDER for work done or materials furnished, or for both.
 
 Kevision of 1898, § 3, Note 2. 59 
 
 See for a full consideration of this, our previous note, who 
 inuy he a claimant. 
 
 4. 
 THE WORK OR MATERIALS MUST HAVE BEEN USED 
 IN ERECTING THE BUILDING. 
 
 The statutory words, "for labor or materials used in the erec- 
 tion of such building" seem plainly to be an adjunct to the 
 previous words, "due and claimed by any such journeyman, la- 
 borer, materiahnan, or sub-contractor;" and, therefore, limit the 
 right of the claimant to give notice only of a debt which is 
 due therefor. It was contended in McNah, etc., Co. v. Paterson, 
 etc., Co., 2 Buch. 929, that the notice must state that the ma- 
 terials, etc., were used, etc., and, in holding that the notice need 
 not so state, it was said: "The notice was: This is to notify 
 you that I have sold to the Paterson Co. for your building on 
 Straight street, materials to the amount of, etc. This is, in 
 eflfect, an averment that the materials were used in the building. 
 That such was the case, in point of fact, is settled by, etc." 
 In the same case, in the court below, 1 Buch. 133, at page 150, 
 it is said that a failure to show that the materials, ete., have 
 been n^ed in the building would defeat the claimant's lien on 
 the fund. See also Beckhard v. Rudolph, 2 Rob. 740; rev. s. c. 
 2 Id. 315. 
 
 5. 
 
 THE CLAIMANT MUST MAKE DEMAND UPON THE 
 BUILDER. 
 
 See post in this note § 9 as to the allegation of a demand in 
 the claimant's notice. 
 
 See Adams v. Wells, 53 Atl. 610. 
 
 PROVING DEMAND. The presentation of a bill to the 
 builder, who has no money with which to pay it, coupled with the 
 claimant's statement to such builder that the former is going 
 to give the owner notice of his claim, and the fact that the cor- 
 rectness of the claim was undisputed, and that the builder then 
 said he could not pay it, is sufficient proof of a demand and re- 
 fusal. Evaiis V. Lower, 1 Rob. 232. So when the contractor aban- 
 dons the contract before his sub-contractor has completed 
 his work, and gives the latter a written agreement, rescinding 
 the sub-contract as to the work not completed and fixing the 
 amount due for the work done, and this is done because the con- 
 tractor cannot proceed because unable to pay, there is a sufficient 
 demand and refusal. South End Co. v. Harden., 52 Atl. 1127. 
 
 The claimant need not make the demand in i^erson, neither need 
 he give any written, authority to the one who does so. Fehling v. 
 Goings, 1 Roh. 375. 
 
 A demand for less than is due may be tantamount to a demand 
 for all that is due. South End Co. v. Harden., 52 Atl. 1127. 
 
 6. 
 THE CLAIMANT'S DEBT MUST BE DUE BEFORE HE 
 DEMANDS IT.
 
 60 Mechanics Lien Law. 
 
 A claimant's proof fails when his demand was made before 
 his whole bill became due, although it did all become due before 
 he served notice on the owner. Kirtland v. Moore, 13 Stew. 106; 
 McPherson v. Walton, 15 Stew. 282; Bowlhy v. WilUson, 11 N. J. 
 L. J. 42; Hall v. Baldwin, 18 Stew. 858; Flaherty v. Atlantic Co., 
 44 Atl. 186; Donnelly v. Johnes, 44 Atl. 180; Reeve v. Elmendorf 
 9 Vroom 125; Adams v. Wells, 53 Atl. 610. 
 
 For the case when the builder rescinds a sub-contract before it 
 is completed see ante in this note, § 5. South End Co. v. Harden, 
 52 Atl. 1127; Evans v. Lower, 1 Eob. 232. 
 
 TAKING A NOTE operates to postpone the accrual of the 
 claimant's debt during the running of the note, McPherson v. 
 Walton, 15 Stew. 282; even although the note is not accepted as 
 payment of the debt. Fry v. Patterson, 20 Vroom 612; Kirtland 
 V. Moore, 13 Stew. 106; Taplor v. Wahl, 43 Vroom 10; but taking 
 judgment on his claim has no such effect, Anderson v. Huff, 4 
 Dick. 349 ; nor does the fact that he has obtained an order from 
 the builder on the owner, Dunn v. Stokern, 16 Stew. 401 ; and see 
 under § 1, note 3. 
 
 7. 
 THE CLAIMANT'S DEMAND MUST NOT BE FOR MORE 
 THAN IS THEN DUE HIM. 
 
 In determining the amount of the debt dtie, all just credits 
 must be deducted, Flaherty v. Atlantic, etc., Co., 44 Atl. 186; 
 and the account must not include any item of work or materials 
 which are not properly part of the work imdertaken by the builder, 
 in his contract. McPherson v. Walton, 15 Stew. 282. The claim- 
 ant may give notice for a less sum than that which is due him, 
 in which case he will be deemed to have waived his claim against 
 the fund for the excess. Donnelly v. Johnes, 44 Atl. 180; South 
 End Co. V. Harden, 52 Atl. 1127. But it will be fatal for him 
 to demand anything beyond the sum which is due him, Reeve v. 
 Elmendorf, 9 Vroom 125; Kirtland v. Moore, 13 Stew. 106; Mc- 
 Pherson V. Walton, 15 Stew. 282 ; Hall v. Baldivin, 18 Stew. 858 ; 
 Flaherty v. Atlantic Co., 44 Atl. 186; Donnelly v. Johnes, 44 Atl. 
 180; even although the excess is but a small amount. Hall v. 
 Baldwin, 18 Stew. 858 (E. & A.) ; Ad^ims v. Wells, 53 Atl. 610. 
 
 We had supposed that the rule as above stated had been firmly 
 settled; but in the late case of Evans v. Lower, 1 Rob. 232, it 
 was held by Vice Chancellor Reed, that a claim was good; al- 
 though the amount demanded (and specified in the notice) was 
 excessive, by reason of the inclusion of non lienable items for 
 tools supplied and money loaned; and that, as the whole amount 
 so demanded was in fact due the claimant, and the non lienable 
 items were included in the demand and notice in good faith, 
 though by mistake, the claimant was entitled to be paid the 
 amount demanded, less such items. Again in Taylor v. Wahl, 
 40 Vroom 471, Justice Fort, speaking in the Supreme Court said, 
 at page 473 : "If it appear that the claim is ex- 
 cessive, to the knowledge of the claimant, the claimant cannot re- 
 cover anything, and the owner is entitled to a verdict. The prin-
 
 Revision of 1898, § 3, Note 2. 61 
 
 ciple, controlling in such a case as this, is the same as that de- 
 clared by the Court of Errors and Appeals to apply where a no- 
 tice to hold back is given to a city by a claimant against a con- 
 tractor upon work under a public contract. (Citing) Camden 
 Wks. V. Camden, 19 Dick. 723." 
 
 The case cited was a case arising under the act of 1892, p. 369. 
 That act, in its first section, gives a lien to every laborer, etc., 
 upon the moneys in the control of the municipality, ui)on his 
 complying with its second section. In § 2, it provides that such 
 claimant shall, inter alia, file a verified statement of "the amount 
 claimed, from whom due, and if not due when it will be due, giv- 
 ing the amount of the demand after deducting all just credits 
 and oflfsets." In section 5, it provides "that the lien shall attach 
 from the time of filing thereof." It will be evident, upon the most 
 cursory reading of its provisions, that this act expressly contem- 
 plates that the lien, which it gives, may be called into existence-, 
 by filing said verified statement, before there is anything due ^be 
 claimant; and, that it, therefore, contemplates, by necessary in- 
 ference, that such statement shall be effective to call the lien into 
 being, although it may be difficult, or even impossible, to state 
 therein the precise amount which will be due such claimant. As 
 a consequence, it was necessarily held that the claimant, under 
 this act, does not lose his lien by an erroneous statement of 
 the amount claimed, unless he has knowingly and consciously 
 over-stated it. Camden Iron Works v. Camden, 15 Dick. 211; 
 s. c. aff. 19 Dick. 723; Garrison v. Borio, 10 Dick. 236; Hall v. 
 Jersey City, 17 Dick. 489; s. c. aff. 19 Dick. 766. 
 
 But a very different rule, as is above pointed out, has been 
 adopted in respect of the requirements of the third section of 
 the mechanic's lien act, and that rule, adopted upon grave con- 
 sideration, has been followed and applied in numerous cases for 
 many years. It is, therefore, questionable whether the decision 
 in Evans v. Loiuer was sound; and it is pretty clear that the 
 expression in Taylor v. Wahl, which was obiter, was also an in- 
 advertence. See also note 4 to § 2 of the act of 1892 post. 
 
 Since the foregoing note was written, the act of 1910, p. 500. 
 has been passed, amending the third section so as now to require 
 the claimant to give notice of the amount due to him, "specify- 
 ing said amount as nearly as possible." It may be said, with 
 much force, that an amount can never be said to be due which 
 is not at the same time capable of exact ascertainment and state- 
 ment; and that, hence, the amendment has altered the section in 
 no respect. 
 
 We imagine, however, that it will be urged, and probably be 
 held, that hereafter a notice will be good, notwithstanding an 
 overstatement of the amount actually due, when it appears that 
 the claimant has not wittingly intended any fraud and has exer- 
 cised all the care, in ascertaining and stating the amount, which 
 our familiar friend, the reasonably prudent man, ought, under 
 aU the circumstances of the particular case, to have exercised. 
 
 If this view be adopted, there will be little likelihood that a
 
 62 Mechanics Lien Law. 
 
 notice will ever be found to le bad, in an action at law, because 
 of an over-statement of the amount due; provided the good and 
 lawful twelve are entrusted with the duty of detennining the 
 question: and the legislature might as well have enacted that no 
 notice of claim shall be held to be bad for an over-statement of 
 the amount due; unless it be made with a palpably fraudulent 
 intent, or under circumstances which unmistakably indicate that 
 the claimant has made no attempt, in good faith, to state, with 
 precision, the amount due to him. 
 
 In the policy that underlies this sort of legislation, the unfor- 
 tunate owner, who has the scot to pay, does not seem to be re- 
 garded with much consideration ; but his embarrassments are un- 
 worthy of serious regard, and it is notorious that thrift is greatly 
 promoted by every device that discourages the exercise of it. 
 
 8. 
 THE BUILDER MUST HAVE EEFUSED UPON DE- 
 MAND, TO PAY. 
 
 See the cases below cited to the point that the claimant s notice 
 must state such refusal, which, of course, must be the statement 
 
 of a fact. , . 
 
 If the claimant demanded less than his due it is a good de- 
 mand; and a refusal to pay upon such demand may be a refusal 
 to pay all that the builder owes such claimant. South End Co. v. 
 Harden, 52 Atl. 1127. 
 
 \s to what is sufficient proof of a refusal, see Evans v. 
 Loiver, 1 Rob. 232; South End Co. v. Harden, 52 Atl. 1127, ante, 
 this note § 5. 
 
 See also Adams v. Wells, 53 Atl. 610. 
 
 THE CLAIMANT MUST GIVE THE OWNER NOTICE IN 
 WRITING OF SUCH REFUSAL AND OF THE AMOUNT 
 DUE TO HIM AND SO DEMANDED. , j . 
 
 FORM OF NOTICE. The notice is not a pleading and need not 
 have the certainty which a pleading must have. It may be in any 
 form which in effect eivcs the written notice which the statute pre- 
 scribes. McNah, etc.. Co. v. Paterson, etc., Co. 1 Buch. 133; 
 Fehling v. Goings, 1 Rob. 375. It may consist of several papers 
 taken together, such as an order, an assignment and a notice. 
 McNah, etc., Co. v. Paterson Co., 2 Buch, 729; aff s c, 1 Id 
 133 It may be addressed to the \\n-ong person if it be_^in fact 
 served upon the right one; or it may misname the builder il it 
 sufficiently identify him so that the owner is not misled. Gardner 
 & MeeTciCo. v. Herold. 72 Atl. 24, settling doubts expres^ m 
 BecTchard v. Rudolph, 2 Rob. 315. So also is McNal, etc., Co. v. 
 Paterson, etc., Co.. 2 Buch. 729, aff. s. c, 1 Buch. 133. 
 
 SIGNATURE. A signature by one partner for the hrrn is 
 good. Williams v. Bradford. 21 Atl. 331. The claimant's name 
 may be signed by his agent or attorney, without anywrittrai au- 
 thority therefor. Fehling v. Goings, 1 Rob. 375, explaining Foster
 
 Revision of 1898, § 3, :N'ote 3. 63 
 
 V. Rudderow, 3 Atl. 694, as not deciding othei-wise. A corporate 
 claimant's notice need not be under seal nor need its agent who 
 signs it have express or written authority. Flaherty v. Atlantic 
 Co., 44 Atl. 180. It may not need any signature at all, if it give 
 the owner the requisite information in some authentic way. 
 Fehling v. Goings, supra. 
 
 ESSENTIAL CONTENTS. It must set forth two things: 1. 
 The amount of the debt due the claimant. 2. That the builder 
 has refused to pay. These are said to be the only things which it 
 must set forth. McNah, etc., Co. v. Paterson, etc., Co., 1 Buch. 
 133; Fehling v. Goings, 1 Eob. 375. 
 
 STATEMENT OF AMOUNT DUE. It is probably fatal if 
 the notice over-state the amovmt really due. See cases cited in 
 this note under § 7. It is undoubtedly fatal if it state no amount 
 at all, or if the debt was not due until after notice was given or 
 demand made. See this note, § 6. 
 
 STATEMENT OF REFUSAL TO PAY. It must, of course, 
 set forth the builder's refusal. Thus it has been held that it is 
 not sufficient for it to state that the builder neglected to pay on 
 demand. Hall v. Baldwin, 18 Stew. 858; and so that it is not 
 equivalent to the statement of a refusal to write: "I can't seem 
 to get a settlement with the builder, Mr. J." Donnelly v. Johnes, 
 44 Atl. 180. See also Bowlhy v. Willison, 11 N. J. L. J. 42; 
 and cases cited ante in this note, § 5. 
 
 ^ STATEMENT OF DEMAND. It has been held that the no- 
 tice must set out that payment has been demanded. Donnelly 
 V. Johnes, 4A Atl. 180; but it was held in BecJchard v. Rudolph, 
 2 Eob. 740; rev. s. c, 2 Id. 315, that a notice which sets out a 
 certain sum as due for materials used, etc., and that the builder 
 has refused to pay the money so due sufficiently states a demand, 
 since refusal implies a previous demand or request for payment : 
 and in Fehling v. Goings, 1 Eob. 375, it was held that the notice 
 need not state that payment has been demanded. So also it was 
 said in the McNah case. 1 Buch. 133, that the statute does not 
 require that the notice shall set forth any demand made. 
 
 SEEVICE OF NOTICE. A stop notice may be effectively 
 served by the claimant or by his attorney, or agent. Such agent 
 or attorney needs no written authority. Fehling v. Goings, 1 
 Eob. 375. 
 
 10. 
 THE OWNEE MUST BE SATISFIED OF THE COEEECT- 
 NESS OF THE CLAIM. 
 
 See note 5 post; also Evans v. Lower, ante in this note, § 5. 
 
 3. EFFECT OF NOTICE is to assign, pro tanto, to the claim- 
 ant the right of the builder in the fund', Wightman v. Brenner, 11 
 0. E. Gr. 489; Anderson v. Huff, 4 Dick. 349. In some cases it 
 was doubted or denied that such assignment extended, as well to 
 what is to grow due, as to what is due, when the notice is served, 
 Kiriland v. Moore, 13 Stew. 106; Craig v. Smith, 8 Vroom 549; 
 Boulhy V. Willison, 3 N. J. L. J. 42; and see. Shannon v. Hohoken,
 
 64 Mechanics Lien Law. 
 
 10 Stew. 123, 318; Lanigan v. Bradley, etc., Co., 5 Dick. 201; Board 
 of Ed. V. Dxiparquei, 5 Dick. 234; Chosen Freeholders v. Lindsley, 
 14 Stew. 189, 195; Burnett v. Jersey City, 4: Stew. 341, 351; but 
 these cases were subsequently overruled, in this respect, and it 
 was settled that a stop notice operate* both on that which is due 
 and that which is to grow dine, Mayer v. Mutchler, 21 Vroom 
 162; Budd v. Trustees, 22 Vroom 36; Anderson v. Huff, 4 Dick. 
 349; Donnelly v. Johnes, 44 Atl. K. 180; Booth v. Kiefer, 47 Atl. 
 R. 12; and, in Donnelly v. Johnes, supra, it was said, that such 
 notices must be satisfied out of the next installment becoming due 
 to the contractor, after their service, and if they are not com- 
 pletely satisfied by it, they apply to the next instalhnent, as to 
 the residue, and so on until the final installment is disi)osed of. 
 
 It will be noticed that the legislature by the amendment made 
 in 1895 has embodied the construction of the statute, just above 
 noted, in its express terms. 
 
 If the builder has agreed to take his pay in land, the claimant, 
 imder a stop notice, acquires an equity to be paid out of such 
 land. Anderson v. Huff, 4 Dick. 349; but in any case, the claim- 
 ant's right ag:ainst the fund must, of course, be limited to such 
 part of it as has been earned by the builder, or for his account. 
 Mayer v. Mutchler, 21 Vroom 162 ; and the owner's right to re- 
 tain the moneys earned by the contractor until the completion 
 of the building, and then to make deductions for delay in the 
 work, or for the cost of completing it is available to him as 
 much against claimants as against the contractor. Reeve v. 
 Elmendorf, 9 Vroom 125; Bemz v. Marcus Sayre Co., 7 Dick. 
 
 275 
 
 AS AGAINST THE BUILDER'S SURETIES, who have com- 
 pleted the work which he has abandoned, in order to protect them- 
 selves, the rights of claimants by stop notice, are postponed both 
 as to a retained percentage that had been earned by such con- 
 tractor, and the balance of the contract price; until such sure- 
 ties have been reimbursed by their expenditures. *S^^. Peter's 
 Church V. Van Note, 21 Dick. 78. This is because nothing i3 
 due such contractor \mtil, the sureties have completed their un- 
 dertaking, and have been paid for it. But where the sureties 
 merely furnish to the builder the materials and labor with which 
 to finish the work, although he is insolvent and unable other- 
 wise to complete it; they have no superior equity therefor, and 
 the money becomes due the builder, as the work progresses, and 
 is subject to claims by stop notice. Evans v. Lower, 1 Rob. 232 ; 
 compare Fell v. McManus, 1 Atl. 747. 
 
 AS TO A TRUSTEE IN BANKRUPTCY, a stop notice is 
 not a "legal proceeding" within § 67, f f of the Bankrupt Act, 
 which avoids all liens obtained through legal proceedings. Those 
 words mean proceedings in a court of justice. Neither is it such 
 an assignment as is invalidated by that section, nor is it a trans- 
 fer by the builder so as to be void because put in within four 
 months before his bankruptcy. Fehling v. Goings, 1 Rob. 375.
 
 Revision of 1898, § 3, Xote 5. 65 
 
 4. LABOE OR MATERIALS USED. As to this, see ante, 
 note 2, to this section, § 4. 
 
 5. ACTION AT LAW. A claimant can bring an action at 
 law against the owner, but not if the latter has reasonable cause 
 to dispute his claim. Reeve v. Elmendorf, 9 Vroom 125. This 
 does not mean merely that a plea, that the amount demanded 
 in the notice is excessive, is a good plea in bar; although that 
 also is true, since the claimant cannot have judgment for a 
 sum less than he has demanded of the builder, Reeve v. Elmen- 
 dorf, supra; but even if the claim is not excessive the claimant 
 cannot have a verdict, if he fails also to aver and prove that, 
 before suit begun, the owner was in fact satisfied of the correct- 
 ness of his demand, ^\^len the claimant cannot show those facts, 
 his only safe course is to first verify his claim by a judgment 
 against the builder, although such judgment will not conclude 
 the owner. Reeve v. Elmendorf, supra. 
 
 By virtue of § 4, the claimant must so verify his claim in any 
 case when notified, under that section, to do so; but, in the 
 absence of such notice, the mere fact, that the builder disputes 
 the correctness of his claim, will not preclude the claimant from 
 beginning suit against the owner; if he can show that his claim 
 is in fact correct, and that the owner is satisfied that it is. 
 And this he may establish by showing that such owner ought 
 to have been so satisfied; although he may not be able to show 
 that the owner admitted the fact so to be, and even in the face 
 of the latter's expressed dissatisfaction, if such expressed dis- 
 satisfaction can be shown to have been without foundation and 
 merely captious. Reeve v. Elmendorf, supra. 
 
 JURISDICTION. The statute does not limit the claimant to 
 any particular court, and he may therefore bring his action in 
 any of the courts of law. Thus, in Summerman v. Knowles, 2 
 Vroom 202, the action was begun in the small cause court, and 
 taken, by apxjeal. to the common pleas; in Taylor v. Reed, 52 
 Atl. 579, it was begun in the district court; in Craig v. Smith, 
 8 Vroom 549; Reeve v. Elmendorf, 9 Vroom 125; Mayer v. 
 Mutchler, 21 Vroom 162; and Blauvelt v. Fuller, 48 Atl. 538, 
 suit was begun in the circuit court; while, in Taylor v. Wahl. 40 
 Vroom 471, it was begun in the Supreme Court. 
 
 WHEN SUIT MAY BE BEGUN. Although the stop notice 
 impounds moneys to grow due, as well as those already due, yet 
 suit cannot be begun against the owner until there is money 
 due the contractor, Craig v. Smith. 8 Vroom 549; Mayer v. 
 Mutchler, 21 Vroom 162; and therefore a claimant cannot have 
 an action against the owner unless the contractor could have re- 
 covered, either on the contract or a quantum meruit, had there 
 been no stop notices. Mayer v. Mutchler, supra. So if, on a dis- 
 pute between the owner and contractor, it is submitted to arbitra- 
 tion to determine whether the contract has been properly per- 
 formed, etc., the owner would not be liable to suit until after an 
 award is made against him. Booth v. Kiefer. 47 Atl. R. 12. 
 
 But the claimant, when he is entitled to sue the owner at all, 
 5
 
 66 Mechanics Lien Law. 
 
 may sue on a quantum meiniit, for the partial performance of an 
 entire contract which by no fault of his has not been completed. 
 Reeve v. Elmendorf, 9 Vroom 125. 
 
 In Crane v. Belfatto, 69 Atl. 1085, a materialman served a no- 
 tice before anything was due the builder. After that he con- 
 sented that the owner pay the builder $200, the lirst payment 
 which the latter had then more than earned. The balance of the 
 contract price was $600, and the claimant's bill was $300. The 
 owner paid the builder $500, instead of the $200, and the latter 
 then quit, and it cost the owner $250 to finish the building. 
 Held that the claimant was entitled to judgment against the 
 owner, inasmuch as he should have had $600 with which to 
 finish the building and pay the claimant. 
 
 PLEADING. The claimant in declaring should study the 
 statute in connection with the several matters set forth in the 
 preceding note 2, §§ 1-10. It was held in Summerman v. Knowles, 
 4 Vroom 202, tlaat the declaration must allege that the building 
 contract was in writing and filed. It is intimated in Gardner & 
 Meeks Co. v. Herold, "rl Atl. 24, that the defendant must be the 
 owner of some estate or interest in the land upon which the build- 
 ing is erected. It may be unnecessary to allege that such was the 
 fact, but it would be wise to do so, and it would certainly be 
 good pleading. The various other particulars, set forth in the 
 note above referred to, should each be appropriately alleged. 
 
 It is said, obiter, in Gardner & Meeks Co. v. Herald, supra, that 
 the defendant owner may plead that the value of the land 
 and building is Ises than the sum of the stop notices ; and thereby 
 restrict the judgment to a judgment specially to be satisfied out of 
 the property. That case was an action at law upon a stop no- 
 tice served upon a married woman, who was the defendant, upon 
 whose lands a building had been erected, with her knowledge, 
 under a contract made by her husband in his own name, as owner, 
 and duly filed, but without in any way indicating that the wife 
 was the real party to the transaction as owner. The husband had 
 no estate or interest in the land. It was held that the action 
 against her would lie, and the opinion, quite obviously, seeks to 
 put that holding upon a basis that takes no particular account 
 of the fact that the defendant was a married woman. We have 
 considered the case, and the previous case of Earle v. Willetts, 27 
 Vroom 334, rev. s. c, sub nom WiUetts v. Earle, 24 Vroom 270; 
 and Neill v. Watson. 15 N. J. L. J. 138, in our previous note 1 to 
 § 2 of the statute. As there noted, the action is well adjudged 
 to- lie against the married woman owner, in such a case, because 
 the statute (§ 13) makes her the notoriously known real party 
 to the contract, as owner, and so entitled to the benefit of the 
 filing of the contract, on the one hand, and consequently subject 
 to answer to claimants giving her notice. But unless the provis- 
 ions of § 7, as construed in numerous cases in the Court of Chan- 
 cery, the Supreme Court, and the Court of Errors and Appeals, 
 are to be disregarded ; any other than a married woman owner, 
 who has not consented in writing that his lands shall be lienable 
 for the erection of a building thereon, cannot need to invoke
 
 Eevision of 1808, § S, Note 5. 67 
 
 the filing of the contract for such erection to protect his lands 
 from lien therefor; unless he is the real party as owner to such 
 contract, although not disclosed as such therein. Of course, if he 
 has so consented that his lands shall be lienable, the remedy 
 against him is by lien claim and suit to enforce the same, and 
 not by stop notice. Hence, it seems clear that in every action 
 at law upon a stop notice, the defendant owner, if liable at all, 
 must be so liable because he has, in law, been the one who con- 
 tracted for the erection of the building, whether as the known, 
 or as the undisclosed, principal: and this being so, his liability 
 to claimants upon s1x)p notice must be a liability to answer to 
 them to the extent of the unpaid contract price due to the builder, 
 and not otherwise. Manifestly a special plea that the land and 
 building are worth less than the notices, would confess the plain- 
 tiff's declaration without avoiding it. 
 
 A plea that at the time the notice was served the builder owed 
 the claimant less than the amount claimed in the notice and de- 
 mand is a good plea in bar. Taylor v. Wahl, 40 Vroom 471. 
 Such a plea is, in effect, a denial of a material allegation of the 
 declaration, and the matter of it could be given in evidence 
 und'er the general issue, as the action at law upon a stop notice 
 is necessarily an action on the the case upon an implied assump- 
 sit. Strictly by the rules of pleading, such a special plea would 
 be bad on special demurrer (motion to strike out), as amounting to 
 the general issue, but there is a tendency observable to discour- 
 age such motions, as savoring of undue technicality. 
 
 It is pertinent to observe that if it be not fatal for the claim- 
 ant's notice and demand to specify too large an amount, as the 
 amount due, when the excess is the result of honest mistake; the 
 fact of such honest mistake would be a good reply to such a special 
 plea. As has been above noted (note 2, § 7), we think an ex- 
 cessive claim is always fatal. As said in Reeve v. Elmendorf, 
 Vroom 125, JUDGMENT AT LAW ON A STOP NOTICE 
 CANNOT BE FOE A LESS AMOUNT THAN THAT MEN- 
 TIONED IN THE NOTICE AS DEMANDED. 
 
 The owner is not bound by a judgment obtained by the claim- 
 ant against the builder, see note 1, to § 4, post. 
 
 AMOUNT OF RECOVERY. It would seem that costs recov- 
 ered by the claimant in a suit on his claim against the builder, 
 could not be i-ecovered in the suit against the owner. Anderson 
 V. Huff, 4 Dick. 349. 
 
 ALLOWANCE TO OWNER, for the amounts due on stop no- 
 tices cannot be made in the suit at law against him, unless he has 
 paid them, Wightman v. Brenner, 11 C. E. Green 489; but, in 
 such a case, the owner may have an injunction, to restrain the 
 build'er from enforcing a judgment recovered against him for 
 the contract price. Wightman v. Brenner, supra. 
 
 INTERPLEADER SUIT. In a proper case, the owner who 
 has been served with stop notices may file an interpleader, bring- 
 ing, or offering to bring, the balance that is due on the contract 
 into court. 
 
 For the practice in such case, see Siipt. v. Heath, 2 McCart. 22 ;
 
 68 Mechanics Lien Law. 
 
 Kirtland v. Moore, 13 Stew. 106; and Hall v. Baldwin, 18 Stew. 
 858. See also Ter Knile v. Reddick, 39 Atl. 1062, as to what 
 such a bill should allege; Schmidt v. Eitel. 4 Kob. 8, that it must 
 allege that there was a written building contract and that it was 
 filed; Turner v. Miller, 61 Atl. 741, that such a bill should not be 
 filed when there is no real doubt as to how the fund is to be 
 applied; and Ereutz v. Cramer, 19 Dick. 648; English v. Warren, 
 20 Dick. 30, that the complainant cannot have costs if he alleges 
 and tenders less than he is found, upon hearing, to actually owe. 
 
 This remedy has been sought in a number of other reported 
 cases; and, as it takes some time to ascertain what these cases 
 are, the list of them is hereto appended, omitting those already 
 flloov6 CI tod I 
 
 Adams v.' Wells, 19 Dick. 211; 
 
 Bayonne Assn. v. Williams, 43 Atl. 669; 14 Dick. 617; 
 
 Bayonne Assn. v. Williams, 42 Atl. 172 ; 12 Dick. 503 ; 
 
 Bd. of Education v. Duparquet, 5 Dick. 234; 
 
 Bowlhy V. Willison, 11 N. J. L. J. 42; 
 
 Burnett v. Jersey City, 4 Stew. 341; 
 
 Bechhard v. Rudolph, 2 Kob. 315; Id. 740; 
 
 Chosen Freeholders v. Lindsley, 14 Stew. 189; 
 
 Donnelly v. Johnes, 44 Atl. 180; 
 
 Dunn V. Stohern, 16 Stew. 401; 
 
 Daly V. Somers Co., 4 Kob. 343; 1 Buch. 307; 
 
 Evans v. Lower, 1 Kob. 232; 
 
 Edge V. McClay, 64 Atl. 969; 
 
 Flaherty v. Atlantic Co., 44 Atl. 186; 
 
 Freedman v. Sandknop, 8 Dick. 243; 
 
 Fehling v. Goings, 1 Rob. 375; 
 
 Foster v. Rudderow, 3 Atl. 694; 
 
 Leary v. Lamont, 42 Atl. 97; 
 
 McNab. etc., Co. v. Paterson, etc., Co.. 1 Buch. 133; 2 Id. 929; 
 
 Smith V. Dodge, etc., Co., 44 Atl. 639; 
 
 South End Co. V. Harden, 52 Atl. 1127; 
 
 St. Peters Church v. Van Note, 21 Dick. 78; 
 
 Turner v. Miller, 61 Atl. 741; 
 
 Veitch V. Clark, 1 Kob. 57; 
 
 Weaver v. Atlantic Co., 40 Atl. 858; 
 
 Willi<ims V. Bradford, 21 Atl. 331. 
 
 Proceedings where contractor disputes the employe's or 
 materialman's claim. Notice to claimant ; suit to establish 
 claim; limitation. 
 
 rJ 4. When a notice or notices shall be served upon such 
 r. N o^\'ner or owners by any journeyman, laborer or material- 
 ^^ man, under the third section of this act, and notice thereof 
 ' shall have l^een given by such owner or owners to the mas- 
 ter workman or "contractor, as required by said section, and 
 said master workman or contractor shall, within five days
 
 Revision of 1898, S 5. 69 
 
 after receiving the notice aforesaid, notify in writing the 
 journeyman, laborer or person who has furnished mate- 
 rials that he disputes his or their claim, and requests him 
 or them to establish the same by judgment, the owner shall 
 not pay the claim until it is so established ;^ {a\nd the jaiir- 
 neymmi, laborer or person who< has furnished materials 
 shall forfeit all right to the money which may he due or 
 may grow due t& the conivactor from the owtier, unless he 
 shall begin suit to estohlish his clavm a\gainst the contractor 
 within sixty days from the service by the contractor upon 
 said journeyman, laborer or person who has furnished ma- 
 terials of the notice aforesaidY ; provided, the master work- 
 man or contractor shall notifv the owner in w^riting that he 
 has given the aforesaid notice to said journeyman, laborer 
 or materialman. 
 
 1899, p. 31,8, § 1; 1898, p. 538, § 4; 1895, p. 313, § 3. 
 
 t 
 
 The amendment of 1899 inserts the words in parenthesis ( — ). 
 
 The act of 3895 was the first to make any provision on this 
 subject, and this was re-enacted by the act of 1898 without change. 
 The amendment of the previous section, by the act of 1905, p. 
 311, omitted, as is thereunder noted, to make the necessary cor- 
 responding changes in this section. It should, of course, be 
 amended so as to make its provisions applicable to all who may 
 be claimants under such preceding section. 
 
 1. Such judgment, by the claimant against the builder, when 
 obtained, will not be res adjudicate, as against the owner. It may 
 be given in evidence, in the claimant's action at law against the 
 owner, upon his stop notice, to show, prima facie, the amount 
 due; but it will not prevent the owner from pleading and prov- 
 ing, if he can, that the claim is in fact excessive. Taylor v. 
 Wahl, 40 Vroom 471. 
 
 Costs recovered in this suit are not a lien on the fund. Ander- 
 son V. Huff, 4 Dick. 349. 
 
 2. The claimant, presumably, cannot escape the consequence^^ of 
 this clause, by serving a new stop notice after he is notified to 
 bring his suit. Sewall v. Hawkins, 17 Vroom 161. 
 
 Owner's liability in case he makes advance payments. 
 Inchoate lien, of employes and materialmen, on the con- 
 tract price. 
 
 5. If the owner or owners of any building or other prop- 
 erty which, by this act, is made the subject of liens for or 
 toward the construction, altering, repair or improvement of
 
 70 Mechanics Lien Law. 
 
 wliicli labor or services have been performed or materials 
 furnished by contract, duly filed, shall, for the purpose of 
 avoiding the provisions of this act, or in advance of the terms 
 of such contract, pay any money oi' other valuable thing on 
 such contract, and the amount still due to the contractor, 
 after such payment has been made, shall be insufficient to 
 satisfy the notices served in conformity with the provisions 
 of this act, such owner or owners shall be liable in the same 
 manner as if no such payment had been made. 
 
 1898, p. 538, § 5; 1895, p. SIS, § 5. 
 
 The act of 1898 re-enacts without change the act of 1895, which 
 was the first provision of this nature. This section and the next 
 succeeding- one are considered together in the notes under the 
 latter. 
 
 Wages made a preferred claim, ^lether on lien or under 
 stop notice. Preferences of stop notices over orders. 
 
 6. In all cases journeymen or laborers shall have priority 
 and preference over any employers of labor, contractors- or 
 materialmen for the payment of wages, without reference to 
 the date when said journeymen or laborers shall have filed 
 the lien or served the notices provided for in this act; 
 {laborers or maiermlmen giving notices in accou'dance vjith 
 the provision's of the third section- shall have priority and pre- 
 ference in the disposition of the moneys due and to grow d^ie 
 upmi the contract over mny persons claiming said mmieys or 
 any part thereof by reason of order or orders thereon or asr- 
 signment thereof). 
 
 1898, p. 5S8, § 6; 1895, p. SIS, § 7. 
 
 The words in parenthesis ( — ) were inserted by the revision of 
 1898, otherwise the section is the same as it stood in the act of 
 1895, which was the first provision of this nature. 
 
 THE LAW. PRIOR TO THE ENACTMENT OF THE 
 EOREGOING SECTIONS, on the question of the respective 
 priorities of various claimants to the fund in the owner's hands, 
 may be briefly reviewed as follows: 
 
 As already stated, under section 3, note 3, it was settled that a 
 stop notice operated as well on moneys to grow due as on 
 moneys that had become due at the time of its service. But al- 
 though this was settled, and although, as said, in Wightman v. 
 Brenner, 11 C. E. Gr. 489, the claimant under a stop notice 
 had a ri^ht of recourse against the fund, as well as a right of
 
 Revision of 1898, § 6. Tl 
 
 action against the owner; it was held that he had no lien on the 
 fund, prior to the service of his notice, and that, therefore, the 
 contractor was at liberty, by order or assignment, to dispose of 
 the moneys, secured to him by the contract; and that, to the ex- 
 tent that he did this, before any stop notice was served, the fund, 
 upon which such notice could operate, was lawfully depleted, in 
 respect of what was to grow due as well as of what had become 
 due to him, on the contract. Craig v. Smith, 8 Vroom 549 ; Shan- 
 non V. Hohoken, 10 Stew. 123; Kirtland v. Moore, 13 Stew. 106; 
 Burnett v. Jersey City, 4 Stew. 341; Chosen Freeholders v. Linds- 
 ley, 14 Stew. 189; Lanigan v. Bradley, Co., 5 Dick. 201; Board 
 of Education v. Duparquet, 5 Dick. 234; Mayer v. Mutchler, 21 
 Vroom 162; Hall v. Baldwin, 18 Stew. 858; Supt. v. Heath, 2 
 McCart. 22. 
 
 But, as the fund was subject to the disposal of the contractor, 
 so it was also subject to the attack of his creditors, with this 
 difference — that their attack, by supplementary proceedings (and 
 the same is probably true of an attack by attachment) could only 
 reach moneys which had become due to the contractor at the 
 time of such attack. Willison r. Salmon, 18 Stew. 257. As 
 we have already noticed (§ 2, note 2), a general creditor of the 
 contractor, holding an order, was held to stand the same as an 
 assignee wlio had furnished him with labor and materials; and, 
 from the time of the decision of Superintendent v. Heath, 2 Mc- 
 Cart. 22, it was held, that holders of orders, and claimants under 
 stop notice, must each be paid out of the fund, so far as it was 
 subject to their claims, in the order of their priorities and not 
 pro rata. 
 
 THE LAW UNDEE THE ENACTMENT OF 1895. 
 
 The iirst case to arise, after the enactment of §5, was, Binns v. 
 Slingerland, 10 Dick. 55; s. c, overruled on appeal, 11 Dick. 413. 
 In this case, the Court of Errors held, that, by proihibiting the 
 owner from making any payment in advance of the terms of the 
 contract, the legislature evinced an intention to give, to laborers 
 and maierialmeii, an inchoate lien upon the contract liability of 
 the owner, until that liability matures, according to the terms 
 of the contract; that such inchoate lien becomes i)erfected, on 
 the service of a stop notice before such liability matures, but ex- 
 pires, on such maturity, if no such notice is given; and that, 
 therefore, v/orkmen and materialmen who sei-ve stop notices in 
 season, have priority over persons to whom the conti'actor may 
 have assigned, before their notices were served. 
 
 Shortly after this decision, the case of Leary v. Lamont, 42 Atl. 
 K. 97, came before Vice Chancellor Emery, and the case of Bay- 
 onne, etc., Assn. v. Williams, 42 Atl. R. 172, before Vice Chancel- 
 lor Pitney. Both Vice Chancellors held that, inasmuch as the 
 statute, as constructed in Slingerland v. Binns. gave to claimants 
 under stop notices, an inchoate lien, in advance of their notices, 
 their priorities^ inter se, could not be deteraiined, with regard 
 to the dates on which such notices' were sei*ved; and that, there- 
 fore, they must share pro rata in the fmid. This ruling was re- 
 versed by the Court of Errors, in Bayonne, etc., Assn. v. Williams,
 
 72 Mechanics Lien Law. 
 
 43 Atl, K. 669, and it was established, that such claimants, as 
 between themselves, must be paid according to the priority, in 
 service, of their notices, and not pro rata. 
 
 It had also been held, by Vice Chancellor Pitney, that an order 
 given by the contractor to a laborer or materialman, and pre- 
 sented to the owner was as effectual, in equity, as a stop notice 
 could be, in i)erfecting the inchoate lieu of such claimant; but this 
 too was overruled by the Court of Errors which held that, on the 
 contrary, the inchoate lien can only be perfected by the statutory 
 method of demand, refusal, and service of notice. 
 
 In the meanwhile, V. C. Grey had decided, in Weaver v. Atlan- 
 tic, etc., Co., 40 Atl. E. 858, that the inchoate lien, given by § 5, 
 arose only in cases where a contract had been duly filed. 
 
 The next case, Donnelly v. Johties, 4A Atl. K. 180, also came be- 
 fore V. C. Grey, for decision, and, after a careful review of the 
 decisions of the Court of Errors above referred to, he held, that 
 as each installment of the contract price becomes due, it is liable, 
 first, to claimants who, prior to that time, have served stop no- 
 tices. If it more than meets these notices, the residue is at the 
 disposal of the contractor, and liable to the attack of his credi- 
 tors; if it is insufficient to satisfy the stop notices, they will 
 operate, so far as unsatisfied, on the next installment, and so on; 
 but no stop notice can operate, as a prefereoice, on any part of 
 the owner's liability which has matured before such notice is 
 served; because the inchoate lien, quoad such matured liability, 
 is lost unless such notice is served on or before the day of such 
 maturity. 
 
 In all the cases above cited, the ruling in Binns v. SlingerUmd, 
 was the basis of decision; and the statement, that the inchoate 
 lien, given by virtue of the act of 1895, exists vuitil the ma- 
 turity of the owner's liability, but expires on such maturity, if 
 not perfected by notice before then given, a statement which was 
 plainly obiter in the Binns case, was more or less explicitly adopted 
 in each of them, as in the DomieUy case, as a precisely correct 
 •statement. The same may be said of the succeeding decisions in 
 Flaherty v. Atlantic, etc., Co., 44 Atl. 186; Smith v. Dodge, etc 
 Co., 44 Atl. 639; Persoti v. Herring, 44 Atl. 753, the last named 
 being a decision of the Court of Errors and Appeals. That such 
 was, therefore, the correct exposition of the law, as it then stood, 
 may be taken as settled, beyond any question, by those decisions; 
 air of which, however, were in cases arising before the revision 
 
 £ "1 RQft 
 
 THE LAW SINCE THE REVISION OF 1898. By this re- 
 vision of 1898 the concluding clause of § 6, as it now stands, 
 was, for the first time, added, and that modification of the 
 statute might be deemed to have a material effect m modifica- 
 tion of the conclusion reached in Binns v. Slingerland and the 
 cases above cited, in respect of the duration of the inchoate lien 
 of claimants entitled to give a stop notice. The decisions m 
 cases arising since the revision of 1898, so far as concerns the 
 point in question, do not, however, give that clause any consider- 
 ation Thev do not even refer to it, or mention it, and their rea-
 
 Revision of 1898, § 6. 73 
 
 soning plainly is based upon the theory that the fifth 
 section of the statute is the only provision in it which confers 
 any such inchoate lien. They, therefore, adopt the dictum of the 
 Binns case, as the correct statement of such lien's duration, as 
 plainly they should do, if that theory is true. 
 
 The cases referred to are Blauvelt v. Fuller, 48 Atl. 538; and 
 Taylor v. Reed, 52 Atl. 579, both decided in the Supreme Court; 
 and Edge v. McClay, 64 Atl. 969, decided in the Court of Chan- 
 cery. Blauvelt v. Fuller is not really in point, in any way, upon 
 the matter in question. There the owner's liability matured on 
 August 28, 1899, and he then paid the builder all that was due 
 him except the sum of $530, having been previously served with 
 a materialman's stop notice for $500. Blauvelt's stop notice for 
 $927.84 was served September 1, 1899. Upon any possible theory, 
 as to the duration of the inchoate lien, the fund in the owner's 
 hands, at the time his stop notice was served, was only $530, and 
 $500 of this was subject to the prior right of the previous stop 
 notice. It was, therefore, held that his notice reached only the $30. 
 The opinion does not refer, and should not have referred either 
 to the Binns case or to §§ 5 or 6. 
 
 In Taylor v. Reed, the filed contract provided for a final pay- 
 ment or $1,500. The owner paid the builder $1,000 of this in 
 advance of its due date. After the due date the plaintiif gave 
 his notice, but it was held that the $1,000 payment was good against 
 him. This case is in point. 
 
 In Edge v. McClaaj, the owner's right to discharge his debt to 
 the builder matured on January 2, 1906. Claimant Horner gave 
 his notice on January 3, 1906. It was held that other defend- 
 ants claiming by assignments given by the builder before Jan- 
 uary 2, 1906, took the fund, to the exclusion of Horner. This 
 case is also in point. 
 
 The case of Kreutz v. Cramer, 19 Dick. 648, should here be 
 mentioned. In that case an installment of $960 matured on 
 May 25, 1902. On May 27, 1902, Cramer served his notice, while 
 such matured installment was still unpaid by the owner, and 
 unassigned by the builder. Upon the contention that Cramer's 
 notice did not reach this installment, because, as ruled in the 
 Binns case, his inchoate lien had expired on May 25, 1902, it 
 was held that the expiration of the inchoate lien left the money 
 still liable to be impounded by a notice put in before it has in 
 fact been paid to, or assigned by, the builder; and that the fact 
 that there are still other moneys yet to grow due, which may suf- 
 fice to meet the notice put in, does not enable the owner to dis- 
 regard such notice. 
 
 In Taylor v. Reed and Edge v. McClay, as is above stated, 
 it is apparently assumed that no inchoate lien is given by the 
 statute, unless by its fifth section. Is that assumption correct? 
 The concluding clause of § 6 says— that "laborers or material- 
 men giving notices, etc., shall have priority and preference in 
 the disposition of the moneys DUE and to grow due upon the 
 contract over any persons claiming said moneys or any part 
 thereof by reason of order or orders thereon or assignment there-
 
 T4 Mechanics Lien Law. 
 
 of." Now it would seem quite plain that, if § 'j evinces a legisla- 
 tive intent to give laborers and materialmen an inchoate lien, by 
 its prohibition of advance payments; this clause of § 6 evinces 
 a similar intent just as obviously by giving such claimants the 
 priority and preference which it does. It is suggested, there- 
 fore, that that is a question which should receive deliberate con- 
 sideration, and that if an inchoate lien is given by this clause, 
 the duration of such lien must also be a qviestion to be determined 
 by a careful consideration of its terms, in the light of their ob- 
 vious legislative purpose. Upon that matter the following sug- 
 gestions are appended: 
 
 Prior to the revision of 1898, it was plain that the inchoate 
 lien recognized in the Bin us case could only have been posited up- 
 on the inference there drawn from the prohibition of advance pay- 
 ments contained in § 5. It was, therefore, as the law then stood, 
 a proper, if not a necessary inference also, that the duration of 
 such inchoate lien must be co-extensive with the period within 
 which such prohibition operated, and must cease when it ceased, 
 that is, with the maturity of the owner's liability. But now, if 
 § 6 also gives laborers and materialmen an inchoate lien, by giving 
 them "priority and preference in the disposition of the moneys 
 due and to grow due, etc.." over persons claiming by order or as- 
 sigmiient; the duration of such inchoate lien must be determined 
 by those terms, and the purpose which the legislature had in view. 
 It would seem, then, to follow that such inchoate lien continues, 
 as against assignees or holders of orders, and, therefore, as 
 against the builder's own demand for payment, beyond the 
 mere arrival of the time when the owner may rightfully dis- 
 charge his liability to the builder, and until he has actually exer- 
 cised that right. That is to say, the maturing of the contract may 
 be deemed to confer upon the owner the right to pay the builder 
 without enabling the latter to demand that he do so, until he 
 can show that there are no laborers or materialmen who may 
 make claim. 
 
 In this view, the inchoate lien of such claimants would be liable 
 to be defeated by the owner's exercise of his right to pay before 
 a stop notice came in, but until so defeated it would continue 
 to exist, as against the builder or his assignees. 
 
 The assertion of such a purpose is not an assertion of some- 
 thing which it is impossible or improbable that the legislature 
 could intend. On the contrary, the legislature has heretofore 
 (by the acts of 1890, p. 479, and 1892, p. 358, both repealed in 
 1895) tried the exi)ermient of protecting claimants by the similar 
 expedient of forbidding an owner to discharge his liability unless 
 he first saw that all possible claimants were satisfied. 
 
 In the theory above advanced, the right of the owner to dis- 
 charge his liability, by payment after its maturity to the builder 
 or his assignee, before any stop notice intervened, would be based 
 upon the fact that the statute only forbids Mm to make any 
 advance payment. On the other hand, the denial of any right, 
 on the part of the builder, to demand the payment of the money 
 earned, so long as there were any unsatisfied laborers or material-
 
 Revision of 1898, § 6. 75 
 
 men, would be rested on the express words of the statute, and the 
 reasonable inference therefrom, that the statute intends that he 
 himself may not demand what it forbids him to give another the 
 right to demand. 
 
 From this theory it would result that any orders or assign- 
 ments given by the builder at any time, but not in fact paid by 
 the owner after his right to discharge his liability has accrued, 
 and before a stop notice intervenes, would be defeated by such 
 a notice coming in. 
 
 It would also be in harmony with this theory, to hold, that 
 the owner's right to discharge his liability by payment made af- 
 ter such right has accrued, could not relieve him from the con- 
 sequences of an advance payment which § 5 denounces; and that 
 he would be precluded from pleading or proving in defense, as 
 against any laborer or materialman, any payment that he had 
 made so in advance. In short, that any such payment, in its 
 legal effect in respect of his liability to a claimant, shall be just 
 what the statute says — "the same as if no such payment had 
 been made;" just as a Sunday bargain is the same as though 
 it had never happened. 
 
 It is hardly necessary to say that the views thus suggested are 
 not presented as exhausting, by any means, all that may be urged, 
 pro or contra, in the matter; but it is thought that there is a 
 real question for the courts to consider in the premises. The 
 cardinal thing that should be borne in mind, as it seems to the 
 writer, is, that when the legislature says that laborers and ma- 
 terialmen shall have priority and preference as to the moneys 
 due, it means that they shall have all that is necessary, in order 
 to secure to them such priority and preference. 
 
 Attention is also directed to the case of Adams v. Wells, 19 
 Dick. 211. In this case the final payment matured on April 7, 
 1902. Defendant Beatty had an assignment dated January 20, 
 1902, of which the owner had notice on April 8, 1902. After 
 that other defendant claimants served stop notices; and, on in- 
 terpleader, contended that they were entitled to preference over 
 Beatty, as being within the provision of the last clause of § 6. 
 Without determining whether that contention wovdd have been 
 good if the claimants had been within the class of persons there 
 mentioned, and without intimating that it would not have been, 
 the decision was that the claimants were not within such class, 
 because they were sub-contractors. 
 
 In this case, as in Donnelly v. Johnes, 44 Atl. 180, it was held 
 that persons claiming preference, under § 6, must show that they 
 are within the specified class, and that it is not to be assumed, 
 without proof, that they are. 
 
 It may be that, in Taylor v. Reed and Edge v. McClay, the 
 claimants might have been precludied on similar grounds. 
 
 APPORTIONING THE FUND. There must, of course, be 
 a fund to to be apportioned. That is, the claimants can have 
 recourse to that only which the contractor, but for them, would 
 be entitled to receive from the owner. If there is such a fund, 
 its apportionment must be determined by the order in which the
 
 76 Mechanics Lien Law. 
 
 various claimants have established a legal lien upon it. Kow there 
 is nothing in the statute which gives any other claimant a prefer- 
 ence over a creditor of the contractor, who has established a lien 
 by process of law; and it is a possibility, that an attaching credi- 
 tor might attach the fund, the day after the contract had been 
 completed and the price had become due, and before any stop 
 notice had been served, or after some such notices and before 
 others. In such a case, we think that the attaching creditor would 
 be entitled, on any theory as to the effect of § 6, to have his claim 
 satisfied according to the respective priority of the notices and of 
 his attachment. Eliminating all such liens from our present con- 
 sideration, the application of the fund may differ," according as 
 the. effect of § 6 is held the one way or the other. And, 
 
 First, 
 On the assumption that the preferences, given by § 6, affect, 
 as well moneys due before notices are served, as moneys to grow 
 due thereafter; the wJiole fund must then be appropriated as fol- 
 lows, viz. : • X 1, • 
 
 1. To the claims of wage workers, in the order of service of then- 
 notices ; 
 
 2. The residue then left, to all other claimants by stop notice, in 
 the order of service of their notices; 
 
 3. The residue then left, to the holders of orders or assign- 
 ments given by the contractor ; and 
 
 4. The residue then left, to the contractor. 
 
 Second, 
 On the assumption that the preferences, given by § 6, affect only 
 the moneys to grow due when notice is served, so much of the fund 
 only as became due on or after the service of a notice or notices, 
 must be applied, as above indicated, to that notice, or those notices, 
 according to their preferences and priority of service; and the 
 residue of the whole fund must be appropriated: 
 
 1. To the holders of orders, or assignments, and to unsatisfied 
 claimants imder stop notices, in the order of time of each one's 
 order, assignment, or notice; and 
 
 2. The residue, if any, to the contractor. 
 
 AN ORDER OBTAINED BY A FRAUD practised upon the 
 builder by the holder may be attacked by claimants under stop 
 notice. English v. Warren, 20 Dick. 30. , . , , 
 
 ALTERATION OF CONTRACT TERMS. As the inchoate 
 lien of the laborers or materialmen precludes the contractor from 
 making an effective disposition, as against them, of the moneys 
 secured to him by the contract, by direct order of assignment; 
 so it must necessarily limit his power to affect their interests det- 
 rimentally in any indirect way. Accordingly, m Smith v. Dodge 
 & Bliss Co., 44 Atl. R. 639, the Court of Errors held, that, the 
 terms of the contract could not be altered, by an agreenient be- 
 tween the contractor and the owner made after it was hied, so 
 as to impair or defeat the claims of materialmen or laborers, as
 
 Eevisioj^ of 1898, § 7. 77 
 
 by reducing the contract price; unless the contract as filed au- 
 thorized and provided for such an alteration. 
 
 So in South End Imp. Co. v. Harden, 52 Atl. 1127, it was held 
 that when the contract provides that the parties might agree to 
 alterations; and they did agree thereafter upon such, such agree- 
 ment was a new contract and the work thereunder not in pursu- 
 ance of the original contract. See notes to form of building agree- 
 ment post. 
 
 In Daly v. Somers Co.. 4 Robinson, 343; s. e. aff. 1 Buch. 
 307, it was held that the owner cannot safely waive the produc- 
 tion of the architect's certificate; as he may become liable to 
 claimants, if he pays without first obtaining it, when it is not 
 unreasonably or fraudulently withheld by the architect. 
 
 In Veitch v. Clark, 1 Rob. 57, it is held that the owner may 
 safely pay upon the architect's certificate, although in some slight 
 particulars there is work still undone; when the owner and archi- 
 test both act in good faith, and the undone work is such as it is 
 customary to leave undone, to aid the progress of the work. 
 
 Land not liable to lien unless building" be erected with 
 owner's consent in -writing, acknowledged and recorded. 
 
 7. If any building be erected bj a tenant or other person 
 than the owner of the land,^ then only the building and the 
 estate of such tenant or other person so erecting such build- 
 ing,^ shall be subject to the lien created by this act and the 
 other provisions thereof, unless sucli building be erected by 
 the consent of the owner of such lands in writing,^ which 
 writing may be acknowledged or proved and recorded,* as 
 deeds are, and when so acknowledged or proved and recorded, 
 the record thereof and copies of the same, duly certified, shall 
 be evidence in like manner. 
 
 1898, p. 538, § 7; 1853, p. Jf37, § ^; Rev. 1871^, § 4. 
 
 This section has remained unchanged in the above form since 
 its enactment as § 4 of the act of 1853. 
 
 1. A building is not erected by the owner of the land when he 
 allows his son to contract, in the latter's name, for its erection, 
 and to superintend its construction, upon the former's land; even 
 although the father also furnishes the money for the work. Bah- 
 hit V. Condon, 3 Dutch. 154; but a building is erected by the 
 owner when he orally employs another to build it, American Brich 
 Co. V. Drinhhouse, 30 Vroom 462; or where he contracts in his 
 own name, in writing, for its erection, Young v. Wilson, 15 Vroom 
 161; Erdman v. Moore, 29 Vroom 445; though such contract be 
 not filed. Brewing Company v. Donnelly, 30 Vroom 48; or where 
 the contract is made by the owner's agent in the latter's name only.
 
 78 Mechanics Lien Law. 
 
 Earle v. Willetts, 27 Vroom 334, and see § 2 supra, note 1, own- 
 er's signature to contract. 
 
 2. THE TENANT'S SUKRENDER of his term, and abandon- 
 ment of the building, erected on the land, to the landlord, cannot 
 defeat the lien of one who has given work or materials to the con- 
 struction of the building. Hagan v. Gashill, 15 Stew. 215. The 
 building in this case was a pier, and the lessee's estate was a 
 ten year terai in the shore front. 
 
 If a claimant seeks to enforce a lien against the estate of the 
 tenant, he must, in his lien claim and suit, describe him, and 
 not the lessor, as the owner. Corcoran v. Jones, 12 N. J. L. J. 38. 
 
 A LICENSEE (the license being revocable) has no interest or 
 estate in the land which can be subjected to a mechanic's lien. 
 Wm. H. Atkimon Co. v. Shields Co., 72 Atl, 81. See post, under 
 § 24, Form of Judgrnent. 
 
 A litigation under this clause may require the separate valua- 
 tion of the land and fitxures thereon. Central R. R. C. v. State 
 Board, 67 Atl. 672, at p. 685. 
 
 3. THE CONSENT REQUIRED by the statute must be such 
 as clearly shows that the owner intended to subject his lands to 
 a possible lien for the contemplated work. Associates v. Davison, 5 
 Dutch. 415; Hervey v. Gay, 13 Vroom 168, reversing s. c, 12 
 Vroom 39; and approving s. c, 1 N. J. L. J. 51; Macl-mtosh v. 
 Thurston, 10 C. E. Gr. 242; and so a lease w^liich authorizes the 
 tenant to make repairs or alterations at his owii expense, or a 
 similar permission in writing, not incorporated in the lease, is 
 not the statutory consent. Hervey v. Gay, supra; Dey. v. Davis, 
 18 N. J. L. J. 301. 
 
 It was held by Vice Chancellor Bird, in Leon-ard v. Cook, 20 Atl. 
 855, that the lien claims of mechanics and others for erecting a 
 building for a vendee in possession before any deed was delivered, 
 but with the vendor's knowledge, is superior to the claim of the 
 vendor, who afterwards delivered the deed, for the unpaid price 
 of the land. 
 
 A CONTRACT TO CONVEY lands does not amount to the 
 statutory consent, to the erection of buildings for the vendee. 
 National Bank, etc., v. Sprague, 5 C. E. Gr. 13; Gihls v. Grant, 
 2 Stew. 420; even although the vendor agrees to loan the vendee 
 the money therefor. Associates, etc., v. Davison, supra; Mackin- 
 tosh V. Thurston, supra; nor does the vendor's statement, to the 
 persons who are erecting the building for the vendee — that they 
 will be perfectly safe in going on with the work — amount to such 
 consent. Strong v. Van Deursen, 8 C. E. Gr. 369. 
 
 A LEASE AND CONTRACT to convey are not the necessary 
 consent. Currier v. Cummings, 13 Stew. 145. 
 
 A FICTITIOUS CONTRACT, which, on that account, by be- 
 ing filed, does not protect the land from lien, is good as a con- 
 sent on the part of the owner who signed it. Young v. Wilmn, 
 
 supra. . , 
 
 PERSONS NON COMPOS. The land of a person, in law (or
 
 Revision of 1898, § 8. 79 
 
 in fact?), incapable of giving a consent cannot be liable to a lien 
 for a building erected uix)n it; as, for example, in the case of a 
 minor, Hall v. Acken, 18 Vroom 340. As to married women see, 
 Washburn v. Burns, 5 Vroom 18; and post, section 13. 
 
 4. The consent does not have to be acknowledged or recorded; 
 the statute does not mean, must or shall be acknowledged, etc. Gay 
 V. Smith, 1 N. J. L. J. 51; s. c. approved, 12 Vroom 39. See 
 also. Young v. Wilson, supra; Erdman v. Moore, 29 Vroom 445. 
 
 The word, building, defined (to include, an addition to a 
 former building, any fixed machinery or gearing, or fixtures 
 for manufacturing purposes). Fixtures for manufacturing 
 purposes, defined. 
 
 8. Any addition^ erected to a former building-, and any 
 fixed machinery or g-earing, or other fixtures for manufactur- 
 ing purjjoses,^ shall be considered a building for the purposes 
 of this act. The words, ''fixtures for manufacturing purpo- 
 ses," as used in this section, shall be construed to include any 
 building erection, or construction of whatever description, 
 attached or annexed, or intended to be attached or annexed, to 
 any land or tenement, and designed to be used in the building 
 or repairing of vessels, whether the same be permanently 
 attached to the freehold, or so built as to be removed from 
 place to place, and only temporarily attached to the land and 
 whether the same he intended and designed for use on land 
 or water.'*^ 
 
 1898, p. 538, § 8; 1853, p. 437, § 5; 1860, p. 689; 
 Rev. 187Jf, §§ 5, 6. 
 
 The act of 1853, § 5, read— 
 
 "Any addition erected to a foi-mer building, and any fixed ma- 
 chinery, or gearing, or other fixtures for manufacturing purposes 
 shall be considered a building for the purposes of this act; but 
 no building shall be subject to the provisions of this act, for any 
 debt contracted for (repairs done thereto or) alterations made 
 therein." The Revision of 1874, § 5, omitted the words which 
 we have enclosed in parenthesis, but left the section otherwise un- 
 changed. 
 
 The Revision of 1898, it will b© noticed, omits the entire con- 
 eluding clause, and then joins into the same section the definition 
 of the words, fixtures for manufacturing purposes, which was first 
 enacted in the act of 1860, p. 689, and stood as § 6 in the 
 Revision of 1874. 
 
 1. AN ADDITION TO A BUILDING, means a lateral addi- 
 tion, one which occupies land without the limits of the original
 
 80 Mechanics Lien Law. 
 
 building; but adding to its height, or depth, or changing its in- 
 terior structure, is an alteration, not an addition. Peirine v. 
 Pa/rJcer, 5 Vrooni 352; Updike v. Shillman, 3 Dutch. 131; and so, 
 a piazza is an addition, WhitenacJc v. Noe, 3 Stock. 321, 413; but 
 a bay window is not (?), nor a new roof, Perrine v. Parker^ supra; 
 nor another story, Updike v. Skillman, supra. 
 
 2. A BRICK MAKING MACHINE, when permanently added 
 to the freehold, is a fixtui'e for manufacturing purposes, Ameri- 
 can Bnck Co. V. Drinkhouse, 30 Vroom 462; so is a WOODEN 
 FLUME, to lead wat^r from the dam to the mill wheel inside the 
 mill, Edwards v. Derrickson, 4 Dutch. 39; s. c, 5 Dutch, 468; so 
 are the POLES, WIRES, INSULATORS, etc., of an electric 
 power company, erected for transferring power. Hughes v. Lam- 
 hertville, etc., Co., 8 Dick. 435. 
 
 MANUFACTURING PURPOSES. The production of elec- 
 tricity for use on a trolley road is a manufacturing purpose, within 
 this clause: and ENGINES, DYNAMOS, and other connected ap- 
 pliances for the production and control of electric power, set up 
 in a power house for such use are fixtures under this section, if 
 they are not indeed part of the realty anyway. Bates Co. v. Tren- 
 ton Co., 41 Vroom 684. 
 
 ENGINES, PUMPS, BLOWERS, STEAM BOILERS, 
 GEARING, BELTING, EMERY WHEELS, MELTING FUR- 
 NACES, GRINDING MILL, and SMOKE STACKS, placed for 
 use in the building of a steel casting company, are fixtures. Cur- 
 rier V. Cummings, 13 Stew. 145. 
 
 A BORING MILL, A BORING AND TURNING MILL, AN 
 ENGINE LATHE, A FEED DRILL, A KEY SETTER, AND 
 A COUNTER SHAFT, delivered to a water wheel manufactur- 
 ing company, to be placed in its factory, are fixtures for manu- 
 facturing purposes, as soon as so delivered. Campbell v. Taylor, 
 etc., Co.. 51 Atl. R. 723, reversing s. c, 49 Atl. R. 1119. 
 
 COPPER ROLLS, for print cloth machines, are not fixtures 
 for manufacturing purposes. Griggs v. Stone, 22 Vroom 549. 
 
 MOVABLE MACHINES, not indispensable to the enjoyment 
 of the freehold, nor intended to be permanently annexed to, and 
 made part of the realty, are not fixtures. Rogers v. Brokaw, infra ; 
 Case V. Arnett, 11 C. E. Gr. 459; s. c, 2 Stew. 309. 
 
 THE TRUE CRITERION OF A FIXTURE is, the united 
 application of the following requisites: 1. Actual annexation to 
 the really, or something appurtenant thereto. 2. Adaptation to 
 the use to which that part of the realty, to which it is connected, 
 is appropriated. 3. The intention, of the party making the an- 
 nexation, to make thereby a permanent accession to the free- 
 hold. Of these three tests pre-eminence is given to the question 
 of intention. Erdman v. Moore, 29 Vroom 445; Brearley v. Cox, 
 4 Zab. 289; Quinty v. Manhattan, etc., Co., 9 0. E. Gr. 261; 
 Rogers v. Brokaw, 10 C. E. Gr. 496. But under this section, the 
 determination is one of statutory construction rather than of the 
 law of fixtures and the test is whether the tools were not mere 
 movable tools, but were intended to be used as a permanent part
 
 Revision of 1898, § 10. 81 
 
 if the plaut. Camphell v. Taylor Co.. 19 Dick. 344; rev. s. c, 
 17 Dick. 307. 
 
 DOUBTFUL CASES. Whenever machinery is of such a 
 character as to be susceptible of the common law lien (manual 
 transmission), doubts, as to whether it is also subject to statutory 
 lien, should be resolved in the negative. Griggs v. Stone, 22 
 Vroom 549. 
 
 3. Until this enactment, a floating dock could not be con- 
 sidered to be a fixture for manufacturing purposes. Coddington 
 V. Beehe, 2 Vroom 477. 
 
 Mills and factories and their curtilages liable to lien for 
 repairs to fixed machinery, etc. 
 
 9. The lien given bv this act is hereby extended to all 
 mills and manufactories, of whatever description, within 
 this state, and to the lots of land or curtilages whereon the 
 same are erected, for all debts contracted by the o"^^^ler or 
 owners thereof, or by any other person with the consent 
 of such owner or owners, in writing, for work done or ma- 
 terials furnished for or about the repairing of any fixed ma- 
 chinery, or gearing, or other fixtures for manufacturing pur- 
 poses, on the same. 
 
 189S, p. 538, § 9; 1855, p. 211; Rev. 187 J^, § 7. 
 
 This section remains unchanged as first enacted in 1855 and 
 taken into the Eevision of 1874 as § 7. 
 AS TO FIXED MACHINERY, etc., see supra, § 8, and notes 
 FKTOEITY OF BONA FIDE PURCHASERS AND MORT- 
 GAGEES. Quaere. Do the provisos in § 10 apply also to claims 
 under this section. By the definition of § 8, it would seem that 
 all the claims provided for in this section (9) are also provided 
 for in § 10. See American Brick Co. v. DrinJchouse, 30 Vroom 
 462, in which it was expressly held, that the alteration of fixed 
 machinery was the alteration of a building, within the meaning 
 of the act of 1883. p. 24; and see also, note to § 10 below. 
 
 Building and curtilage liable to lien for repairs or altera- 
 tions. Prior encumbrancers and purchasers. 
 
 10. The lien given by this act shall be and is hereby 
 extended to all buildings of whatever description (erected or 
 to be erected) in this state and the lots or curtilages whereon 
 the same are erected, for all debts contracted by the owners 
 thereof, or by any other person with the consent of the 
 owner or owners in writing,^ for work done or materials fur- 
 
 6
 
 82 Mechanics Lien Law. 
 
 nished in and for the repairing (or alteration) of any such 
 building;^ ^p'ovided, hoivever, that said lien shall not be val- 
 id against a bona fide purchaser or mortgagee before said lien 
 is filed in the office of the clerk of the county (in which said 
 lot or curtilage is situate f and provided further, that work 
 done or materials fwmished under contract in and for such 
 repairs or alterations shall he liable to the said conti'actor 
 alone in the manner p7vmded hy the second section of this 
 act). 
 
 1898, p. 5S8, § 10; 1859, p. W; Bev. 1874, § 8; 1883, 
 
 The act of 1859, p. 451, was substantially the same as the above 
 section, omitting the words in parentheses. It also had, at the 
 place indicated by the asterisk, the words — "provided the agree- 
 ment be made a matter of record in the office of the clerk of the 
 county." The Eevision of 1874. in § 8, embodied this act of 1859, 
 substantially word for word, except that it omitted the proviso 
 just above quoted. 
 
 The act of 1883, p. 24, enacted, "that the lien given by the act 
 to which this is a supplement, shall be and is hereby extended to 
 all buildings, of whatever description, Avithin this State, and 
 to the lot or curtilage whereon the same are erected, for all debts 
 contracted or owing to any person for work done or materials fur- 
 nisiied in and for the alteration of any such building; provided, 
 that work done or materials furnished under contract in and for 
 such alterations shall bo liable to the contractor alone, in the man- 
 ner provided by the second section of said act." 
 
 It will be noticed that this act gave the lien although the owner 
 of the land had not contracted the debt and had not consented 
 in writing that the work be done. American Brick Co. v. Drink- 
 house. 30 Vroom 462. The present act repealed the act of 1883, 
 and, in the above section, requires that the debt must be the debt 
 of the owner or else that the work be with his written consent. 
 Murphy V. Hussa, 40 Vroom 381. 
 
 In both the act of 1883 and the present section, it will be noted, 
 that the proviso does not say what it means, viz.; that for work 
 done or materials furnished under contract (in and) for such 
 repairs or alterations, such huilding and the land whereon it 
 stands shall be liable, etc. 
 
 1. A lease which provides that the tenant may make repairs, 
 at his own expense, is not a sufficient consent. Hervey v. Gay, 
 13 Vroom 168. See, generally, § 7, notes 1, 3 and 4. 
 
 2. THE ALTEEATION of an old building is not the erection 
 and construction of a building, even although the alteration very 
 materially changes the building in dimensions, general appear- 
 ance, and structure, so that, in a fair sense, it might be said to be
 
 Eevision of 1898, § 10. 83 
 
 a new structure. Comhs v. Lippincott, 6 Vroom 481; Updike v. 
 Skillman, 3 Dutch. 131. 
 
 A CESSPOOL, connected with the bath room, is part of an 
 alteration of the bath room. Burd v. Huff, 17 N. J. L. J. 80. 
 
 Where the evidence clearly shows the character of the change 
 in a building, it is for the court, not the jury, to say, whether it 
 is an alteration or an addition, Updike v. Skillman, 3 Dutch. 131. 
 
 That the ALTERATION OF FIXED MACHINERY is the 
 alteration of a building see, American Brick Co. v. Drinkhouse, 
 30 Vroom 462. 
 
 3. PRIORITY OF BONA FIDE PURCHASERS AND 
 MORTGAGEES. Originally, by the provisions of § 11 of the 
 act of 1853, lien claimants were given priority over encumbrances 
 which did not exist at the time the building was begun. 
 
 In extending the lien to the case of repairs of fixed machinery, 
 etc., by the act of 1855 (see now § 9 supra), the legislature made 
 no change in this previously established order of priority; but 
 when, by the act of 1859 (now incorporated in the present sec- 
 tion), it extended the lien to the case of repairs of all buildings; 
 it took care, by its proviso, to subject the rights of such claim- 
 ants to the rights, of bona fide purchasers or mortgagees, inter- 
 vening before a lien claim was filed, and so differentiated such 
 claims from all others. 
 
 In all subsequent legislation, to th time of the present revision, 
 this limitation remained applicable only to claims for repairs, 
 as will be seen by reference to § 11 (act of 1871, p. 66), § 12 
 (act of 1893, p. 385, §§ 1 and 2), §§ 8 and 9, and the text of the 
 act of 1883, p. 24, above quoted ; except so far as the provisions 
 of the act of 1895, p. 313, § 6 (§ 15, post) may have affected 
 them. But now, by eliminating the act of 1883, p. 24, and in- 
 serting the word, "alterations," in this section, the legislature 
 has also subjected claims for alterations to this same disability. 
 
 The statute does not make it clear that the deed, or mortgage, 
 of the bona fide purchaser, or mortgagee, must be recorded before 
 the lien claim is filed, in order that the lien, for alteration or re- 
 paration, shall be invalid as against them ; and it would seem to 
 be clear, that the right of a bona fide purchaser, at a sheriff's 
 sale on a judgment antedating the commencement of the im- 
 provement, but whose deed, by no laches, was not recorded until 
 after a lien was filed, would be determined by the date of the 
 judgment and not of the record of the deed. But, presumably, 
 there must be a record of the deed, or of that from which the deed 
 derives its efiicacy, prior to the filing of the lieu claim, in order 
 1o postpone the latter to the former. 
 
 PRIORITY AS TO OTHER ENCUMBRANCERS. It will 
 have been noticed, that the present section says nothing, as to 
 the relative priority of a lien claim for alteration or reparation, 
 and the encumbrances of others than bona fide purchasers and 
 mortgagees; and the provisions of the act of 1895, p. 313. § 6. 
 (§ 15 post), above adverted to, also qualify the effect of this 
 section, in respect of a certain class of mortgagees. An analysis
 
 84 Mechanics Lien Law. 
 
 of all these different provisions, in respect of the question of prior- 
 ities, is hereafter attempted, and reference is here made thereto. 
 (See § 28 post, note 2.) 
 
 As to WHO IS A BONA FIDE MOETGAGEE, it has been 
 decided that he is such who has taken his mortgage before he has 
 actual notice that the work of reparation or alteration has begun, 
 Burd V. Huff, 17 N. J. L. J. 80; Reed v. Rochford, 50 Atl. R. 70; 
 and that a mortg'age is bona fide, even if given to secure a debt 
 which had arisen previous to the execution of the mortgage, 
 because the statute does not say that the mortgage must be for 
 value, as well as bona fide. Reed v. Rochford, supra. 
 
 Docks, etc., and lands fronting same liable to lien for the 
 construction of same. 
 
 V 11. The lien given bj this act is hereby extended to all 
 docks, wharves and piers erected upon any navigable river 
 in this state, and to the lots of land in front of which such 
 Q docks, wharves or piers may be erected, and all the inter- 
 " est of the owner or owners of such land in the soil or waters 
 
 of such navigable river in front of said lands, for all debts 
 contracted by the owner or owners thereof, or by any other 
 person with the consent of such owner or o^vners, in writing, 
 for work done or materials furnished for or about the erec- 
 tion or filling-in of said docks, wharves or piers. ^ 
 
 1898, p. 538, % 11; 1871, p. 66; Rev. 187 Jt, § 10. 
 
 This section is substantially the same as when it was first en- 
 acted in 1871, and afterwards embodied in the Revision of 1874 
 as § 10. 
 
 1. See above, under § 7, note 2, Hagan v. Gashill, 15 Stew, 215. 
 
 Building and curtilage liable to lien for the removal of 
 same. Removal of building defined (to include the erect- 
 ion, conBtruction and repair of foundation or superstruct- 
 ure to which the removal is made). 
 
 12. Every building or part or parts of any building which 
 shall hereafter be removed and shall be located upon some 
 other lot or curtilage, and which shall, when removed, con- 
 stitute a complete structure or a part of a structure upon 
 the curtilage to which the same shall be removed, shall be 
 liable for the payment of any debt contracted and owing to 
 any jjerson for labor performed or materials furnished in 
 the removal of the same, which debt shall l>e a lien on such
 
 Revision of 1898, § 13. 85 
 
 building so removed and the building to which the same shall 
 be attached or incorporated and on the land whereon the 
 building shall be removed, including the lot or curtilage 
 whereon tlie same is located bj such removal ; all of the labor 
 performed and materials furnished in erecting, constructing 
 and repairing the foundation or superstructure, upon which 
 such removed building shall be located upon or incorporated 
 with some other building, shall be deemed and taken to be 
 labor performed and materials furnished in the removal 
 of the biulding. 
 
 1898, p. 538, § 12; 1893, p. 385, §§ 1-2. 
 
 This section embodies, without change, §§1 and 2 of the act 
 of 1893, which was the first provision on the subject. 
 
 Land of married woman liable to lien for building erected 
 thereon w^ith her knowledge, unless she flies a written 
 notice to the contrary. 
 
 13. Any married woman, upon whose lands any building 
 or buildings shall hereafter be erected or repaired, or 
 whereon any fixtures shall be put, shall be taken as consent- 
 ing to the same, and such building or buildings and cur- 
 tilages whereon the same are erected shall be subject to the 
 lien created by this act; provided always, that in case said 
 married woman shall cause to be filed in the clerk's office of 
 the county wherein such building or buildings are located a 
 notice in ^vl•iting, describing tJie property, and that she does 
 not consent to the erection or repairng of such building or 
 buildings on her lands, and that the same is being done 
 against her wishes and consent, then, in such case, the build- 
 ing or buildings, and the curtilages whereon the same are 
 erected, of any married woman, shall be free from the lien 
 given by this act from the time she shall have filed a notice as 
 aforesaid; {and promded further, that nothing in this act 
 contamed shall h& so con^strued as to mahe~ the lands of any 
 person liable for amy building or repairs noi authorized hy 
 the owner, or built or done withoid the knowledge of the 
 owner), 
 
 1898. p. 538, § 13; 1870, p. 63; Rev. 187 Jf, § 9, § 28; 
 1876, p. 66. See also 1866, p. 1015, § 1.
 
 8(5 Mechanics Lieist Law. 
 
 The words in parenthesis were added by the act of 1876; ia 
 all other respects the section reads the same as when first enacted 
 in 1870, and as subsequently embodied in § 9 of the Revision of 
 1874. 
 
 THE QUESTION OF THE CONSTITUTIONALITY of this 
 section does not seem to have been raised in any case in this 
 State as yet; it has, however, been decided in other jurisdictions 
 that such a provision, inasmuch as it requires knowledge or con- 
 sent on the part of the owner, does not deprive such owner of 
 his property without due process of law. Wheaton v. Berg, 50 
 Minn. 525; Congdon v. Cook, 55 Min. 1; Title Co. v. Wrenn, 35 
 Ore^^ 62 ; 76 Am. St. Rep. 454. 
 
 But a statute which imposes a lien, for a building erected on 
 a person's lands, without requiring any proof that it was so built 
 with either his consent or knowledge, and merely upon such own- 
 er's failure to disavow any responsibility therefor. Is a violation 
 of the constitutional provisions referred to; even although the 
 statute purport merely to provide a rule of evidence by which 
 such owner's consent might be taken as inferrible from the fact 
 that the building was erected on his land, without objection on 
 his part. Randolph v. Builders, etc., Co., 106 Ala. 501;; Meyer 
 V. Berlandi, 39 Minn. 438; 12 Am. St. Rep. 663; 20 Am. & 
 Eng. Ency. (2d ed.) 316; Wig. on Ev.. § 1354. See also Berger, 
 etc., Co. V. Zabriskie, 75 N. Y. Supp. (City Ct.) 1038. 
 
 PREVIOUS STATE OF THE LAW. INABILITY TO 
 CONSENT. Prior to the enactment of the act of 1870, above 
 referred to, and before the statutes in relation to married women, 
 there could be no lien against the lands of a married woman, 
 for the erection of a building thereupon, with her acquiescence, 
 because she was incapable of legally consenting. Johnson v. 
 Parker, 3 Dutch. 239. 
 
 ESTATE BY ENTIRETY. After the married women's acts, 
 but before this act of 1870; even if a married woman was enabled, 
 by the former, to assent to a building on ber lands, so as to make 
 them liable to a lien ; her consent must have been shown to have 
 been, in fact, given; and the husband's sole contract, for the 
 erection of a building on landfe, of which they were seized by 
 entirety, rendered his separate estate only liable to lien therefor. 
 Washhiirtv v. Burns, 5 Vroom 18. 
 
 EFFECT OF PRESENT ENACTMENT. ESTATE BY 
 ENTIRETY. Whether the determination in Washhurn v. Burns, 
 will hold good since the act of 1870, may be questioned. It 
 might be held, now, that the joint estate would be liable. 
 
 As to the MARRIED WOMAN'S KNOWLEDGE of the build- 
 ing, see Kittredge v. Neumann. 11 C. E. Gr. 195. See also Dodge 
 €t al. V. Romain, 18 Atl. 114 (E. & A.) in which it was held that 
 when a building is erected on a married woman's land under a 
 contract to which she is not a party, her knowledge that it was 
 being erected is not to be inferred from the fact that she subse- 
 quently joined with her husband in conveying the land to the 
 person who procured the building to be erected, and to whom
 
 Rk VISION OF 1898, § 14. 87 
 
 her husband had agreed, without her knowledge or authority, to 
 convey the same, that subsequent ratification of his contract to 
 sell being insufficient to impute to her his previous knowledge. 
 
 As the married woman's land is liable to lien in the case con- 
 templated by the statute, it is just that she should have the bene- 
 fit of the provisions of § 2, if the contract has been filed as has 
 been accordingly held. It has also been held that she may be 
 served with a stop notice, in such case, and is the proper person 
 to be served. See Gardner & Meeks Co. v. Herold, 72 Atl. 24. 
 
 See also, generally, § 2 above, note 1, Owner's signature to 
 contract. 
 
 Recorded or registered purchase money mortgages, which 
 are also advance money mortgages, postponed to lien 
 claims, to the extent of the moneys remaining unadvanced. 
 
 14. Whereas it is the practice of owners of lots or tracts 
 of land to dispose of the same to a builder or builders, tak- 
 ing therefor a mortgage or mortgages in excess of the pur- 
 chase money price of said lot or tract of land, the mort- 
 gagee agreeing to pay such excess to the aforesaid builders, 
 from time to time, as the building or buildings progress, 
 such mortgages being known as advance money mortgages; 
 therefore, in all such transactions the building or build- 
 ings so erected shall be liable for the payment of any debt 
 contracted and owing to any person or })ersons for labor 
 performed or materials furnished for the erection and con- 
 struction thereof, which debt shall be a lien on such build- 
 ing or building's and on the land whereon they stand, includ- 
 ing the lot or curtilage whereon the same are erected, and 
 the lien for labor performed or materials furnished for the 
 erection and construction of any such building or build- 
 ings, shall be a prior lien to the lien of any mortgage cre- 
 ated on such building or buildings and lot or tract of ground 
 to secure either in whole or in part any advances in money 
 to be used in and about the construction of such building or 
 buildings, {hut to' the extent only of the moneifs remaining 
 to he advanced by the mortgagee under such agreement; 
 provided, such mortgage shall be recorded or registered 
 before the filing of any claim in. pursuance of this act). 
 
 1898, p. 538, § U; 1879, p. 77. % 1. 
 
 The words in parentheses were added by the revision of 189S, 
 in lieu of the following words of the section, as originally enacted 
 in 1879 — "except only so much of the amount of said mortgage
 
 8S Mechanics Lien Law. 
 
 as shall be for the purchase money of the lot or tract or land 
 whereon the said building or buildings shall be erected; provided 
 that nothing in this act shall interfere with a mortgage or mort- 
 gages to secure bona fide loans of money not advanced as afore- 
 said, such bona fide loans to be paid in full, anything in this 
 act to the contrary notwithstanding. 
 
 1. ADVANCE MONEY MORTGAGES. It is well settled 
 that a mortgage given to secure future advances, if duly regis- 
 tered or recorded, is good not only as against the mortgagor, but 
 is entitled to priority over all encumbrancers whose liens attach 
 subsequently to its creation, for all advances made prior to no- 
 tice of such subsequent encumbrances, and also for all advances 
 mad© prior to notice of such subsequent encumbrances, and also 
 for all advances made after such notice when the mortgagee pre- 
 vious to such notice had obligated himself to make them. Grif- 
 fin V. New Jersey, etc., Co., 3 Stock. 49; Trenton, etc., Co. v. 
 Woodruff, 1 Green Ch. 118; Bell v. Fleming's Exrs., 1 Beas. 13; 
 s. c, 1 Beas. 490; Rohinson v. Urquhart. 1 Beas. 515; Ward v. 
 Cooke, 2 C. E. Gr. 93; Kline v. McGuchin, 9 C. E. Gr. 411; 
 Taylor v. LaBar, 10 C. E. Gr. 222; Plait v. Griffith, 12 C. E. Gr. 
 207; Jacobus v. Mut.. etc., Co., 12 C. E. Gr. 604; reversing s. c, 
 11 C. E. Gr. 389; Lanahan v. Laivton, 5 Dick. 276; Central Trust 
 Co. V. Continental, etc., Co., 6 Dick. 605; Reed v. Rochford, 50 
 Atl. R. 70; Heintze v. Bentley, 7 Stew. 562. 
 
 The notice must be actual, not merely constnictive, Ward v. 
 Cooke, supra; Kline v. McGuckin, supra; Heintze v. Bentley, 
 supra; Central Trust Co. v. Continental, etc.. Co., supra; Reed 
 V. Rochford, supra; and the obligation to make such advances, 
 after actual notice of subsequently attaching liens, may be oral 
 as well as in writing. Piatt v. Griffith, supra; Reed v. Rochford, 
 
 supra. . , T 
 
 The rule thus established is as applicable to mechanics hen 
 claims as to any other kind of encumbrances. Taylor v. LaBar, 
 supra; Piatt v. Griffith, supra; Jacohus v. Mutual, etc., Co., 
 supra; Central Trust Co. v. Continental, etc., Co., supra; Reed 
 V. Rochford. supra; and it is immaterial whether the money is 
 advanced for the building, for the construction of which mechan- 
 ics' liens are claimed, or whether it is advanced, to the owner 
 thereof, for anv other purpose. Taylor v. LaBar. supra; Piatt 
 V. Griffith, supra ; Mackintosh v. Thurston, 10 C. E. Gr. 242. See 
 however. Porch v. Agnew Co., 4 Rob. 328, where it was held that 
 the holder of bonds, purchased, with a presently passing valua- 
 ble consideration, from a mortgagor, though secured by a mort- 
 gage recorded before the commencement of the building and given 
 to secure advances, is not entitled to priority over a lien claim 
 when they were purchased, with knowledge that there were build- 
 ing liens which would have to be enforced because of the mort- 
 gagor's insolvency, and were not purchased in the open market. 
 
 Such being the law in regard to these mortgages it becomes 
 next pertinent to inquire as to the scope and effect of the statute 
 in regard to them.
 
 Revision of 1898, § 14. 89 
 
 SCOPE OF THE STATUTE. It is not every advance money 
 mortgage that the section relates to ; it only affects advance money 
 mortgages which fall within the stautory terms and these very 
 plainly require, that the mortgage shall be part of a transaction 
 between the mortgagor and the mortgagee, whereby the mort- 
 gaged lands are conveyed by the latter to the former. Hence, the 
 mortgagee must be the last previous owner of the land in every 
 case, and the mortgage may, and we think always must, be a pur- 
 chase, as well as an advance, money mortgage. 
 
 Furthermore, the terms of the statute include only such mort- 
 gages as are given to secure advances of money to be used in the 
 construction of a building and to be made as such building pro- 
 gresses. It seems, therefore, not to include mortgages to secure 
 advances for the alteration or reparation of a building, or for 
 an addition thereto, or the removal thereof. 
 
 EFFECT OF THE STATUTE, AS TO EXTENT OF 
 PRIORITY OF MORTGAGE. As originally enacted, the 
 statute postponed every mortgage which was within its scope, to 
 all lien claims, except so far as such mortgage secured the pur- 
 chase price of the land, even although the mortgagee had advanced 
 the rest of the moneys it was given to secure, and they had been 
 actually devoted to the payment of materialmen and laborers for 
 the construction of the building. Neio Jersey, etc., Co. v. Bach- 
 elor, 9 Dick. 600; Mutual, etc., Co. v. Walling, 6 Dick. 99. 
 
 Soon after the decision of this last cited case, the statute of 1895, 
 p. 313, was enacted, the sixth section of which, as was said in 
 Binns v. Slingerland, 10 Dick. 55, modified the act of 1879, by 
 providing that every mortgage, registered or recorded before 
 the filing of a lien' claim, should have priority over any such 
 claim to the extent of the moneys actually advanced by the mort- 
 gagee and applied to the erection of any new building, or any al- 
 terations, repairs, or additions to any building on the mort- 
 gaged lands. This section of the act of 1895 is retained, without 
 any material change, as section 15, of the present revision; and 
 the revisers, in framing the present draft of section 14, now under 
 consideration, omitted the words which stood at the end of the 
 original act of 1879, and added those which now take their place, 
 obviously on account of the provisions of section 15, but with 
 what precise intent or effect is perhaps uncertain. 
 
 This uncertainty arises from tlie fact that § 14 gives the mort- 
 gage priority to the extent of the moneys advanced by the mort- 
 gagee for the building, while § 15 makes the extent of the priority 
 depend also on the fact that the money advanced has been actually 
 applied to the erection, etc., of the building. In the light or the 
 decisions which hold that the language of § 1, gives a lien for 
 materials furnished, whether they are actually used or not (see 
 § 1, note 2) ; it can hardly be said that this difference, in the word- 
 ing of §§ 14 and 15, is unimportant; and it may be, therefore, 
 that a mortgage, which falls within the scope of § 14, under cer- 
 tain circumstances, namely, where the mortgagee has, bona fide, 
 advanced the money for the building, but the builder has failed
 
 90 Mechanics Lien Law. 
 
 to apply them thereto, will have priority to the extent of such 
 advance, when, under the same circumstances, a mortgage within 
 the scope of § 15, but not within § 14, would be denied priority 
 to the like extent. 
 
 In view of the previous course of the legislation in the matter, 
 there is a violent presumption of common sense, that the legisla- 
 ture did not wittingly intend any such result, in enacting the 
 present revision ; and so, it may be held, that such is not the ti'ue 
 construction of these sections, but that the true construction is, 
 that the extent of the priority of mortgages, within the scope of 
 § 14, is to be determined by the provisions of § 15, and that the 
 office of the words, at the end of § 14, is merely to remove any 
 doubt of the application of § 15, according to the full generality 
 of its terms. This construction might be open to the criticism, 
 that it goes far to render the whole fourteenth section entirely 
 superfluous and useless, were it not for the matter to which we 
 now direct attention: 
 
 A CLAIM WITHIX THE TERMS OF THIS SECTION 
 MAY BE GOOD ALTHOUGH THE OWNER NEITHER 
 CONTRACTED THE DEBT, NOR EXPRESSLY CON- 
 SENTED TO THE BUILDING. The statute says that, m all 
 the transactions which it describes, "the building so erected shall 
 be liable for the pajTiient of any debt contracted, etc., which debt 
 shall be a lien on such building or buildings and on the land, etc." 
 In Mutual, etc., Co. v. Walling, 6 Dick. 99, it was intimated that 
 these words might be omitted, in reading the statute, as mere ex- 
 pletive, and that may have been true for the purposes of that 
 case; but they are not omitted by the legislature in its revision, 
 and there is a presumption that they are neither superfluous nor 
 ineffective. It may be held, therefore, that they afford a reason- 
 ably clear indication of a legislative pui-pose, to make the case, 
 which the section describes, an exception to the generality of 
 § 7, and to give materialmen and laborers a lien against the 
 estate of the vendor, notwithstanding the want of his consent, 
 whenever such claimants can show that these claims have arisen 
 under such special circumstances. Such was the effect given 
 to substantially the same words in the act of 1883, p. 24 (quoted 
 under § 10, ante), by the Court of Errors and Appeals m Amer- 
 ican Brlch Co. V. Drinkhouse, 30 Vroom 462; as was pointed 
 out in Murphy v. Hussa, 40 Vroom 381. 
 
 Some support for this view may be also found m the fact that, on 
 any other hypothesis, the vendor and builder, in the precise case 
 to which the statute applies, by making the delivery of the deed 
 at a date later than the time within which any lien could be 
 filed, could render the statute entirely inefficacious. On the other 
 hand, it mav be said that, on the hjTothesis, above suggested 
 as a possibilitv, the lien of a claimant would affect the vendor's 
 estate prior to the mortgage, and so be prior to the latter^ even 
 in respect of its quality as a purchase money mortgage. But to 
 this it may be answered that the mortgage, m that respect, miglit 
 have effect, by relation, from the time the bargain was made.
 
 Revision of 1898, § 15. 91 
 
 Jacobus V. Mutual, etc., Co., 12 C. E. Gr. 604; and that, if 
 this would not be so as to lien claimants, without notice of such 
 bargain; the vendor could protect himself, in that behalf, by 
 having the bargain in writing and recorded. 
 
 All recorded or registered mortgages, to the extent of 
 the moneys actually advanced and applied to the erect- 
 ion, alteration, or repair of, or the addition to, a building, 
 are prior to lien claims. 
 
 15. Every mortgage given or to be given upon lands in 
 this state shall have priority over any claim that may be 
 filed in pursuance of this act to the extent of the money 
 actually advanced and paid by the mortgagee and applied 
 to the erection of any new building upon the mortgaged 
 lands or any alterations, repairs or additions to any build 
 ing on said lands ; provided, such mortgage be registered 
 or recorded before the filing of any such claim.^ 
 
 189S, p. 538, § 15; 1895, p. 313, § 6; see also § 28 
 post. 
 
 The section is substantially identical with the original enact- 
 ment of 1895. 
 
 1. SCOPE OF SECTION. Some discussion of this matter, 
 and of the rule in regard to the priority of advance money mort- 
 gages, in the absence of statutory regulation thereof, is made in 
 the note to the previous section (14). It may here be pointed 
 out, that this section applies to all mortgages, but that it applies 
 to them, in its terms, only in respect of their quality as advance 
 money mortgages; that is, on the one hand, the section cannot 
 limit the priority of mortgages other than, or so far as they are 
 other than, advance money mortgages. Reed v. Rochford, 50 Atl. 
 E. 70; and, on the other hand, it cannot limit the priority of 
 a lieil claim, in respect of encumbrances other than advance 
 money mortgages. As already noted under § 10, supra, the ques- 
 tion of priority, as between lien claims and various other encum- 
 brances, involves an analysis of that section as well as of this 
 section, and § 28, which is attempted in our note 2 to § 28, which 
 see. 
 
 WHEN ADVANCES MUST BE MADE. The statute gives a 
 mortgage priority for advances actually made and applied, etc., 
 but is silent as to the time within which they must be made, 
 in order to secure such priority. Under the rule mentioned in 
 the note to § 14, a mortgagee who has obligated himself to make 
 advances, will be protected as to such advances although made 
 after actual notice of the claims of others, and so it would seem 
 that the time, within which the advances can be made with safety.
 
 92 Mechanics Lien Law. 
 
 as against lien claims, is not determined by the filing of lien 
 claims. 
 
 When a mortgage is given to secure moneys advanced and ac- 
 tually used for the erection of a building, such mortgage will be 
 prior in lien to lien claims filed after it is recorded, although the 
 moneys are advanced as the building progresses and the mort- 
 gage was executed after the building was begun. The priority 
 given by the section is given whether the mortgage is given to 
 secure future advances or money already advanced. Young v. 
 Height, 40 Vroom 453, citing Erdman v. Moore, 29 Vroom 445, 
 and noting that it is not in conflict with the above holding in- 
 asmuch as it decided a case arising before 1895. 
 
 But a mortgagee who claims priority because his mortgage was 
 recorded before any lien claim is filed must prove that the loan 
 thereby secured has been advanced for, and applied to, the erec- 
 tion of the new building. Porch v. Agnew Co., 4 Rob. 328. He 
 does not show that by showing that he was himself the builder 
 and took the mortgage pending the progress of his work, to se- 
 cure the pavment of his contract price. Stiles v. Galhreath, 3 Rob, 
 222; s. c, aff. 1 Buch. 299. 
 
 Lien claim to be filed within four months. Such claim 
 to contain : 1. Description of building and curtilage ; 2. 
 Owner's name and estate ; 3. Contractor's name ; 4. Bill 
 of particulars of amounts, prices, dates, credits, etc. Par- 
 ticulars in case of contract. Claim to be verified. Eflfect 
 of misstatements in bill of particulars, 
 
 16. Every person intending to claim a lien under the 
 provisions of this act^ shall within (faur mmhths,) after 
 the labor is performed or the materials furnished^ for which 
 such lien is claimed, file his (or her) claim in the office of 
 the clerk of the county where the building and land sub- 
 ject to such lien is situate,^ which claim shall contain: 
 
 I. A description of the building and of the lot or curti- 
 lage upon which the lien is claimed, and of its situation suf- 
 ficient to identify the same f 
 
 II. The name of the owner or owners of the land or of 
 the estate therein on which the lien is claimed ;* 
 
 III. The name of the person who contracted the debt, or 
 for whom, or at whose request the labor was performed or 
 the materials furnished for which such lien is claimed, who 
 shall be deemed the builder;^ 
 
 IV. A bill of particulars exhibiting the amount and kind 
 of labor perfonned and of materials furnished, and the 
 price at which and times when the same was perfonned and
 
 Revision of 1898, § 16. 93 
 
 furnished, and giving credit for all the payments made 
 thereupon and deductions that ought to be made therefrom, 
 and exhibiting the balance justly due to such claimant,® 
 which statement, when the work or materials or both are 
 furnished by contract, need not state the particulars of 
 such labor or materials further than by stating, generally, 
 that certain work therein stated was done by contract at a 
 price mentioned ;'' and such bill of particulars and state- 
 ments shall be verified by the oath of the claimant or his 
 agent in said matter, setting forth that the same is for labor 
 done or materials furnished in the erection of, {addition 
 to, repmr of, or aUeraiion in or of) the building in such 
 claim described, at the times therein specified, and that the 
 amount as claimed therein is justly due; and when such 
 claim shall not be filed in the manner or within the time 
 aforesaid, or if the bill of particulars shall contain any 
 willful or fraudulent misstatement of the matters above 
 directed to be inserted therein, the building or lands shall 
 be free from all lien for the matters in such claim. ^ 
 
 1898, p. 538, § 16; 1853, p. ^37, § 6; Rev. 1874, % 11; 
 1877, p. 153; 1878, p. 243; 1895, p. 313, § 4; 1896, 
 p. 198. 
 
 With the exception of the words above included in parentheses, 
 this section is practically the same as originally enacted in 1853, 
 and re-enacted in the Eevision of 1874. 
 
 In 1877 some material changes were made; that is, that act 
 required the claim to stat^ the true date when the building was 
 begun, and concluded the claimant by his statement of it, while 
 invalidating his iien, for any willful or fraudulent misstatement 
 of it. It also changed the requirement, that the claim should 
 state the name of the owner "of the land or of the estate therein 
 on which the lien is claimed" to the requirement that it should 
 state the name "of the owner of the estate therein," etc. The 
 act of 1878, however, restored the section to its original form in 
 all respects, with the slight change of the insertion of the words — 
 "or her," noted in parentheses above. 
 
 The act of 1895 provided that no claim should be a lien unless 
 the claim was filed within four months after the date of the last 
 work done, etc., nor should it be enforced unless suit should be 
 begun within 90 days after the last work done. etc. The act ol 
 1896 corrected the anomaly of the act of 1895, by fixing the same 
 limitation period, four months, for both the lien claim and the 
 suit. The present revision adopts this limitation period of four 
 months, and inserts the words — "addition to, repair of or alteration 
 in or of," above noted in parentheses; otherwise, as above stated.
 
 94 Mecha^jics Lien Law. 
 
 tlie section is practically the same as it was in 1853 and has stood 
 substantially ever since. 
 
 1. LIiynTATION The statute plainly says that the lien claim 
 is to be filed after the labor is performed or the materials fur- 
 nished for which claim is made. It requires the lien claim to set 
 forth verified statements, inter alia, showing that such is the fact. 
 It would seem plain, therefore, that no lien can validly in- 
 clude any item that has not been, in fact, furnished prior to the 
 time it is filed. It is said in Derrickson v. Edwards, 5 Dutch. 468, 
 at p. 470, speaking of an entire contract, that "the work and mate- 
 rials" (for which it provided) "cannot be considered as furnished 
 until the whole contract was completed." When, therefore, in Ed- 
 wards V. Derrickson, 4 Dutch. 39, at p. 68, it is said that "if the 
 whole contract price was payable in advance the lien claim need 
 not be filed till the contract is complete," it is surmised that it 
 should have been said, not that the lien claim need not, but that it 
 could not, be filed till the contract is complete. In other words, it 
 is apprehended that if a lien claim is filed before the contract works 
 are completed, it is an invalid claim and the subsequent comple- 
 tion of the works wiU not help it any. It may be that, when a 
 contract provides for payments in instalments as the work pro- 
 gresses, a lien claim can be well filed for one or more of such 
 instalments as soon as earned, but the lien need not, and ordinarily 
 should not, be filed, in such a case, until the contract work is 
 complete. (See Edwards v. Derrickson, 4 Dutch. 39, at p. 68, 
 and at tlie end of this note, as to the number of items which to- 
 gether make one indebtedness). In the ease last cited, at p. 68, 
 it is further said that "when the entire contract price is payable 
 
 at the conclusion of the work no lien can be filed until the 
 
 contract is completed and the debt due" The last phrase of this 
 quotation, which we have italicized, was obviously spoken obiter, 
 and it is hardly likely that it was intended to assert that a lien 
 could not be filed until the indebtedness is legally demandable. 
 In many cases a claimant is entitled to demand his pay as soon 
 as he has completed his work; and, in such cases, to say that he 
 cannot file a lien until his debt is due and demandable is to say 
 no more than that he cannot file his lien until he has completed 
 his work. But, where, as frequently happens, the work is done 
 under a contract which provides for an architect's certificate, or 
 the production of releases or the like before the contract price is 
 payable, it may well be considered that a lien claim can be safely 
 filed as soon as the work is completed, and the compensation has 
 really been earned (and in that sense may be said to have become 
 due) ; although the architect's certificate is not obtained, or some 
 other condition precedent is not performed, until thereafterwards. 
 
 It is true that the suit to enforce the lien may be defeated if it 
 be begun before there has been a performance of such condition 
 precedent, or before its non-performance has become legally ex- 
 cused (see note 1 under § 23, post) ; but as such a defense may be 
 waived by the defendant's omission specially to plead it, it seems
 
 Revision ok 1898, § 16. 95 
 
 quite obvious that a si>ecial plea would be bad which alleged the 
 non-performance, not before suit begun, but merely before the 
 lien claim was filed. 
 
 A lien claim, of course, cannot be filed for a debt which be- 
 came due more than four months prior to the time it is 
 filed. But where a number of items together make one 
 indebtedness, and this is so whenever^ in fact, the parties 
 intended that result, the debt becomes due on the date of the 
 last item; so that the provision of § 18, which requires the lien 
 to be filed within four months from the date of the last work done 
 or materials furnished (which provision must be read together 
 with the present section), entitles the claimant to file a claim for 
 the whole amovmt of such indebtedness within such four months. 
 Downing ton, etc., v. Franlclin Mills, 34 Vroom 32; Bell v. Mecum, 
 68 Atl. 149 (E. & A.). Whether the various items of a claim do 
 constitute one entire debt or not is for the jury to say, when 
 there is evidence pro and contra. Bell v. Mecum, supra. The 
 last day for such filing is, pi'obably, the day of the fourth month 
 corresponding to the date of the last item. Faith v. McNair, 13 
 N. J. L. J. 44. 
 
 Any substantial work in pursuance of a contract is work from 
 the date of which the time within which to file a lien claim may 
 be reckoned. Federal Trust Co. v. Guigues, 74 Atl. 652. See 
 also note 6, post, stating date, etc. 
 
 WAIVER OF LIEN by taking notes, etc., see section 1, note 3. 
 
 LOSS OF LIEN BY LACHES. Although a lien claim may 
 be filed and sued upoii in dlie season, it may be lost through the 
 laches of the claimant. For example — A prior mortgagee is not 
 bound to take notice of such a lien until the claim is filed; and, 
 hence, a claimant, who has not filed his claim until after a suit 
 to foreclose such a prior mortgage is begun, and so is not made a 
 party thereto, and who does not then apply to be made a party, will 
 be cut off by such foreclosure. Raymond v. Post, 10 C. E. Gr. 447; 
 Gerard v. Birch, 1 Stew. 317. 
 
 2. THE OBJECT OF FILING a lien claim is to give inter- 
 ested parties notice. Vreeland Co. v. Knickerbocker Co., 68 Atl. 
 215 (E. & A.). 
 
 The validity of a lien claim is not affected by the fact that a 
 mortgagor, after getting his loan, procured such claims to be 
 filed, without disclosing to his mortgagee, at the time the latter 
 loaned him the money, that there were any such claims which 
 could be filed. Gordon v. Torrey, 2 McCart. 112. 
 
 3, DESCRIPTION OF BUILDING. If it does not appear 
 that the materials were supplied for a designated building, a lien 
 claim is nevertheless good if it does appear that they were sup- 
 plied to the defendant who, in fact, did use them for the build- 
 ing specified in the lien claim. Morris County Bank v. Rocka- 
 way Mfg. Co., 1 MeCart. 189. 
 
 DESCRIPTION OF CURTILAGE. The omission of this 
 description from a lien claim would be fatal, unless cured by 
 amendment. American Brick Co. v. Drinkhouse, 29 Vroom 432.
 
 96 Mechanics Lien Law, 
 
 If the description is incorrect, it may be altered on application. 
 See, as to this, § 20, post, and section 21 post. 
 
 APPORTIONMENT OF CLAIM. As to this, in the ease of 
 separate buildings on distinct lots, see § 22, post. 
 
 4. OWNER'S NAME. The owner's name must be specified. 
 The lien claim cannot bind any interest or estate other than that 
 of the person named as owner therein. But a misnomer is un- 
 doubtedly amendable, in the absence of good reason for refusing 
 it. Vreeland Co. v. KnickerhocJcer Co., supra. 
 
 CHANGE OF TITLE. Where the title changes before the 
 lien is filed, the owner, at the time it is filed, is the person to be 
 named, in the lien claim, as owner. Edwards v. Derrickson, 4 
 Dutch. 39; s. c, 5 Dutch. 468; Rohins v. Bunn, 5 Vroom 322; 
 Slingerland v. Lindsley, 1 N. J. L. J. 115; Erdman v. Moore, 29 
 Vroom 445. If the owner convey after contracting for the build- 
 ing, the right of lien is not thereby lost or impaired. Edwards v. 
 Derrickson, 4 Dutch. 39; 5 Id. 468; Bates Co. v. Trenton Co., 41 
 Vroom 684 (E. & A.); Stewart Co. v. Trenton Co., 42 Vroom 
 568 (E. & A.). ^ . ^ ^ 
 
 A mortgage does not effect a change of ownership. Gordon v. 
 Torrey, 2 McCart. 112. . 
 
 DESCRIPTION OF ESTATE. The act does not required the 
 estate to be specified, but only the owner's name. Cornell v. Mat- 
 thews. 3 Dutch. 522. , ^ , 
 
 OWNERS OF ESTATES BY ENTIRETY. Although the 
 claim is against the estate of the husband only, it is proper that 
 the lien claim should name both husband and wife as owners. 
 Washburn v. Burns, 5 Vroom 18. 
 
 OWNERS OF EQUITABLE ESTATES. See, under § 1, note 
 5, Equitable Estates. 
 
 OWNERS OF TERMS FOR YEARS. A lien, for alterations 
 made by a tenant, can be claimed only against such tenant, as 
 owner. Corcoran v. Jones, 12 N. J. L. J. 38. 
 
 5. BUILDER'S NAME. In case the true builder has not been 
 named in the lien claim, the claimant cannot hare a recovery, 
 without amendment. Bartley v. Smith, 14 Vroom 321. 
 
 6. BILL OF PARTICULARS. The statute should be strictly 
 followed, in all these particulars; and a charge for labor must 
 not be blended with one for materials. A claim is not necessarily 
 bad, for including illegitimate, as well as legitimate, items; for 
 it may stand, quoad the good items; but if the good and the bad 
 items are inseparably blended, the claim will be bad. Associates 
 V. Davison, 5 Dutch. 415; Edwards v. Derrickson, 4 Dutch. 39; 
 Whitenack v. Noe, 3 Stock. 321; Jacobus v. Mutual Benefit, 12 
 C. E. Gr. 604. 
 
 THE COST OF HAULING engines from the freight station 
 to their site in the power house under erection is properly included 
 in the claim, when the duty to haul them was part of the contract 
 to erect them. Bates Co. v. Trenton Co., 41 Vroom 684.
 
 Revision of 1898, § 16. 97 
 
 STATING ITEMS FOR REPAIRS AND ALTERATIONS. 
 A claim may properly include items for repairs (and now for al- 
 terations and repairs), as well as for construction; but, as the 
 priorities of claims for repairs (or now for repairs or altera- 
 tions), and those of claims for construction, depend upon dif- 
 ferent facts, the lien claim, in each case, should distinguish the 
 items for repairs or alterations from its other items. James v. Van- 
 Horn. 10 Vroom 353; Burd v. Huff. 17 N. J. L. J. 80. Where 
 the lien claim is for repairs and the proof in the suit is that the 
 bill is for erection of a new building, there is a fatal misdescrip- 
 tion. Cox V. Flanagan, 2 Atl. 33 (Bird, V. C). 
 
 STATING DATE WHEN THE WORK, ETC., WERE SUP- 
 PLIED. The statute does not require that the time when the 
 building was begun shall be stated in the lien claim, Gordon v. 
 Torrey. 2 McCart. 112; but it does require that the date when each 
 item of work was done and each item of materials was furnished 
 should be stated, American Brick Co. v. Drinhhouse, 29 Vroom 
 432 ; and the date of the last item, as given in the lien claim, is 
 the date from which is to be reckoned, the time within which 
 suit t-o enforce the lien must be begun. And if, in fact, such 
 date is given in the lien claim, as earlier than it was in fact, the 
 date, as thus given, and not as it really was in fact, will control. 
 Bement, etc., v. Trenton Co., 2 Vroom 246; s. c, 3 Vroom 513. 
 
 7. STATING CONTRACT WORK. Wlien the claim is for 
 a contract job, the bill of particulars is sufficient if it states the 
 kind of labor and materials, the fact that they were done and fur- 
 nished, under contract, prior to a given date, and the contract 
 price. Edwards v. Derrickson. 4 Dutch. 39; Williamson v. N. J., 
 etc., B. R. Co., 1 Stew. 296; Associates, etc.. v. Davison. 5 Dutch. 
 415, 421. 
 
 8. AMENDMENTS. A lien claim is not a part of the files or 
 records of the Circuit Court and so, prior to the statutes, embodiexi 
 below in §§ 19 and 20. there was no way of amending any defects 
 in a lien claim, after it was tiled ; as the powers of the Circuit 
 Court to grant amendments does not extend beyond its own files 
 and records. Vreeland v. Boyle, 8 Vroom 346. The provisions of 
 the sections, above mentioned, under which amendments may now 
 be made, should be carefully examined. 
 
 "There is nothing in the spirit or letter of the act that renders 
 an error made in stating the name of the owner fatal to a SUB- 
 SEQUENT ATTEMPT, EITHER BY AMENDMENT OR BY 
 FILING A SEPARATE CLAIM, to reach estates or interests 
 owned by parties other than him who was named as owner in the 
 claim first filed." Vreeland Co. v. Knickerbocker Co., 68 Atl. 215 
 (E. & A.). 
 
 A lien claim ag-ainst a corporation, as owner, which has been 
 declared insolvent and for which a receiver has been appointed, 
 may be defective for not naming the receiver as owner; but if 
 so, the defect is amendable, and equity will deal with it as though 
 
 7
 
 98 Mechanics Lien Law. 
 
 amended, if there is no equitable ground for doing otherwise. 
 Doty V. Auditorium Co., 56 Atl. 720; s. c, aff. 20 Dick. 768. 
 
 Lien docket in County Clerk's office, to sho-w : 1. O^wrner's 
 name ; 2. Contractor's name ; 3. Description of building 
 and curtilage; 4. Amount of claim, and claimant's name. 
 Index. Pees. 
 
 17. Every county clerk shall, at the expense of the county, 
 ■provide a suitable, well-boimd book, to be called the lien 
 docket, in which, upon the filing of any lien claim, he shall 
 enter : 
 
 I. The name of the owner of the building and land upon 
 which the same is claimed ; 
 
 II. The name of the builder or person who contracted 
 the debt; 
 
 III. The description of said building and lands ; 
 
 IV. The amount claimed and by whom claimed. 
 
 And the said clerk shall make a proper index of the 
 same, in the name of the owner of the land and building; 
 and such clerk shall be entitled to twelve cents for filing 
 each claim, or contract, and at the rate of eight cents per 
 folio for such entry made in the lien docket, and six cents 
 for every search in the ofiice for such lien claim, or contract. 
 
 1898, p. 538, § 17; 1853, p. 437, § 7; Rev. 1874, § 12. 
 
 This section is practically the same as when first enacted, as § 7 
 of the act of 1853, and subsequently embodied in the Revision of 
 1874, as § 12. 
 
 The following act, 1904, p. 243, is here inserted. It is, in effect, 
 supplemental to § 17. 
 
 "1. It shall be the duty of the clerks, registers and other oific*crs 
 who are now obliged by law to receive and record deeds, mort- 
 gages, bills of sale and other conveyances, or whose duty it is 
 to enter, file or record judgments, decrees, mechanics' lien claims, 
 attachments, recognizances, sheriff's bonds or other liens and en- 
 cumbrances on real estate in this State to keep, in addition to 
 the entry and record of the same already provided by law, an 
 exact record of the hour and minute when the same shall be filed, 
 entered or recorded in their respective olfices, and such entry, 
 filing or recording shall be deemed to take effect and be notice 
 thereof from and as of the exact time of the actual entry, filing or 
 recording of the same, and such record, filing or entry in the 
 office of every clerk, register or other officer in this State shall 
 be prima facie evidence in all courts and places of the exact time 
 of such record, entry or filing."
 
 Revision of 1898, § 18. 99 
 
 Lien claim must be filed and summons must be issued 
 within four months from the date of last item of claim : 
 time of issuance must be endorsed on lien claim : suit must 
 be prosecuted diligently: extension of time for prosecut- 
 ion by agreement filed and noted. 
 
 18. Xo debt shall be a lien by virtue of this act, imless 
 a lien claim is filed as hereinbefore provided, within (four 
 months) from * ihe date of the last work done or materials 
 furnished for which such debt is due; * nor shall any lien 
 be enforced by virtue of this act unless the summons m 
 the suit for that purpose shall be issued within a fowr 
 mmUhs a from the date of the last work done or materials 
 furnished in such claim ;^ and the time of issuing such sum- 
 mons shall be endorsed on tlic claim by the clerk upon the 
 sealing thereof, and if no such entry be made within four 
 months from such last date,^ § or if such claimant shall fail 
 to prosecute his claim diligently withiti one year from the 
 d-ate of issuing such summons or such further time as the 
 court may by order direct,^ § such lieu shall be discharged, a 
 and all sails now pending where a claim has been filed and a 
 summons issued withim four months from the date of the 
 last work done or materials furnished for which said debt 
 is claimed shall be included within the provisions of this act; 
 A provided, that the time in which such lien may be enforced 
 by summons may be extended for any further period, not 
 exceeding four months, by a written agreement for that 
 purpose, signed by said land-owner and said claimant, and 
 annexed to the said claim on file before such time herein 
 limited therefor shall have expired, in which case the county 
 clerk shall enter the word "Extended" in the margin of 
 the lien docket op|X)site such claim, and any claimant, upon 
 receiving wa-itten notice from the oAvner of the lands or 
 building requiring him to commence suit on such claim 
 within thirty days from the receipt of such notice, shall 
 only enforce such lien by suit to be commenced witliin said 
 thirty days.* 
 
 1898, p. 538, § 18; 1858, p. 4S7, § 12; Rev. 181k, 
 § IS; 1888, p. m; 1895, p. SIS, § J,; 1896. p. 198. 
 
 In the acts of 1853, the Eev. of 1874, and the act of 
 
 1888, the words here were — "the furnishing the materials or per- 
 forming- the labor for which such debt is due, and such part
 
 100 Mechanics Lien Law. 
 
 of aiiy claim filed as may be for work or materials fiiviiislied 
 more than one year before the filing of the same, shall not be 
 recovered against the building or land by virtue of this act." 
 
 All of these acts also made the period of limitation, for filing 
 the lien and bringing suit, one year. This i^eriod was reduced 
 to four months by the acts of 1895 and 1896 (see note to § 16 
 above). . . 
 
 The act of 1888 was the first enactment to insert the provision, 
 indicated above between the section marks § — §, making the 
 period three years, which was then reduced to one year by the 
 act of 1895. The words between the carets a — a were first in- 
 serted by the act of 1896. With these exceptions, this section, as 
 it now stands, has been the law since 1853. 
 
 By the act of 1910, page 229, the above section was amend- 
 ed to read as follows : 
 
 No debt shall be a lien by virtue of this act unless a lien 
 claim is filed as hereinbefore provided within four (4) 
 months from the date of the last work done or material fur- 
 nished for which such debt is due ; nor shall any lien be en- 
 forced by virtue of this act unless the summons in the suit 
 for that purpose shall be issued within four (4) months from 
 date of the last work done or materials furnished in such 
 claim; and the time of issuing such summons shall be en- 
 dorsed on the claim by the clerk u^wn the sealing thereof, 
 and if no such entry be made within four (4) months from 
 such last date, or if such claimant shall fail to prosecute his 
 claim diliaentlv within one (1) vear from the date issuing 
 such summons, or such further time as the court may by 
 order direct, such lien shall be discharged, and all suits now 
 pending where a claim has been filed and a summons issued 
 within four (4) months from the date of the last work done 
 or materials furnished for which said debt is claimed shall 
 be included within the provisions of this act ; provided, that 
 the time in which such lien may be enforced by summons 
 may be extended for any further period, not exceeding four 
 (4) months, by a written agreement for that purpose, signed 
 by said landowner and said claimant, and annexed to the 
 said claim on file before such time herein limited therefor 
 shall have expired, in which case the county clerk shall enter 
 the word "Extended" in the margin of the lien docket oppo- 
 site such claim, and any claimant, upon receiving written 
 notice from the owner of the lands or building requiring him 
 to commence suit on such claim within thirty days from the 
 receipt of such notice, shall only enforce such lien by suit to
 
 Eevision of 1898, § 18. 101 
 
 be commenced Avithin said thirty days ; p)Ovided, fartlier, 
 that Avhen any snit is brought in any district court on such 
 lien claim, it shall be the duty of the plaintiff, or his attorney, 
 to obtain from the clerk of such district court a certificate to 
 the effect that a suit has been commenced in such district 
 court on such lien claim, specifying the court where the suit 
 is brought, the day and year when such suit was commenced, 
 and the day and year when the summons is made returnable, 
 which said certificate the plaintiff or his attorney shall pre- 
 sent to the clerk of the county in which such lien claim is 
 filed within four (4) days after issuing of summons; it shall 
 thereupon be the duty of the clerk of said county to endorse 
 upon such lien claim that a suit has been commenced on the 
 same, specifying the court where suit is brought, the day and 
 year when sunmions was issued, and when such is made 
 returnable. 
 
 See also under § 23 post for the other new legislation in this 
 same connection. The following notes were prepared before this 
 amendment was adopted. 
 
 1. See § 16, note 1, and note, that the date of the last item, 
 as given \\\ the lien claim, fixes the time to reckon from even al- 
 though the date so given is earlier than the true date actually 
 was. Bemenf v. Trenton Co., 2 Vroom 246; s. c, 3 Vroom 513. 
 
 2. In James v. Van Horn. 10 Vroom 353, it was said; and in 
 Hall V. Spaidding, 11 Vroom 166, it was held, that only such per- 
 sons as could be prejudiced, by the omission to endorse on the 
 lien claim the date when the summons was issued, could object 
 to such failure, and that, therefore, as to them, a judgment would 
 be valid where the endorsement was made after the expiration 
 of the statutory period, or even where no endorsement, prior to 
 judgment, was made. These cases must be deemed to have been 
 overruled, by the Court of Errors, in Wheeler v. Almond, 17 Vroom 
 161, which held, that the failure to endorse on the lien claim the 
 date of the summons, within the statutory i)eriod (then of one 
 year now of four months from the date of the last work done), 
 or within thirty days after due notice toi sue, discharges the lien 
 as effectually as payment of the debt; and that the power of 
 amendment conferred by §§ 19 and 25, cannot be invoked to 
 cure such failure; because the endorsement is intended, by the 
 statute, to be a notice, on the files of the county clerk,^ that the 
 remedy is being pursued, but is no part of the lien claim, or of 
 the proceedings, by suit, to enforce it. See also Cox v. Flanagan, 
 2 Atl. 33 (Bird, V. C), to the effect that such endorsement can- 
 not be made after the summons has been issued, which is clearly
 
 102 Mechanics Lien Law. 
 
 contrary to the decision in Wheeler v. Almond, and the plain 
 words of the statute. 
 
 See § 31, clauses III. and IV., for the provisions which require 
 the endorsement to be made within thirty days after notice to 
 sue has been given. 
 
 3. The construction of this clause of the statute was the sub- 
 ject of consideration in a case in the Court of Errors and 
 Appeals, Ennis v. Eden, etc., Co., 48 Atl. E. 610; which merits 
 careful attention. The case came into the Court of Errors on 
 a writ of en-or to the Morris Circuit, and presented, for review, 
 the record of a judgment on a lien claim entered, by default, 
 sixteen months after the suit was begun and thirteen months 
 after the right to enter such judgment had accrued. After the 
 judgment was entered, an application to open it was made, on 
 the ground that it had been entered, after the lien had been dis- 
 charged, by lack of diligent prosecution. This application, which 
 was made in the name of the defendant corporation, which was 
 both builder and owner, was denied after due hearing, on rule 
 to show cause and proofs taken thereunder. 
 
 The record of the judgment, and the outbranches brought up 
 with it, showed the following facts, besides those already above 
 related: On the day the summons was issued, but after it was 
 served, the defendajit went into the hands of a receiver, appointed 
 by the Court of Chancery of this State. The receiver did not 
 dispute the correctness of the indebtedness to the plaintiff, but 
 admitted it, and subsequently, on selling the lands of the de- 
 fendant, gave the purchaser notice that they were sold subject to 
 the lien claim of the plaintiff. The plaintiff was at no time en- 
 joined from, prosecuting his suit, but did not do so, because he 
 thought it unnecessary, in view of the fact, that the amount ot 
 his claim was undisputed by the receiver, who had also adjusted 
 the dividend that would be due on it. Nearly thirteen, and more 
 than twelve, months after suit was begxm. the plaintiff, on a veri- 
 fied petition of the facts, obtained, exparte, an order extending the 
 time for prosecution, and entered his judgment withm the time 
 
 so extended. , , , i . ^i • j j. 
 
 On this case, the majority of the court held that the judgment 
 must be affirmed, and four of the Justices (Dixon, Collins, Bogert 
 and Voorhees), dissenting, held that it ought to be reversed. 
 
 Two opinions were filed, one by Justice Depue, representing 
 the majority of the court, and a dissenting opinion by Justice 
 Dixon It is conceded, in both opinions, that the judgment could 
 not stand, if the facts showed that the plaintiff had failed to exer- 
 cise reasonable diligence in prosecuting his suit; and that the 
 only lack of diligence that it could be claimed he had been guilty 
 of, was his failure to enter his judgment within the year, ihis 
 in the opinion of the minority, was a failure to exercise due dili- 
 gence, while in the opinion of the majority it was not, tor the 
 reason that, inasmuch as the receiver was empowered to adjust 
 such claims without requiring them to be passed into judgment. 
 DeMott V. SiocJcton, etc., Co., 5 Stew. 124; and, inasmuch as the
 
 Revision of 1898, § 18. 103 
 
 judgment would have effected nothing beyond the ascertainment 
 of the debt, which was undisputed, since an attempt to enforce 
 it by execution would liave been, undoubtedly, enjoined; the en- 
 try of the judgment would have been an idle and nugatory act. 
 
 The following abstract of the two opiuons given in the case will 
 be found, we think, helpful: 
 
 JUSTICE DEPUE'S OPINION. 
 
 The statute requires an order, allowing further time, to be 
 made while the lien claim was still in force and undischarged: 
 it cannot authorize the court to revive a lien claim which by 
 force of the act has expired. No reason exists for straining the 
 construction of the act so as to extend to the lien claimant, in 
 the prosecution of hi* suit, unlimited time at the discretion of 
 this court. "It is quite possible that the section may be so con- 
 strued as to allow the owner of the land, after the expiration of 
 the year, to have from the Circuit Court an order fixing a time 
 within which the claimant shall prosecute his claim, where he 
 has prosecuted' it diligently but not successfully within the year. 
 But this is not before us for decision." 
 
 The inquiry in this case is whether the plaintiff's failure to 
 enter judgment discharged the lien. That is, was it a failure dili- 
 gently to prosecute his suit within the year, within the meaning 
 and intent of the statute. "That presents a question of fact, to 
 be found in the first instance by the Circuit Court." 
 
 "The Circuit Court would have no power to make an order that 
 the lien was discharged for want of diligence in the prosecution 
 of the suit. That question is one of fact upon which the claimant 
 is entitled to go to the jury." 
 
 We think the non-entry of the judgment under the circum- 
 stances of the case, was the course which a reasonably prudent 
 man wovdd have pursued, and that, therefore, the plaintiff has 
 not failed in diligence. 
 
 JUDGE DIXON'S OPINION. 
 
 The statute means that the claimant shall prosecute his claim 
 with such diligence as to obtain judgment within the year. 
 
 The reasonable implication is that an extension order may be 
 made when it is shown that notwithstanding diligent prosecution 
 of the claim, judgment has not been obtained within the year, 
 which may be shown after the year has ended. 
 
 The statute gives the claimant one year after issuing summons 
 in which to enter judgment; if he does not enter it within that 
 year, then he must show to the court that he has diligently prose- 
 cuted his claim, and thereupon, the court may by order direct 
 that he have furtlier time in which to enter judgment. If judg- 
 ment be not entered within the year (when there is no such 
 order), or within the time limited by an order legally made, when 
 there is one; the lieu is discharged. 
 
 After the expiration of the year or of the period limited by 
 order, the defendants interested in the land may secure conclusive
 
 104 Mechanics Lien Law, 
 
 evidence that the lien is discharged by moving to non pros the 
 claimant, as to the lien, a motion which must prevail unless the 
 claimant, by proof of due diligence, show himself entitled to more 
 time. Without an order for further time, a judgment by default, 
 entered after the year's lapse, would be, on its iface, illegal, as it 
 would have awarded a lien which by the statute had been dis- 
 charged. 
 
 But such a judgment entered within the time limited by an 
 order taken after the lapse of the year would, on face be good 
 and could be reversed only by its appearing that the order was 
 improperly allowed. This is what appears in this case and so 
 judgment should be reversed. 
 
 A careful consideration of the case justifies the following prop- 
 ositions : 
 
 PROPOSITION 1.— LAPSE OF TIME ALONE DOES NOT 
 CONSTITUTE LACHES. The failure of the plaintiff, to en- 
 ter a judgment within the year, does not discharge the lien; when 
 facts appear which show that such failure was not a lack of due 
 diligence. 
 
 PROPOSITION 2.— JUDGMENT BY DEFAULT. FACTS 
 TO OVERCOME APPARENT LACHES HOW MADE TO 
 APPEAR. When a judgment by default is taken, after the lapse 
 of a year, but within the period limited by an extension order, 
 made also after the lapse of the year, and granted, ex i>arte, on a 
 verified petition, setting forth facts which show that the delay, 
 in not entering such judgment, was the course a reasonably pru- 
 dent man would have pursued; the facts necessary to show that 
 the plaintiff's delav was not a lack of due diligence, do appear. 
 
 PROPOSITION 3.— WHAT LACHES DISCHARGES LIEN. 
 If the plaintiff's judgment is not entered within the year, because 
 of his lack of due diligence, in fact ; the lien is thereby discharged. 
 
 PROPOSITION 4.— LIEN ONCE GONE CANNOT BE RE- 
 STORED. If the lien is, in fact, discharged, by the plaintiff's 
 lack of due diligence, in prosecuting his suit, it cannot thereafter 
 be restored, or resuscitated, by any order, or action, of the 
 court. 
 
 PROPOSITION 5.— LIEN NOT DISCHARGED BY 
 LACHES DURING THE YEAR. The failure of the plaintiff 
 to take any proceeding in the suit as soon as he reasonably could 
 do so, is not such a lack of due diligence as will discharge the 
 lien, prior to the lapse of the year. 
 
 A lack of such diligence, such as the failure to bring on the 
 trial at the next term after issue joined, may, by causing a non 
 suit, indirectly operate to defeat the lien within the year, but that 
 is, of course, a different thing. 
 
 The foregoing propositions, we think, were all ruled in the case. 
 We append the following propositions and quaeres, as of interest. 
 
 PROPOSITION 6.— LACHES A QUESTION OF FACT 
 FOR THE JURY. The question wliether the plaintiff's failure 
 to enter judgment within the year is, or is not under all the
 
 Eevision of 1898, § 18. 105 
 
 circumstances of each case, a failure of due diligence, is a ques- 
 tion of fact on which the plaintiff, and the defendants interested 
 in tlie land as well, are entitled to have the verdict of a jury, 
 when there is any evidence that it was not such failure. This, 
 as we think, the case probably rules. 
 
 PROPOSITION 7.— VALIDITY OF JUDGMENT BY DE- 
 FAULT ENTERED AFTER THE YEAR WITHOUT ORDER. 
 A judgment entered by default after the lapse of the year, with 
 no extension order first taken, is bad on its face, as to the land, 
 as having been entered after the lien has presumably been dis- 
 charged. 
 
 This the dissenting opinion asserts. It may be true, as the con- 
 trary does not appear to be ruled in the case. But so also, it may 
 not be true, as there appears to be some intimations in Justice 
 Depue's opinion, that beyond allowing an order to the land owner, 
 fixing a time within which the plaintiif shall prosecute his case 
 or be non-suited, the Circuit Court cannot make an order after 
 the year has elapsed. If this be so, it would of necessity, follow 
 that a jud^rment by default, in the given case, would not be bad, 
 on its face. But assmning the contrary to be the law, theJi — 
 
 PROPOSITION 8.— EFFECT OF EXTENSION ORDER 
 TAKEN AFTER YEAR'S LAPSE. As a corollary of Proposi- 
 tion No. 6, the only office of an extension order, granted after 
 the year has elapsed, is to make a subsequent judgment by de- 
 fault appear, on its face, to have been legally entered. 
 
 This is so on the hypothesis assumed, because where a delayed 
 judgment is taken upon trial and verdict, such an order could not 
 preclude a trial of the issue of the plaintiff's laches, nor could it 
 operate as evidence to prove such issue in the plaintiff's favor. 
 
 QUAERE 1.— EFFECT OF ORDER TAKEN BEFORE 
 YEAR'S LAPSE. Does an extension order taken before the 
 year's lapse operate to preclude any question of the plaintiff's 
 laches if the judgment is thereafter entered within the time limited 
 
 thereby ? 
 
 QUAERE 2.— SECOND ORDER. Before the expiration of 
 one extension order, can a second one be taken? 
 
 QUAERE 3.— ORDER TO DISCHARGE LIEN FOR 
 LACHES. Has the Circuit Court power to make an order dis- 
 chaging the lien for lack of diligence in prosecution of the suit?^ 
 
 This is denied in the opinion of Justice Depue and asserted in 
 the dissenting opinion. It does not seem to have been ruled m 
 
 In Doty V. Auditorium Co.. 56 Atl. 720; aff. 20 Dick. 768, as in 
 Eiinis V. Eden, supra; and DeMoff v. Stockton Co.. 5 Stew. 124, it 
 was held that when a claimant has duly filed his claim, naming 
 an insolvent corporation as owner, or the receiver thereof, he need 
 not bring suit, to establish his claim, unless notified to do so ; even 
 although the receiver rejects his claim, instead of admitting it as 
 in the two cases cited. It is held that it is enough for him, m 
 such case, to present his claim to the receiver, and pursue his 
 rights by appeal to the Court of Chancer%% if they be disregarded.
 
 106 Mechanics Lien Law. 
 
 It was ako held that he must be ^iven preference in such case, 
 for his lien, although he does not, in presenting his claim to the 
 receiver, show that he has filed a lien claim, if his claim filed with 
 the receiver shows that it is for work for which he was entitled 
 to a lien, and if, in fact, he did duly file a. lien claim therefor. 
 It was also held that such claimant's right of priority attaeJies 
 to the proceeds of the sale of the premises, and is not affected by 
 the fact that they were sold clear of all encumbrances, in the ab- 
 sence of anything to show that they sold for a less price on that 
 account, 
 
 4. NOTICE TO SUE. When a claimant has been notified by 
 the owner to sue on his lien claim within thirty days, he cannot 
 escape the obligation arising from such notice, by thereafter filing 
 a new lien claim for the same debt. Bewail v. Hawkins, 17 Vroom 
 161, 166. 
 
 Amendment of lien claim and order therefor by justice 
 of supreme court. 
 
 19. At any time before judgment on a lien claim, a jus- 
 lice of the supreme court, on application of the lien claim- 
 ant, and on reasonable notice to all parties interested, may 
 order such lien claim to be amended, in matter of substance 
 as well as in matter of form, whenever it shall appear to 
 him that such amendment can be justly made ; and when- 
 ever such amendment shall be ordered, the same shall be 
 put in writing and signed by said justice, and shall be then 
 filed in the office of the county clerk, and for his services 
 under this section the said justice shall l>e entitled to a fee 
 of {fifty cents for the use of the sta^te).^ 
 
 1901, p. 329, § 1; 1S9S, p. 538, § 19; Rev. 187 J,, § U. 
 
 Prior to the amendment of 1901 the act had the words, "five 
 dollars" in place of the words in parentheses; otherwise the sec- 
 tion has remained unchanged since its first enactment in the Ke- 
 vision of 1874, as § 14. 
 
 1. Prior to the enactment of this section (1874) there was no 
 means by which a lien claim could be amended, Derrickson v. Ed- 
 wards, 5 Dutch. 468 ; Vreeland v. Boyle, 8 Vroom 346 ; Vreeland 
 V. Bramhall. 10 Vroom 1 ; and, if it was defective, in any material 
 particular, of form or substance; the whole claim failed, as a 
 lien. James v. Van Horn, 10 Vroom 353; American Brick Co. y. 
 Drinkhouse, 29 Vroom 432. It has recently been held, however, in 
 Doty V. Auditorium Co., 56 Atl. 720; s. c, aff. 20 Dick. 768, that 
 a lien claim which names an insolvent corporation as owner, m- 
 stead of the receiver, may be dealt with by the Court of Chan- 
 cery as though it had been amended, when there is no equitable
 
 Revision of 1898, § 19. 107 
 
 ground for a contrary' course; and in Vreeland Co. v. Knicker- 
 bocker Co., 68 Atl. 215, it was held, by the Court of Errors 
 and Appeals, in a case where the wrong person was named as 
 owner, that the error might be corrected either by amendment, or 
 by filing a new lien claim. 
 
 WHAT MAY BE AMENDED. The authority given by the 
 section ia to allow amendments of the lien claim. Authority to 
 amend the proceedings, in the suit to enforce the lien, must be 
 sought in § 25, post, which see. And no authority is given, 
 either by § 25 or by this section, to amend that which is neither 
 the lien claim, nor a proceeding, the amendment of which, will aid 
 in determining the controversy in suit. Hence, the endorsement 
 of the commencement of the suit, which by § 18 is directed to be 
 made on the back of the lien claim is not an amendable matter. 
 Wheeler v. Almond, 17 Vroom 161; Bewail v. Hawkins, 17 Vroom 
 166. See further, as to what can be done in case of omitted en- 
 dorsement, § 18. supra. 
 
 WHAT DEFECTS MAY BE AMENDED. The statute says 
 the lien claim may be amended "in matter of substance as well as 
 in matter of form." In James v. Van Horn, supra, an amendment 
 was allowed, where the claim had blended debts against several 
 buildings, so as, to apportion to each building the particular in- 
 debtedness incurred for it: in American Brick Co. v. Drinkhouse, 
 30 Vroom 162, the claim had failed to give the dates when tlie 
 several items were supplied and the claimant was allowed to amend 
 by filing a new bill of particulars giving such dates with the 
 requisite verification. In this latter case, the Court of Errors 
 and Appeals held, that the statute authorized an amendment which 
 did not enlarge the claim either in, the amount of the debt, the 
 estate to be charged, or the persons affected ; but we think it clear, 
 that the court did not intend to express the opinion that the power 
 of amendment was limited to such amendments only as was the 
 one there allowed. The error of naming the wrong person as own- 
 er is imdoubtedly amendable. Doty v. Auditorium Co., supra; 
 Vreeland Co. v. Knickerbocker Co., 68 Atl. 215. 
 
 WILFUL MISSTATEMENTS in the lien claim, will not be 
 permitted to be amended, as, where the claimant has knowingly 
 named, as builder, one who was the employer of the actual builder. 
 Bartley v. Smith, 14 Vroom 321. 
 
 WHEN AMENDMENTS MAY BE ALLOWED. The words 
 of the statute are clear. A defective lien claim is not a nulity, 
 and may be amended, at any time before judgment is entered; 
 although the application to amend is delayed until after the expi* 
 ration of the time limited by § 18 for filing a claim. American 
 Brick Co. V. Drinkhouse, supra. 
 
 AUTHENTICATION OF AMENDMENTS. The amended 
 lien claim need not be sworn to: all that is required is that the 
 amendments be put in writing and signed by the justice. Ameri- 
 can Brick Co. v. Drinkhouse, 29 Vroom 432. 
 
 ADVISORY OPINION. An application for amendment can- 
 not be certified ro the Supreme Court for its advisory opinion.
 
 108 Mechanics Lien Law. 
 
 There is no authority for such a proceeding, either at common 
 law or by force of §§ 247 and 296 of the Practice Act. In re Mar- 
 garum, 26 Vroom 12; Marcus Sayre Co. v. Moore, 19 N. J. L. J. 
 110. See, however, the case of Bartley v. Smith, supi*a, in which 
 the question, whether an amendment to the lien claim, as well 
 as to the sunuuons, pleading, etc., ought to be allowed, was certi- 
 fied to the Supreme Court, for its advisory opinion which that 
 court gave; although, perhaps, without considering the question 
 of its power to do so. 
 
 EEVIEW OF OEDEK. It is to be noticed that the order al- 
 lowing an emendment of the lien claim (other than an 
 order altering the description of the curtilage) is not 
 one which can be made in the suit, and that, there- 
 fore, it is only open to collateral attack in that suit, 
 that is, to attack for that the justice was without jurisdiction 
 to make it. If it is desired, on other grounds, to review the de- 
 cision allowing such order, that can only be done by proper pro- 
 ceedings, presumably by certiorari, directly taken for that pur- 
 pose. American Brich Co. v. Drinkliouse , 30 Yroom 462. 
 
 Amendment of description of curtilage by justice of Su- 
 preme Court, and rule therefor. 
 
 20. At any time before the entry of final judgment in a 
 suit under this act, it shall be lawful for a justice of the 
 supreme court, upon the application of either the owner, 
 builder or lien claimant, and upon reasonable notice to the 
 others to alter the description of the curtilag'e as set forth 
 in the lien claim, and, in the fonn of a nile of court, in the 
 suit, to determine the true size and description of the cur- 
 tilage ; and in all subsequent proceedings in such suit, or in 
 relation thereto, the curtilage so determined shall be treated, 
 as if the same had l>een described in the original lien claims, 
 and such justice, for his services under this section, shall 
 be entitled to a fee of two dollars, which shall be paid by the 
 applicant, and may be taxed' with the costs in such suit; 
 (provided, tJud the nmendiments. authorized in this and in 
 the newt preceding section., shalf noi affect the rights of any 
 bona fide purchaser or mortgagee, acquired hetwre)h the time 
 of filing the original lien cXaim.\ and that of filing said 
 amendmenis) .^ 
 
 1898, p. 538, § 20; 1868, p. 369, § 2; Rev. 1874, § 15- 
 
 The words in parentheses were added by the Revision of 1874; 
 otherwise the section has remained the same as first enacted in 
 
 1868.
 
 Revisio:s- of 1898, § 21. 109 
 
 1. As to what is the proper curtilage, see the next section (21). 
 
 A DEFECTIVE DESCRIPTION, which includes too much 
 land, does not render the lien claim bad. In such a case, prior 
 to the enactment of this section, the proper curtilage could have 
 been settled at the trial, as one of the facts in issue; and, if a 
 less curtilage, than the one described, was found to be proper, 
 judgment was to be given accordingly. Edwards v. Derrichson, 4 
 Dutch. 39; s. c, 5 Dutch. 468. Such is presumably, still the 
 rule, when no application to alter the description of the curtil- 
 age is made; and, if it be found that the plaintiff is entitled to 
 a special judgment against the lands described in the claim ; such 
 finding cannot be attacked, on error, unless it affirmatively ap- 
 pears that it was erroneous in point of law, James v. Van Horn, 
 10 Vroom 353. As to the possibility of attacking a judgment, in 
 a collaterial proceeding, on the ground that the curtilage is ex- 
 cessive, or erroneous, see post, under § 24. 
 
 EFFECT OF ORDEE, ALTERING DESCRIPTION OF 
 CURTILAGE. If, on application, under this section, an order 
 is made altering the description of the curtilage ; the extent of 
 the curtilage, so far as it could be in issue on the trial, is thereby 
 determined (and the same may be true if the justice, on applica- 
 tion and hearing, refuses to alter the description, see Gerard v. 
 Birch. 1 Stew. 317); and such determination (being, by the ex- 
 prc-ss words of the statute, "a rule of court in the suit," and so 
 reviewable on writ of error) can be reviewed only when it was 
 erroneous, in point of law. American Brick Co. v. DrinMouse, 
 30 Vroom 402. As to the possibility of attacking a judg-ment, in 
 a collateral proceeding, on the ground that the curtilage is ex- 
 cessive, or erroneous, see post, under § 24. 
 
 OMISSION OF DESCRIPTION OF CURTILAGE. It is 
 questionable whether this section covers the case of a lien claim 
 which entirely omits to describe any curtilage. It seems to con- 
 template the case of a mistaken description, not that of an omitted 
 one, see American Brich Co. v. Drinkhouse, 29 Vroom 432. The 
 quaere is, is a lien claim amendable if it omits to describe any 
 curtilage, and, if it be amendable, is it amendable under § 19 
 or under this section'^ The alteration of the description of the 
 curtilage is to be a rule of court in the suit; the order allowing 
 an amendment is not such a rule. 
 
 Extent of curtilage defined, when not otherwise fixed 
 by enclosure, usual building lot and map, etc. 
 
 21. When the curtilage or lot on which the build ing- is 
 erected shall not be surrounded by an enclosure separating 
 it from adjoining lands of the same owner, then the lot on 
 which the building lien shall extend, shall be such tract as 
 in the place of its location is usually kno^vn and designated 
 as a building lot, and bounded by the lines laid down for 
 its boundaries on any map made for the sale of it or on
 
 110 Mechanics Lien Law. 
 
 file in any public office, to lay out in lots the tract including 
 it, and in cases where no such map exists, such lot may be 
 designated by the claimant in the lien claim, but in no case 
 shall the same exceed half an acre, or include any building 
 not used and occupied with, or intended to be used and 
 occupied with, the building for the cost of which the lien 
 is claimed.^ 
 
 189S, p. 638, § 21; 1863, p. 275, § 3; Rev. lS7Jf, § 16. 
 See also, 1868, p. 369, § 1. 
 
 This section is the same as it was first enacted in 1863 and has 
 so stood ever since. 
 
 1. WHAT IS THE PEOPER CURTILAGE. Prior to the 
 enactment of this section it was decided that the curtilage, in- 
 tended by the act to be subject to the lien, was so much land as 
 might be necessary for the convenient and beneficial enjoyment 
 of the building, on which the work was done; and that, there- 
 fore, its proper extent, in each case, would be a question of fact, 
 which must be taken to have been correctly settled, on the trial, 
 unless it appeared on the record that an error in law in that 
 behalf had been made. Derrickson v. Edivards, 5 Dutch. 468; 
 and see also, Van Dyne v. Van Ness, 1 Halst. Ch. 485 ; and also, 
 note to § 20, supra, as to settlement of curtilage on an applica- 
 tion to alter the description thereof. 
 
 The enactment of this section limited the curtilage to the usual 
 building lot, when there is a map; and to half an acre, when there 
 is not; but this limitation applies only in a case falling within 
 the scope of the act. In Gerard v. Birch, 1 Stew. 317, it was 
 said (per Runyon Ch.) that the limitation of the curtilage to 
 half an acre applies only when there has been no description of 
 the curtilage by the owner, and when the means of designation 
 by map do not exist. 
 
 In Federal Trmt Co. v. Guigues, 74 Atl. 652, it is said (by V. C. 
 Howell) that, when § 21 does not apply, the Court of Chancery, 
 in a foreclosure case, will determine the proper curtilage by eon- 
 fining it to so much of the land as is necessary to the convenient 
 and beneficial enjoyment of the building on which the claimant's 
 work or materials were bestowed. 
 
 The scope of the act is limited to the case where the owner 
 has not surrounded the lot built upon with an enclosure separat- 
 ing it from his adjoining lands, James v. Van Horn, 10 Vroom 
 353 ; Gerard v. Birch, 1 Stew. 317 ; and so, if the owner has en- 
 closed a large tract with a fence, but has other adjoining lands, 
 the whole of such large tract may be subjected to a lien for a 
 
 building erected on it. „ ^ . i • i .i. 
 
 Therefore, in James v. Van Horn, 10 Vroom 363, m which the 
 judgment established a lien on the whole of a tract of 50 acres, 
 which was surrounded by a fence, as it did not appear, on the re-
 
 Revision of 1898, § 22. Ill 
 
 cord, whether the owner had adjoining lands or not; it was held, 
 that the propriety of the judgment could not be questioned, on 
 writ of error; because the facts, necessary to show that the case 
 was one which fell within the scope of the act (in that case, 
 that owner had no ajoining lands), must have been found, or in- 
 disputably have appeared, in order to make it apparent, on the 
 record, that an error in law had been committed in giving the 
 judgment, and the record showed no such finding or facts. 
 
 Apportionment of claim among several buildingB. Lien 
 claim in such case to contain what. Suits in such case 
 how to be brought. Release of one building, not to im- 
 pair lien against others. 
 
 22. Whenever any person or persons shall hereafter fur- 
 nish any material or perform any labor, for the erection 
 and construction of two or more buildings, where such build- 
 ings are built and constructed by the same person or per- 
 sons, it shall be lawful for the person or persons so furnish- 
 ing such materials or performing such labor to divide and 
 apportion the same among the said buildings, in proportion 
 to the value of the materials furnished to and the labor 
 performed for eacli of said buildings, and to file with, his, 
 her or their lien claim therefor a statement of the amount 
 so apportioned to each building, in lieu of the bill of par- 
 ticulars required by the sixteenth section of this act, which 
 said lien claim when so filed may be enforced under the 
 provisions of this act in the same manner as if said mate- 
 rials had been furnished and labor performed for each of 
 said buildings separately ; and if the person or persons who 
 shall have furnished such materials or performed such labor 
 shall have released his or their lien claim against any one 
 or more of such buildings, or if any one or more of such 
 buildings shall have been built and constructed under a 
 contract in writing duly filed, pursuant to this act, such 
 release or such filing of a contract shall not affect or impair 
 the lien or claim of such person or persons against the build- 
 ing or buildings not so released, or not so built and con- 
 structed by contract, nor the lots or curtilages whereon the 
 same are erected.^ 
 
 1898, p. 538, § 22; 1873, p. 71; Rev. 187 U, § 17. 
 
 This section has remained unchanged since its first enactment 
 in 1873.
 
 112 Mechanics Lien Law. 
 
 1. It was held in Johnson v. Algor, 36 Vroom 363, that the 
 statute does not contemplate that there shall be a separate and 
 distinct lien claim filed for each one of the buildings; there 
 should be one lien, claim filed, containing a statement of the ap- 
 portionment of the debt among the several buildings according 
 to the statute. But when proceedings are begun to enforce 
 a lien, in a case where an apportionment is necessary, there must 
 be a separate summons declaration, etc., and judgment and exe- 
 cution against each building and its curtilage. 
 
 But in Culver v. Liehernuan, 40 Vroom 341, it was held, by the 
 Court of Errors and Appeals, that when a single debt exists for 
 the erection of several buildings, the lien therefor is to be en- 
 forced by a single lien claim, a single suit and a single declaration 
 in which the debt is to be apportioned among the several build- 
 ings and curtilages according to the respective liability of each; 
 and Johnson v. Algor, so far as it held otherwise, was overruled. 
 In delivering the opinion in Culver v. Liehennan. Justice Fort, 
 reads the words of the section : "Where such buildings are built 
 and constructed by the same person or persons," as referring only 
 to the contractor, and not to the owner, or owners; and hoRs 
 that a careful reading of §§ 16, 22 and 24 shows that the stat- 
 utory intent is to give a single suit against the builder, upon a 
 single indebtedness, and to bring into that suit, by the lien claim, 
 summons and declaration, the builder and all persons who, as 
 owners or mortgagees, have any interest in the property against 
 which a special judgment is sought. To that end, it seems, that, 
 in a proper case, the plaintiff may in one suit join, as defendants, 
 different owners of several tracts. The lien claim, as weU as 
 the declaration must, of course, apportion the claim and describe 
 the several buildings and curtilages. 
 
 If the lien claim fails to make the necessary- apportionment, 
 and to designate specifically the amount claimed on each build- 
 ing it will constitute no encumbrance on the premises. Morns 
 Cointy Bank v. Rockaway. etc.. Co., 1 C E. Gr. 150; but such 
 a defect may be amended, at any time before judgment. James 
 V Van Horn. 10 Vroom 353; and see § 19, supra; but, if not 
 amended, the judgment would be subject to collateral attack. 
 Morris County Bank v. Rockaway, etc.. Co., supra. 
 
 It was questioned, in the case last cited, whether such a lien 
 claim would be valid, in case all the buildings are on the same 
 tract; but, as all the buildings were, in fact, on different tracts, 
 no opinion was expressed on the question adverted to, although it 
 was intimated by the Chancellor (Green) that such a claim would 
 be bad, unless the buildings upon the same tract, were withm the 
 same curtilage and mere appurtenances of a mam building, ihis 
 seems to have been otherwise considered in Johnson v. Algor, 
 
 above cited. ^ .^ 4. +^„„ 
 
 Where several buildings (such as a row of apartments or tene- 
 ments) are erected for a single owner upon what is really a sin- 
 gle plot of land, it may be questionable whether there is any 
 need of an apportionment at all. As this is a question likely to
 
 Revision of 1898, § 23. 113 
 
 be presented frequently in practice, the writer ventures the ad- 
 vice that the only safe course is to make such apportionment 
 whenever it is possible to do so; since each such tenement is 
 capable of being separately conveyed or encumbered; and, there- 
 fore, the owner is entitled to have the claim apportioned so as 
 to preserve to him the valuable right, freely to deal with his 
 property as severable parcels, if he chooses. It may not be en- 
 tirely correct, but it may be pi*actically so, to say that the pos- 
 sibility of allotting a definite curtilage to each tenement will 
 determine the necessity of making an apportionment. By this 
 test, a four-story building with an apartment on each floor is in- 
 divisable, but a row of tenements is not. A building may be di- 
 vided by a vertical, but not by a horizontal, plane, for the purpose 
 of such apportionment. 
 
 Suit on lien claim may be in the Circuit or District Court. 
 Parties. Form of summons. Service of summons. Sub- q 
 
 stituted service of summons, and aflSdavit in such case. / 
 
 23. When a claim is filed aoreeably ro the provision^^ ot j 
 
 this act, upon any lien created thereby, the same may be \^v 
 enforced by suit, in the circuit court of the county where A\ 
 such building is situated,^ which suit shall be commenced "^ 
 by summons against the builder and the owner of the land 
 and building- * and every person, holding a mortgage of 
 reco^'d against the property affected hy said claim whose 
 moiigage mould he cut off hy a sale under said claim^ * in 
 the following or like form : 
 
 Summon A. B. builder, and C. D. owner (or if the owner 
 contracted the debt, A. B. builder and owner), * and E. F. 
 mortgagee (if th&re he a mortgage or mortgages) " to appear 
 before the Circuit Court in and for the County of , 
 
 at , in the said County, on the day of 
 
 , That the said A. B. (the builder) may answer 
 unto G. H. (the claimant) of a plea (as in an action uix>n 
 contract) for which the said G. H. claims a building lien on 
 certain buildings and lands of said C. D. (describing the 
 building and lands as in the claim on file) : *and upon 
 which said E. F. holds a mortgage of record. * 
 
 And the said summons shall be directed, tested, and made 
 returnable,* and mav be served and returned in the same 
 manner as other writs of summons ; and such summons may 
 be seiwed upon the defendants, or either of them, in any 
 county of this state, by the sheriff thereof, and for this pur- 
 pose the same or a duplicate thereof, may be issued to such 
 
 8
 
 114 Mechanics Lien Law. 
 
 sheriff ; and if any defendant cannot be found in this state, 
 it may be served upon him by affixing a copy thereof npon 
 such building, and also by serving a copy on such defendant 
 personally, or by leaving it at his residence ten days before 
 its return, which shall be deemed actual service, or in case 
 such defendant resides out of this state, by affixing a copy 
 on such building and sending a copy by mail, directed to 
 him at the post office nearest his residence, or in case his 
 residence is not known to the plaintiff, then by affijxing a 
 copy to such building, and by inserting it for four weeks, 
 once in each week, in some newspajDcr of this state, published 
 or circulating in the county where such building is situate, 
 either of which shall be legal seiwice ; and when an affidavit 
 shall be made and filed of the facts authorizing and consti- 
 tuting any such service, not made by a sheriff or officer, the 
 suit may proceed against the party so served as if such 
 summons had been returned seiwed by the sheriff.^ 
 
 1898, p. 538, § 23; 1853, p. 437, § 8; Rev. 1874, § 18; 
 1884, p. 260, § 1. 
 
 The words between the asterisks are inserted in the Revision 
 of 1898, because of the provisions of the act of 1884, which was 
 the first enactment which made it necessary or proper to make 
 mortgagees of record parties to lien claim suits; otherwise the 
 section has remained the same as enacted in 1853. 
 
 By the act of 1910, p. 229, approved April 8th, the fore- 
 going section was amended to read as follows: 
 
 When a claim is tiled agi-eeably to the provisions of this 
 act upon any lien created thereby, the same may be enforced 
 bv suit in the Circuit Court of tlie countv where such build- 
 ing is situated, or in any District Court of the county (pro- 
 viding the claim does not exceed five hundred dollars) where 
 such building is situated, and when the suit is brought in a 
 District Court the practice shall be as nearly as possible the 
 same as now provided, or may hereafter be provided by law 
 in District Courts in action on contracts, which suit shall be 
 commenced by summons against the builder and the owner 
 of the land and building, and every person holding a mort- 
 gage of record against the property affected by said claim, 
 whose mortgage would be cut off by a sale under said claim^ 
 in the following or like fonn : 
 
 Summon A. D., builder, and C. D., owner (or if the owner
 
 Revision of 1898, § 23. 115 
 
 contracted the debt, A. B., builder and owner) and E. F., 
 mortgagee (if there be a mortgage or mortgages), to appear 
 before the Circuit Conrt (or District Court of the city of 
 
 , or' of the district , as the case may be), in and 
 
 for the county of , at , in the said county, 
 
 on the day of , that the said A. B.) (the builder) 
 
 may answer unto G. H. (the claimant) of a plea (as in an 
 action upon contract) for Avhich G. H. claims a building lien 
 on certain buildings and land of said C. U. (describing 
 the building and lands as in the claim on file), and upon 
 which said E. F. holds a mortgage of record. 
 
 And the said summons shall bo directed, tested and made 
 returnable, and may be served and returned in the same 
 manner as other writs of summons in the court from which 
 issued, and such summons may be served upon the defendant, 
 or either of them, in any county of this State by the sheriff 
 thereof, if brouglit in the Circuit Court, or by a constable or 
 sergeant-at-arms, if the suit is brought in any District Court 
 of any county ; and for this purpose the same, or a duplicate 
 thereof, may be issued to such sheriff, or constable, or ser- 
 geant-at-arms, as the case may be, and if the defendant can- 
 not be found in this State, it may be served upon him by 
 affixing a copy thereof upon such buildings, and also by serv- 
 ing a copy on such defendant })ersonally, or by leaving at 
 his residence ten days before its return, which shall be 
 deemed actual service, or in case such defendant resides out 
 of this State, by affixing a copy on such building and sending 
 a copy by mail, directed to him at the post office nearest his 
 residence, or in case his residence is not known to the ]>lain- 
 tiff, then by affixing a copy to such building and by inserting 
 it for four (4) weeks, once in each week, in some newspaper 
 of this State published or circulating in the county where 
 such building is situated, either of which shall l>e legal ser- 
 vice ; and when an affidavit shall be made and filled of the facts 
 authorizing and constituting any such service not made by a 
 sheriff or officer, the suit may proceed against the party so 
 served as if such summons had been returned served by the 
 sheriff or other officer. 
 
 By the further act of 1910, p. 225, approved April 18th, it 
 was enacted as follows : 
 
 A supplement to an act entitled "An act to secure to mechanics
 
 116 Mechanics Lien Law. 
 
 and others payment for their labor and materials in erecting any 
 building" (Revision of 1898). 
 
 BE IT ENACTED by the Senate and General Assembly of the 
 State of New Jersey: 
 
 1. Any final judgment of any District Court under the pro- 
 vision of the act to' which this is a supplement shall be docketed 
 in the Circuit Court of that county by the party recovering the 
 same or by his executors, administrators or assigns in the man- 
 ner hereinafter directed. 
 
 2. The clerk of every Circuit Court shall provide and keep a 
 docket, in which shall be entered, upon complying with the pro- 
 visions of this act, all such final judgments from any District 
 Court. 
 
 3. When a judgment is obtained in any District Court under 
 the provisions of the act to which this act is a supplement, in- 
 cluding costs, the clerk of such Circuit Court of the county, upon 
 filing in his office a statement signed by the clerk of the District 
 Court, under the seal of the court, which statement shall con- 
 tain the name of the court, the name of the parties, and whether 
 judgment be general against the builder or against the building 
 and land only, or both, the amount and date of judgment, and also 
 an oath or affirmation of the party, his or their attorney or agent, 
 that at the time of filing such statement a certain amount is still 
 due thereon, stating the amount, shall enter in a docket provided 
 for that purpose a transcript of such judgment in words at length 
 containing the name of the District Court in which the judgment 
 was obtained, the names at length of the parties to said judgment, 
 the style of the action, the date of the judgment, the amount 
 recovered with costs, the substance of the return of the constables 
 or sergeant-at-arms, and the amount stated to be due in the affi- 
 davit. The fees of the clerk of the Circuit Court for filing such 
 statement shall be two dollars, and to the clerk of the District 
 Court for certifying the same, fifty cents. 
 
 4. Such judgment shall, from the time of such docketing in 
 the Circuit Court, operate as a judgment obtained in a suit or- 
 iginally commenced in said court, and satisfaction thereof may 
 be entered in the same manner and upon the same evidence as 
 is now provided by law in case of judgments rendered in the 
 Circuit Court under this act, and execution may issue thereon 
 out of the Circuit Court which shall be of the same effect as to 
 the property of the judgment debtor, either personal or real, as 
 as if issued on a judgment originally obtained in such Circuit 
 Court upon a suit commenced therein. 
 
 5. After any final judgment of any District Court under the 
 provisions of the act to which this act is a supplement, no exe- 
 cution shall issue thereon out of any District Court, nor shall 
 any proceedings be had thereon except the due and proper grant- 
 ing: of a new trial, an appeal or certiorari, no judgment shall be 
 allowed to be docketed after the granting of a new trial, an 
 api)eal or certiorari and pending the determination thereof. 
 
 6. Every judgment docketed as herein directed may be revived
 
 Revision of 1898, § 23. 117 
 
 by scire facias in the Circuit Court in the same mamier, in 
 like eases and with the like effect as if said judgment had been 
 obtained in a suit commenced in that court. 
 
 7. The clerk of the Circuit Court shall make a complete alpha- 
 betical index to the docket in which said judgments are to be 
 entered, and said docket shall be a public record, to which all 
 persons desiring to examine the same shall have access. 
 
 8. If any judgment recovered in any District Court shall be 
 removed by appeal or certiorari, and the necessary bond be per- 
 fected, and such judgment shall, either before or after such re- 
 moval, be docketed as herein provided, execution from the Circuit 
 Court in which said judgment is docketed shall be stayed and 
 suspended until the final determination of such appeal or cer- 
 tiorari. 
 
 9. If any judgment, docketed as hereinbefore provided, shall 
 be reviewed upon certiorari or appeal, and a duly certified tran- 
 script of the judgment of the court wherein such appeal or cer- 
 tiorari may have been determined shall be delivered to the clerk 
 of the Circuit Court of the county where such judgment is dock- 
 eted, it shall be the duty of the said clerk to file the same in 
 his office, and enter in the margin of the docket opposite the entry 
 of said judg-ment, in short form, the substance of such detemiina- 
 tion upon the appeal or certiorari. 
 
 10. All acts and parts of acts inconsistent herewith are hereby 
 repealed, and this act shall take effect immediately. 
 
 The following notes were prepared before these new enactments 
 were adopted : 
 
 1. THE CLAIMANT'S DEBT MUST BE DUE, before his 
 suit is begun. See § 1, note 3 ; § 16, note 1. 
 
 In a suit to enforce a lien claim, as in any other, the plain- 
 tiff's right of action must be complete before he begins. Titus 
 V. Gunn, 40 Vroom 410. See the notes to form of Building Agree- 
 ment, post, as to when such right is complete. 
 
 ''There is nothing occult or mysterious about an action upon 
 a mechanic's lien claim, so far as the builder is concerned, it 
 is an ordinary action in personam. Combined with it, however, is 
 aji action, qiuisi in rem, to establish and enforce a lien upon cer- 
 tain defined interests in the building and land in question." 
 Vreeland Co. v. Enickerhocher Co., 68 Atl. 215. 
 
 As to the necessity of prosecuting suit with DILIGENCE, see 
 § 18 and notes. 
 
 JURISDICTION of the Circuit Court, is exclusive in me- 
 chanic's lien cases, and the act of 1892, p. 224, authorizing the 
 transfer of causes from the Circuit Court to the Common Pleas 
 and the trial thereof by the latter as if the same had originally 
 been brought in the latter court, gives the Common Pleas no 
 jurisdiction in a lien case. Coles v. First Baptist Church, 30 
 Vroom 311. 
 
 2. WHO IS OWNER. The person made defendant, as owner, 
 must have a legal estate in the lands, either in fee, for life, or
 
 118 Mechanics Lien Law. 
 
 ^ term for years, Ayers v. Revere, 1 Dutch. 474; Coddington v. 
 Beehe, 2 Vroom 477; Corcoran v. Jones, 12 N. J. L. J. 38; Tom- 
 kins V. Horton, 10 C. E. Gr. 284; and the lands cannot be made 
 to answer unless the owner of such an estate in them is made 
 a defendant as owner. Macintosh v. Thurston, 10 C. E. Gr. 242; 
 and see cases last cited. See also under § 1, note 5; § 16, note 4. 
 
 CHANGE OF TITLE. The owner at the time the lien claim 
 is filed is the projier person to be made party defendant as owner, 
 even although the property has been conveyed to him since the 
 work was begun, Edivards v. Derrichson, 4 Dutch. 39; 5 Dutch. 
 4G8; Robins v. Bwnn, 5 Vroom, 322; Slingerland v. Lindsley, 1 
 N. J. L. J, 115; Erdman v. Moore, 29 Vroom 445; TompJcins v. 
 Horton, 10 C. E. Gr. 284; and the after proceedings must be 
 continued in the same name notwithstanding any change in the 
 title after the lien claim is filed. Purchasers, after the lien claim 
 is filed, are purchasers pendente lite, and take title subject to the 
 issue of the pending suit. If a party acquiring: a right after lien 
 tiled, desires to contest the lien, he must apply for leave to defend 
 by appropriate plea in the name of the owner when the lien was 
 filed. Edwards v. Derrickson, 4 Dutch. 39; Ennis v. Eden, etc., 
 Co., 48 Atl. E. 610. 
 
 A conveyance of the land by the owner to another as collateral 
 security, for the payment of a debt does not constitute a change 
 in the ownership of the lands. Gordon v. Torrey, 2 McCarter, 112. 
 
 A VARIANCE as to the name of the parties, as between the 
 lien claim and the summons was formerly a serious matter, Cor- 
 nell V. Matthews. 3 Dutch. 522; Vreeland v. BoyU, 8 Vroom 346; 
 and in spite of the power of amendment given in §§ 19 and 25, 
 it may be so yet. See § 16, note 8; § 19, note 1; and § 25. 
 
 EQUITABLE ESTATES, as to these, see § 1, note 5. 
 
 TEKMS FOR YEARS, see Corcoran v. Jones, 12 N. J. L. J. 
 ^8; and supra, § 16, note 4; § 7, and notes. 
 
 ESTATE BY ENTIRETY. If the attack is against only the 
 estate of the husband, the lien claim should name both as owners, 
 but the suit should be against the husband only, as owner. Wcish- 
 hvrn x\ Burns. 5 Vroom 18. On a suit now, to enforce a lien 
 for a building erected on lands held by such a title, where the 
 husband contracts for the erection in his own name only, the entire 
 fee is, perhaps, liable to the lien. See § 2, note 1, and § 13, note; 
 if the contract is made by the woman only, only her estate would 
 be liable. See § 7. 
 
 In an APPORTIONMENT case there must be but one suit. 
 Culver V. Lieberman. 40 Vroom 341. See §§ 22 and 16, and notes 
 to § 22. 
 
 3. MORTGAGE DEFENDANTS. Prior to the enactment of 
 the provision for making a mortgagee a party defendant, by the act 
 of 1884, a mortgagee could not be made a party to the proceed- 
 ings, Tompkins v. Horton, 10 C. E. Gr. 284; Central Trust Co. 
 V. Bartlett, 28 Vroom 206 ; and only mortgagees, whose mortgagee 
 have been recorded since the lien attached (the commencement of 
 the building), can be made parties to the suit mider that act.
 
 Revision of 1898, § 23. 119 
 
 Central Trust Co. v. Bartlett, supra. The effect of omitting to 
 make such mortgagees defendants is, of course, that the ensuing 
 judgment will not be conclusive as to them. Cox v. Flanagan, 2 
 Atl. 33. 
 
 As to when the lien attaches, see §§ 14, 15 and 28. 
 
 A person who has a deed absolute on its face, but intended as 
 a mortgage is, in equity, a mortgagee, Gordon v. Toii-eij, 2 McCart. 
 112; and if the facts are known to the claimant, should, perhaps, 
 be made a party in the lien suit, as such. 
 
 Mortgagees who acquire their interests after the lien claim is 
 filed, and before suit is begun, ought also, perhaps, to be made 
 parties. It may be that they would be cut off, as purchasers pen- 
 dente lite, without being so brought in, Ennis v. Eden, etc., Co., 
 47 Atl. R. 610; but the words of the statute are broad enough 
 to include them, and Ennis v. Eden, etc., Co., in its circumstances, 
 covered only the case of purchasers, not mortgagees. 
 
 4. The summons need not actually be sealed and attested by 
 the clerk, the attorney may do both these things, James v. Van 
 Horn, 10 Vroom 353 ; but the attorney must see that the time of 
 issuing the summons is endorsed by the clerk upon the lien claim 
 within four months from the issuance thereof, or, in case there 
 has been a notice to sue given by the owner to the claimant, then 
 within thirty days after receipt of such notice. See § 18, note 
 2; and also Cwner v. Cummings, 13 Stew. 145. 
 
 5. SERVICE OF PROCESS. The statute contemplates three 
 modes of service: (a) ordinary due service upon the defendant 
 in person, or at his place of abode within the State; (b) actual 
 sei-vice outside of the State either upon the defendant in person 
 or at his place of abode; (c) constructive, or legal, service out- 
 side of the State by mailing and publication. In the last two 
 modes, a copy of the summons is to be affixed also to the building. 
 Since the fourteenth amendment of the Constitution of the United 
 States, as construed in Pennoyer v. Neff. 95 U. S. 714, no valid 
 judgment in personam can be entered against a defendant served 
 only in the second and third modes ; although, before that amend- 
 ment, such judgment would have been held good within the 
 State, as the legislature, on the passage of the original of this 
 section in 1853, intended should be the case. 
 
 But such judg-ment in personam may be entered, and will be 
 valid, against a defendant builder, who, although not served duly 
 within the State, voluntarily appears and, by pleading the general 
 issue, submits himself to the jurisdiction of the court, in the suit 
 to enforce a lien claim. Smith v. CoUotij. 40 Vroom 365 (E. & 
 A.) ; Culver v. Lieherman, 40 Vroom 341. 
 
 DEFECTIVE SERVICE, may be cured by taking an order for 
 a new summons and making a good service thereof. Mutual Ben- 
 efit, etc., Co. V. Eoxvand, 11 C. E. Gr. 389. In the case last cited, 
 it was held, that such a new sununons would be valid and effec- 
 tual to preserve the lien, even if issued later than the statutory 
 period for beginning suit (then one year, now four months, after
 
 120 Mechanics Lien Law. 
 
 the last item of the claim) ; and it could, probably, be taken now 
 at any time before the plaintiff would be precluded for laches in 
 prosecuting his suit. See § 18, note 3. See also under § 24, 
 note 6. 
 
 FOEM OF EETUEX. If the summons bears the return, that 
 it was duly served on the defendants, builder and owner, but the 
 manner of service does not appear, it is a good return, as against 
 the owner (and undoubtedly as against mortgagees also) ; since 
 the builder is the only party defendant who can be affected by 
 the manner of service. James v. Van Horn, 10 Vroom 353. 
 
 If the return of SEEVICE OX A COEPOEATION, defend- 
 ant as both builder and owner, show that it was served on the 
 secretary without showing that the president, or other head offi- 
 cer, could not be found; it is not a good return; but, after 
 judg-ment by default, and motion to open default denied, it can- 
 not be objected to for the first time, on writ of error ; for it is to 
 be presumed that the defect might have been cured by proof, if the 
 objection had been made at the Circuit. Ennis v. Eden, etc., Co., 
 48 Atl. E. 610. 
 
 Declaration, Form ; recitals ; averment that debt is a 
 lien, etc. ; schedules. Practice, pleadings ; defenses. Effect 
 of special plea that building and lands are not liable. 
 Priorities; verdict; judgment — general or special or both. 
 Effect of special judgment. Surplus proceeds on sale on 
 execution. 
 
 24. The declaration in sncli case shall, after reciting that 
 the owner and builder {and other defen<h)its) were sum- 
 moned, and how served, [and why such other defendants were 
 made defendants) ,^ be against the builder, and in the same 
 form as in other actions upon contract, and shall conclude 
 with an averment that said debt is, by virtue of the provi- 
 sions of this act, a lien upon such building and lot, describ- 
 ing the same as in said claim ;^ and to said declaration a 
 schedule may be annexed, and the practice, proceedings and 
 pleadings thereon shall be conducted, and the judg-ment 
 entered, as in suits in said circuit court, to recover money 
 due on contract;^ and all or any of said defendants may, 
 jointly or severally, have any defence or plea to the same 
 that might be had by the builder to any action on said con- 
 tract without this act; and in addition thereto, the owner 
 (or mortgagee) may plead that said building or land are not 
 liable to said debt,^ and in such case it shall be necessary for 
 the plaintiff, to entitle him to judgment against the build- 
 ing and lands, to prove that the provisions of this act, re<jui-
 
 Revision of 1898, § .24. 121 
 
 site to constitute sucli lien, have been complied with ; (and 
 any defendant mortgagee^ may have a further plea that said 
 lien claim is subject to* such mortgagee's lien, and the judg- 
 ment in atiy such case shall determine the priority of the 
 liens of the plaintijf and each of said defendants, and any 
 judgment or proceeding under the same shall not affect the 
 lien of any of said defendants wlwse lien shall he determined 
 to he paramomit to that of the plm7itiff) f and in case a 
 verdict be rendered or judgment be given against the builder 
 only, judgment shall be given for the landowner, with costs 
 against the plaintiff; and in case judgment be given for the 
 plaintiff, it shall be entered against the builder when he was 
 actually served with the summons, generally, and with costs 
 as in other cases ; and when only legal service of the summons 
 has been made, judgment against the o\viier and also against 
 the builder, shall be specially for the debt and costs, to be 
 made of the building and lands in the declaration described ; 
 and in case no general judgment is given against the builder, 
 such proceedings or recovery shall be no bar to any suit for 
 the debt, except for the part thereof actually made under 
 such recovery;*^ (and if the proceeds of the sale of the huild- 
 ings or lands under any such judgment shall be more than 
 sufficient to* pay the judgment of said plaintiff, and any con- 
 current meclianics' lien claims entitled to payment ottt of the 
 proceeds of said sale under the provisions of this act, any 
 surplus shall he distributed hy the court out of ivhich the 
 execution issued tO' the said defendants holding liens, subject 
 to that of the plaintiff, according to the priority of their 
 respecti'V& liens as determined in said judgment). 
 
 1898, p. § 24; 185S, p. Jf37, § 9; Rev. 1874, § 19; 
 1884, p. 260, § 2. 
 
 The words in parentheses were inserted, because of the act of 
 1884, in the Revision of 1898. The act of 1884 had not formally 
 changed the reading of the section, as enacted in 1853, to that of 
 the present draft; but its effect was precisely the same as if it 
 had. The original reading of the section, as enacted in 1853, with 
 some slight, and merely verbal changes made in the Revision of 
 1874, may be seen by reading it, as it now stands, without the 
 words in parentheses. 
 
 1. VARIANCE. There must not be a variance between the 
 claimants named in the lien claim and those named as plaintiffs in 
 the suit. Vreeland v. Boyle, 8 Vroom 346.
 
 122 Mechanics Lien Law. 
 
 RECITAL OF SERVICE. The manner of service of tlie sum- 
 mons is material only in determining whether there can be a gen- 
 eral judgment, or not, against the builder. The owner, therefore, 
 cannot, after plea, object on such ground. If he wishes to do so, 
 he must demur. Jam^es v. Van Horn, 10 Vroom 353. 
 
 In a suit against a, corporation, as builder and owner, ending 
 in a judgment, general as well as special; it cannot be objected 
 for the first time on error, that the declaration did not show how 
 the defendant was served. Eiinu v. Eden, 48 Atl. R. 610. So if 
 the declaration recite that the defendant builder was actually 
 served with process, and no evidence to the contrary is offered, the 
 fact, that the defendant builder is shown to be a resident of an- 
 other State, does not entitle him to object to the entiy of a general 
 judg-ment against him. Culver v. Liehei'man, 40 Vroom 341. 
 
 2. OWNER'S ESTATE. The declaration need not state what 
 the owner's estate in the land is, it is only necessary to name the 
 owner as such, and to aver that the debt is a lien on the building 
 and lot described in the declaration as in the lien claim, Cornell 
 V. Matthews, 3 Dutch. .522; but if it affinnatively appears, on the 
 face of the declaration and lien claim, that the person, sued as 
 owner, has no estate at all in the lands, the suit cannot be main- 
 tained, Bahhitt v. Condon. 3 Dutch. 154. 
 
 PRODUCTION OF SUIT. The declaration need not conclude, 
 "and therefore he brings his suit;" the averment, that the claim 
 is a lien upon the building and lot, etc., is the conclusion of the 
 declaration. Cornell v. Matthexvs, 3 Dutch. 522. 
 
 USE OF MATERIALS. It is not necessary that the declara- 
 tion should aver that the materials for which the debt was in- 
 curred were actually used in the building, inasmuch as it is only 
 necessary to prove that they were ordered and furnished for that 
 puri>ose. Morris Co. Bank v. Rockawai/. etc.. Co.. 1 McCart. 189; 
 Camphell v. Taylor, etc.. Co.. 51 Atl. R. 723. 
 
 APPORTIONMENT OF LIEN. See, as to the proper method 
 of framing the declaration, in case the claim is to be apportioned 
 between several buildings, Culver v. Liehernmn. 40 Vroom 341. 
 See also, under § 22, note 1. The declaration, as well as the lien 
 claim, must apportion the claim and describe the several buildings 
 and curtilages. 
 
 CONDITIONS PRECEDENT. The plaintiff will find it wise 
 to aver the performance of all conditions precedent. See Stewart 
 Contracting Co. v. Trenton Co.. 42 Vroom 568; Dimick v. Metro- 
 politan Ins. Co.. 38 Vroom 367. 
 
 3. FILING DECLARATION. In Craig v. Smith, 3 N. J. L. J. 
 380, (Oct. 15, 1880) it was held, at Circuit, that if the declaration 
 in a lien suit be lodged with. the clerk to be filed, and is by the 
 latter marked as filed, prior to the return day of the summons, 
 it is an irregularity which will rendw viodable, a judgment by 
 default, entered more than sixty days after such return day. This 
 ruling was made on the asserted authority of Brown v. Daws. 3 
 Zab. 483; but that case, when examined, does not seem to sup-
 
 Eevision of 1898, § 24. 123 
 
 port it; for the most that it decided was, that, under the practice 
 as then (1852) established by law, a defendant's time to plead could 
 not be shortened by a notice that the plaintiff had filed his declara- 
 tion, when such notice was served before the plaintiff legally could 
 have filed his declaration. See the act of 1852, p. 218, § 1 ; and 
 see also, 3 N. J. L. J. 355, editorial comment on Craig v. Smith. 
 
 By the act of 1884, p. 267, now Gen. Sts., p. 2587, § 320, a plain- 
 tiff is authorized to file his declaration at any time after the is- 
 sue of the summons, and to then serve it on the defendant, or to 
 annex it to, and have it served with, the summons, before it is 
 filed; but there is some doubt whether this statute applies to the 
 case of a suit to enforce a lien, since it is required that the dec- 
 laration in such a suit shall recite that the defendants have been 
 summoned and how they have been served, and it would seem that 
 this could only be done after the return day of the summons had 
 been reached. See suggestion of Justice Depue, 13 N. J. L. J. 30. 
 
 SERVICE OF DECLARATION. There seems to be, there- 
 fore, a doubt that the declaration in a lien suit can be served be- 
 fore the return day of the siunmons; But no reason appears for 
 supposing that it may not be served after that time, as declara-, 
 tions in other suits may be. 
 
 SCHEDULE. In a case where neither the lien claim nor dec- 
 laration showed that the debt was incurred for work done by con- 
 tract, but, on the contrary, showed a number of apparently sepa- 
 rate items with the date and amount of each, it was held, in a col- 
 lateral foreclosure suit, that it could not be shown by extrinsic 
 evidence that the debt, in fact, was for contract work, and that, 
 therefore, under the law as it then stood (1875), the judgment, as 
 a special lien, was good only to the extent of the items which, 
 on the face of the record, appeared to have been furnished within 
 the year before the lien claim was filed. Raymond v. Post. 10 C. 
 E. Gr. 447. 
 
 LIEN CLAIM AS EVIDENCE. It is not error to allow the 
 lien claim to go to the jury when it is shown to a witness who tes- 
 tifies that the bill of particulars therein contained is a correct state- 
 ment of the goods which he, the witness, ordered for the building. 
 Mooney v. Peck, 20 Vroom 232. 
 
 REFERENCE. The language of the section makes § 155 of 
 the Practice Act applicable to lien suits. There must be mat- 
 ters of account, however, in controversy, to justify a reference. 
 New Yorh Co. v. Kiernan, 44 Vroom 763 (E. & A.). 
 
 See also the act of 1905, p. 374, §§1 and 2. printed below as 
 §§ 24a and 24b. 
 
 4. PLEA IN ABATEMENT. One who is sued as owner, but 
 who, in fact, is not, has the right to raise the question by plea 
 in abatement. Faith v. McNair, 13 N. J. L. J. 44; see also Tom- 
 linson v. DeGraw, 2 Dutch. 73. 
 
 DEMURRER. If it appear on the face of the declaration and 
 lien claim that tlie debt is not a lien on the property therein 
 described, the owner may demur. Coddington v. Beebe, 5 Dutch.
 
 124 Mechanics Lien Law. 
 
 550; Coddington v. Hudson, etc., Co., 2 Vroom 477; and see note 
 2, supra. 
 
 PLEAS IN BAR. The builder can plead only such pleas as 
 he might in an action against him on contract. TomUmon v. De- 
 Grow, 2 Dutch. 73. 
 
 SET OFF. The builder cannot set off claims, due to him from 
 the plaintiff, which have accrued to him in transactions other than 
 that on which his lien claim is based. Naylor v. Smith, 34 Vroom 
 596. See, however, the very able dissenting opinion in this case, 
 reported in 35 Vroom 358, delivered by Justice Collins, and con- 
 curred in by Justices Lippincott and Dixon. It seeons unfortu- 
 nate that the views there expressed were not adopted by the ma- 
 jority of the Court of Errors and Appeals. 
 
 x\ON-PERFORMANCE OF CONDITIONS PRECEDENT. 
 If the plaintiff has averred generally, as he may do, the perfomi- 
 ance of such conditions, the defendant must take care to plead 
 the non-performance of any such condition specially; if he 
 means to rely thereupon, as, for example, the condition requiring 
 the production of an architect's certificate. If the defendant fails 
 so to plead, he will be precluded from such defense. Stewart Co. 
 V. Trenton Co., 42 Vroom 568; Ottowa Tribe v. Munter, 31 Vroom 
 459. 
 
 PLEA THAT THE LAND IS NOT LIABLE. This plea does 
 not raise the issue of the title to the property, nor compel the plain- 
 tiff' to prove the ownership, or estate, of the defendant therein. 
 That question may be raised by a plea in abatement, as just 
 noticed; but under this plea it is immaterial what interest the de- 
 fendant has, or whether he had any. Cornell v. Matthews, 3 
 Dutch. 522; Waslihurn v. Burns, 5 Vroom 18. If the owner wishes 
 to contest the validity of the lien he must do so by this plea, 
 and the only issue raised by it is, the validity of the lien, as 
 against the land, on the assumption that he is the owner of it. 
 Tomlinson v. DeGraw, 2 Duteh. 73; and see the cases also just 
 cited. The plea imposes upon the claimant the burden of es- 
 tablishing, as against the owner or mortgagee, that the pro- 
 visions of the act, requisite to constitute the lien, have been com- 
 plied with. Vreeland Co. v. Enickerhocher Co., 68 Atl. 215. Prior 
 to the act of 1884, no one but the owner could plead this plea, as 
 he was the only one concerned in contesting the validity of the 
 lien. Tomlinson v. DeGraw. supra; Cornell v. Matthews, supra; 
 but now mortgagees also may plead it. An owner who is sum- 
 moned only as builder, but declared against as owner, waives the 
 irregularity of the summons, by pleading this plea. Cornell v. 
 Matthews, supra. 
 
 PLEA THAT MATERIALS WERE NOT USED. There can 
 be no such plea. If it were competent to show this in defense 
 it would be i)ermissible only under the plea just above mentioned, 
 but it is no defense, even if true, unless. i)erhaps, in case of fraud. 
 Bell V. Mecmn, 68 Atl. 149. See note 2, supra. Use of Materials. 
 
 VARIANCE. If the lien claim is for repairs and theyproof 
 is the erection of a new building, there is a fatal variance. Cox 
 V. Flanagan, 2 Atl. 33 (Bird, V. C).
 
 Revision of 1898, § 24. 125 
 
 OTHER DEFENSES. When the builder is also vice presi- 
 dent of a corporation that is supplying him with materials, 
 the owner who settles with him, without assuming- to discharge 
 such builder's debt to said company, and with neither his nor its 
 consent for such a transaction, cannot afterwards claim that the 
 company's right of lien has been thereby discharged. Kaiqhn v. 
 Friday, 73 Atl. 540. 
 
 A stipulation that there shall be no defense but payment will 
 preclude any other defenses. Kaighn v. Friday, supra. 
 
 The owner cannot plead that the plaintiff has previously made 
 an unsuccessful attempt to establish the same claim against the 
 supposed interest of another person in the same land. If true, that 
 would be no bar; and the act gives the owner the right to plead 
 only that the lands are not liable and such other pleas as the 
 builder can plead. Vreeland Co. v. Knickerhocker Co., 68 Atl. 215. 
 
 INTERLOCUTORY ORDERS, made in the course of a lien 
 suit are not reviewable by certiorari. The proceedings in such 
 suit are according to the course of the common law, and are re- 
 viewable only by writ of error after final judgTuent. Five Mile 
 Beach Co. v. Friday, 66 Atl. 901. 
 
 5. CONCLUSIVENESS OF JUDGMENT. A judgment on a 
 lien claim has the same quality of conclusiveness that an ordin- 
 ary common law judgment has, when put in issue in a collateral 
 proceeding. It may be avoided for fraud but cannot be set aside 
 for imperfections in the lien claim or irregularities in the pros- 
 ecution of the suit. Jacohus v. Mut. Ben. Ins. Coo., 12 C. E. Gr. 
 604; s. c, 11 C, E. Gr. 389, sub nom. Mutual, etc., Co. v. Row- 
 and. 
 
 Two questions may be raised, respecting the record of such 
 judgment, in a collateral proceeding. One respects the jurisdic- 
 tion of the court upon the subject matter adjudicated upon. The 
 other relates to the existence of the adjudication. The latter 
 question can be tried only by the record, which imports absolute 
 verity, and against which no averment, or proof to the con- 
 trary, can be received. Cutter v. Kline, 8 Stew. 534; reversing 
 s. c, 7 Stew. 329. 
 
 Hence, it cannot be shown collaterally that a judgment was 
 entered as a general judgment instead of a special judgment, by 
 the mistake of the clerk of the Circuit Court, Cutter v. Kline, 
 supra; nor that the curtilage upon which the lien is thereby im- 
 posed is not the proper curtilage, Gerard v. Birch, 1 Stew 317; 
 Jacohus V. Mut. Benefit Ins. Co., supra; nor that the items of 
 claim, which appear, by the record, not to have been furnished 
 by contract were, in fact, so furnished. Raymond v. Post, 10 C. 
 E. Gr. 447. See Hall v. Spaulding, 11 Vr. 166. 
 
 If the record of such a judgment is in fact not what it should 
 have been, but no defect of jurisdiction appears; it must be 
 either amended in the court pronouncing it, or reviewed by writ 
 of error. The Court of Chancery has no power to determine 
 whether a claim, which purports to be a lien, is a lien or not, but 
 only, what is the position, in relation to other encumbrances, of
 
 126 Mechanics Lien Law. 
 
 a claim which the Circuit Court has adjudicated to be a lien. 
 Cutter V. Kline, supra. But if it appear that the court was 
 without authority to give the judgment, as where the claim filed 
 did not comply with the statutoiy requirements in regard to ap- 
 portioning the claim as between several buildings, and this ap- 
 peared on its face; the judgment may be collaterally avoided. 
 Morris Co. Ba-nk v. Rockaway Mfg. Co., 1 C. E. Gr. 150. So 
 where lands were bona fide conveyed to a contractor by the owner, 
 after the building was completed pursuant to a duly filed contract ; 
 and the contractor thereafter mortgaged them, and then a ma- 
 terialman recovered a special judgment against such contractor, 
 as builder and owner; and the mortgagee then foreclosed, it was 
 held that the mortgage was prior to such judgment, because the 
 claimant had no right to a Hen. Scudder v. Harden, 4 Stew. 503. 
 
 CONCLUSIVENESS OF JUDGMENT AS ESTABLISH- 
 ING PRIORITIES. Prior to the act of 1884, p. 260, by which 
 mortgagees are required to be made parties, judgnient on a lien 
 claim, and sale and conveyance pursuant to special ti. fa. there- 
 upon, did not preclude an encumbrancer from contesting with 
 the purchaser, collaterally, the question, whose title was para- 
 mount, Tompkins v. Horton, 10 C. E. Gr. 293; Clark v. Butler, 
 5 Stew. 664; and the time of the commencement of the building, 
 upon which the respective priorities of mortgages and lien claims 
 depended, as the statute did not require it to be specified, either 
 in the lien claim or the record of the judgment, could not be shown 
 by such record, even if an entry of it appeared therein ; unless it 
 was in some way put in issue and found by the jury. Gordon 
 V. Torrey. 2 McCart. 112. 
 
 It may be difKcult to say just what is the effect of the law 
 as it now stands, on all the questions that suggest themselves, m 
 this connection; but it is probably safe to assume, that while the 
 priorities, as established by a judgment under the present law, 
 cannot be collaterally attacked, as between the part res to the 
 suit, they may still be subject, as formerly, to such attack on the 
 part of others; and that, on such attack, the time of the cona- 
 mencement of the building may be shown, by the record, if it 
 be shown by it; or aliunde the record, if it do not show it, or 
 if it is desired to contradict that date which it does show. 
 
 6 VERDICT SPECIAL FINDINGS. If a lien claim is for 
 repairs as well as for construction, the verdict should find sepa- 
 rately the amount due for each class of claim ; because the prior- 
 ity of the claim in respect of a purchaser or mortgagee is not tlie 
 same in the one instance as in the other. James v. Yam H&rn, 
 10 Vroom 353. As we have seen above, under § 10, note 3, claims 
 for alterations are, by the present revision, made the same, in 
 this respect, as claims for repairs. If the proof shows that items 
 for alterations and repairs, have been blended with itenis for con- 
 struction, in a lien claim which purports to be for the latter work 
 only care must be taken, in moving for a non-suit or a verdict 
 on 'that ground, to specify the items that are thus erroneously 
 included and why such inclusion is erroneous. Otherwise the
 
 Revision of 1898, § 24a. 127 
 
 objection will not be considered upon writ of error. Bell v. Me- 
 cum, 68 Atl. 149; citing. Van AUtijne v. Franklin Council, 40 
 Vroom 672. 
 
 FORM OF JUDGMENT. It is of no consequence to the 
 owner whether the summons has been actually served on the 
 builder as that is material only as determining whether the judg- 
 ment shall be general against the builder. The only judgment 
 that can be entered against the owner, as such is the special 
 judgment. James v. Van Horn, 10 Vroom 353. And it is re- 
 versible error for the judg-ment, so far as it purports to be 
 special, to fail to direct the recovery to be made of the land, or 
 the owners interest therein, as well as of the building. There 
 cannot be judgment specially to be made of the building only. 
 Bahhitt v. Condon, 3 Dutch. 154; Coddington v. Beehe, 2 Vroom 
 477 ; Leaver v. Kilmer, 59 Atl. 643 (E. & A.) ; and so where the 
 party defendant as owner is a mere licensee there can be no spec- 
 ial judg-ment. Wm. H. Atkinson Co. v. Shields Co., 72 Atl. 81 
 (E. & A.). 
 
 The wording of the statute is peculiar, but it does not mean 
 that a special judgment can be entered only where there has been 
 legal and not actual service of the summons; the special judg- 
 ment, if the lands are liable, may be entered whether the sum- 
 mons was served "actually" or "legally," Mut. Benefit, etc., Co. 
 V. Rowand, 11 C. E. Gr. 389. The language of the statute, that 
 judgment shall be entered against the builder generally, "when 
 he was actually served with the summons;" and that "when 
 only legal service of the summons has been made judgment against 
 the owner and also the builder shall be specially, etc.," does not 
 preclude a general judgment against the builder, although not 
 served within the State, if he has by appearance and plea of 
 the general issue, submitted to the jurisdiction. Smith v. Colloty, 
 40 Vroom 365 (E. & A.). 
 
 The plantiif, if entitled to enter a general and special judg- 
 ment, may waive either and enter the other. Cornell v. Matthews, 
 3 Dutch. 522. 
 
 Reference. Matters of Account. Special Judgment. 
 Priorities. Proceedure. 
 
 24a. Any action brought bv virtue of the provisions of 
 the act to which this is a supplement and in which matters of 
 account are in controversy may, by rule, be referred to some 
 competent person or persons to state and report an account 
 between the parties and the amount that may be d\ie from 
 either party to the other ; and in case a lien is claimed in 
 said action, then, whether the plaintiff is entitled to judgment 
 specially against the building and land in the declaration 
 described, and in case of defendant mortgagees, to report the
 
 128 Mechanics Lien Law. 
 
 priority of liens of the plaintiff and said mortgagee defend- 
 ants as put in issue by the pleadings in such action. 
 
 24b. The practice and procedure respecting such referen- 
 ces and upon and after the coming in of the report, and the 
 rights of the parties with respect to trial by jury, shall be 
 the same as in other actions at law in which matters of 
 account are in controversy, and in which references are 
 ordered ; and judgment, if entered on the report, shall be 
 given in like manner as now provided by the act to which 
 this is a supplement. 
 
 The above, printed as §§ 24a aud 24b, is the act of 1905, p. 
 374, §§1 and 2. 
 
 It will be noted that it gives larger powers than were a part of 
 the ordinary powers of the court before its enactment. See New 
 York Co. V. Kiernan, 44 Vroom 763. 
 
 Amendment of errors and defects of proceedingfs by Cir- 
 cuit Court or judge. 
 
 25. It shall be lawful for the court, or any judge thereof, 
 at all times, to amend all defects and errors in any suit or 
 proceeding under this act, so that the merits of the contro- 
 versy between the parties may be determined ; and that said 
 amendments made be made with or without costs, and upon 
 such terms as to the court or judge may seem fit.^ 
 
 1898, p. 538, § 25; Rev. 1874, § 20. 
 
 This section remains the same as when first enacted as § 20 
 of the Kevision of 1874. 
 
 1. Prior to this statute the circuit court had power to amend 
 its files and records, even in a mechanic's lien suit (but not the 
 lien claim) under the Practice Act, Vreeland v. Boyle, 8 Vroom 
 346; MuL, etc., Co. v. Rowand, 11 C. E. Gr. 389; and so it was 
 held that, before or after plea, the summons against the defend- 
 ant as builder might be amended so as to be against him as builder 
 and owner, Cornell v. Matthews, 3 Dutch. 522 ; or that, in a suit 
 to enforce a lien against the husband's interest, in an estate by 
 the entirety, the name of the wife might be struck out as a de- 
 fendant and the suit proceed against the husband only, Washhurn 
 V. Burns, 5 Vroom 18. 
 
 So where the summons was defective and an order was ob- 
 tained to issue a new summons more than a year after the date 
 of the last item of claim, the service of such new summons was 
 held good and effectual to validate the lien. Mut. Ben., etc., Co. 
 V. Rowand, 11 C. E. Gr. 389.
 
 Revision of 1898, § 2Q. 129 
 
 But where the defect is the result of a deliberate choice on 
 the part of the claimant to sue as owner one whom he knows 
 to be not such, an amendment may be refused. Ba/rtley v. Smith, 
 14 Vroom 321. 
 
 As is noted above (§ 24, note 5) the way to correct an erro- 
 neous judgment is, by having the record amended, if it be erron- 
 eous by mistake of fact; by writ of error, for mistake in law. 
 Cutter V. Kline, 8 Stew. 534. 
 
 Parties in case of death of builder, mortgagee, or owner. 
 
 26. In case of the death of the builder or mortgagee the 
 suit on the lien claim may be against the executors or admin- 
 istrators of said builder or mortgagee ; and in case of the 
 death of the owner, mav be against his heirs or devisees ; pro- 
 vided, that if any builder, mortgagee or owner has died or 
 shall hereafter die after the filing of the lien claim and the 
 issuance of the summons pursuant to the terms of this act, 
 then such suit shall not be abated, but shall proceed against 
 the executors or administrators of such deceased builder or 
 mortgagee and against the heirs and devisees of such deceased 
 owner, upon the death of such builder, mortgagee or owner 
 being suggested on the record and upon the names of the 
 executors or administrators of such deceased builder or mort- 
 gagee, or the names of the heirs and devisees of such deceased 
 owner being entered on said record ; and in any such case, 
 if the time limited by this act for issuing such summons has 
 expired, the summons already issued may be amended as to 
 such deceased party or parties, and the time for the retura 
 thereof mav be extended, if necessarv, and such amended 
 summons shall then be served as other summons are served 
 under this act. 
 
 1905, p. ^5^; 1898, p. 538, § 26; 1866, p. 1015, § 2; 
 Bev. lS7Jt, § 21. 
 
 The act of 1866 provided that the lien might be claimed, filed, 
 and enforced by suit, against the executors or administrators of 
 the builder or owner. This statute was construed, in Rohhins v. 
 Bunii, 5 Vroom 322, and it was there held that it was not the 
 legislative intent to change the judicial construction, previously 
 put upon the act of 1853, in Edwards v. Derrickson, 4 Dutch. 39; 
 s. c., 5 Dutch. 468; and Gordon v. Torrey, 2 McCart. 112, that 
 the owner when the lien claim is filed is the proper party defend- 
 ant as such; but that its purpose was to prevent the abatement of 
 the proceedings upon the lien claim, by the death of the builder 
 or owner. It had been decided previouslv to 1866, in Ayres v. 
 9
 
 130 Mechanics Lien Law. 
 
 Revere, 1 Dutch. 474 (1856), that where the builder had died 
 after the lien claim was tiled, no suit could be maintained to en- 
 force the claim against the builder's administrators; and it was, 
 therefore, also questionable whether the lien could be enforced 
 by suit, if the owner should die after the lien claim was hied; 
 for the same reason, upon which Ayres v. Revere was decided, 
 viz.: that the suit could not be maintained against the builders' 
 representatives because the act did not expressly nanae them as 
 possible parties, applied also to the ease of a deceased owner's 
 representatives. The enactment of 1866 was obviously intended 
 to extend the remedy to the case of either a deceased builder or 
 owner, by preventing an abatement by the death of eitlier after 
 the lien claim was filed; and so was the decision in Robbins v. 
 Bunn, as above said. 
 
 By the Revision of 1874, adopted without change in the Re- 
 vision of 3898, as § 26, the provision read: "In case of the 
 death of the builder, the suit on the lien claim may be against 
 his executors or administrators; and if the owner be dead, such 
 suit may be against his heirs or devisees." 
 
 It was plainly so worded, so as to ado^t the construction of 
 the court in Robbins v. Bunn, whose suggestion, that the heirs 
 or devisees of the deceased owner, and not his personal representa- 
 tives, ought to be the parties to be sued, was also adopted. It is 
 to be noted that the provision . of the act of 1866, that the lien 
 might be claimed and filed (as well as enforced) against the rep- 
 resentatives of a deceased builder or owner, was left out of the 
 Revision of 1874 as well as the Revision of 1898, and that it 
 has also been left out of the section as it now stands amended 
 by the act of 1905. 
 
 Execution. General or special fi. fa. Separate or com- 
 bined writ. Successive writs. Docketing judgments in 
 Supreme Court. 
 
 27. Where judgment is entered generally against tJie 
 builder, a writ or ^vrits of fieri facias mav issue thereon as 
 in other cases, and when judgment shall be against the build- 
 ing and lands, a special writ of fieri facias may issue to 
 make the amount recovered by sale of the building and lands; 
 and when both a general and s}>ecial judgment shall be given, 
 both writs may be issued, either separately or combined in 
 one writ, and one may be issued after the return of the otber 
 for the whole or residue, as the case may require ; and such 
 judginents may be docketed in the supreme court, and execu- 
 tion had thereon as (in the cose of other judgments). 
 
 189S, p. 538, § 27; 185S, p. Jf37, § 10; Rev. 1874, § ^^.
 
 Kevision of 1898, § 28. 131 
 
 This section is the same as it was when originally enacted in 
 1853, and as it stood in the Revision of 1874, with the exception 
 that the words in parentheses take the place of the words — "other 
 judgments may be," in the earlier drafts. 
 
 See § 24, supra, note 6, that a claimant entitled to a general as 
 well as a special judgment, may waive either and enter the other. 
 
 Proceedings under special fl. fa. Sale and conveyance. 
 Estate conveyed. Prior encumbrances. Constructions 
 removable as between landlord and tenant. 
 
 28. Under such special fieri facias the sherifi:" or other 
 officer shall advertise, sell and convey said building and lot 
 in the same manner as directed by law in case of lands levied 
 upon for debt, and the deed given by such sheriff or other offi- 
 cer shall convey to the purchaser the estate which the owner 
 had in the lands at the commencement of the building,^ or 
 which he subsequently acquired, and also in the building, sub- 
 ject only to all mortgages and other encumbrances created and 
 recorded, or registered prior to the said commencement of 
 the improvement, (and also subject to the lien of any mort- 
 gaige given, and recorded, w registered, under the circum- 
 stances contemplated hy and in. conformity with the provi- 
 sions of sections IJ^ and 15 of this act)^ ; and in case of gear- 
 ing or machinery, the bringing of the same upon the premises 
 shall be such commencement ; and such prior encmnbrances 
 shall have priority to all subsequent builders' liens upon said 
 lands and upon the erections thereon, except such as may 
 be removed, as between landlord and tenant, which may be 
 sold and removed by virtue of any building lien for the con- 
 struction of the same, free from such prior encumbrances. 
 
 1898, p. 538, § 28; 1853, p. 437, % 11; 1863, p. 275, 
 § 1; Rev. 1874, § 23; 1879, p. 71, § 1; 1895, p. 313, 
 
 With the exception of the words in parentheses; which are in- 
 serted because of the act of 1870. p. 71, § 1 (now embodied with 
 a material chaniie in § 14) and the act of 189.5, p. 313, § 6 (em- 
 bodied without change or addition as § 15), and the further ex- 
 ception, that the word, "improvement," is substituted for the 
 word, "building," the foregoing section is derived entirely from 
 the act of 1853, § 11, the act of 1863, p. 275, § 1, and the Rev. 
 of 1874. § 23. To facilitate comparison, these three enactments 
 are given below in parallel columns:
 
 132 
 
 Mechanics Lien Law, 
 
 1853, p. W, § 11- 
 The deed * * shall 
 convey to the pur- 
 chaser said buildings 
 free from any former 
 incumbrance on the 
 lands, and shall con- 
 vey the estate in the 
 lands vfhich said own- 
 er had at or any time 
 after the commence- 
 ment of the building, 
 within one year be- 
 fore the filing such 
 claim, etc., subject to 
 all prior e n c u m- 
 brances and f^ee 
 from all encum- 
 brances or estates 
 created by, or ob- 
 tained against, such 
 owner afterwards, 
 and from all estates 
 and encumbrances 
 created by deed or 
 moi-tgage made by 
 such owner, or any 
 claiming under him, 
 and not recorded or 
 registered etc. at the 
 commencement o f 
 said building. 
 
 186S, p. 
 The sale 
 convey — 
 
 275, 
 
 i 1- 
 shall 
 
 the 
 estate of the owner in 
 the lands 
 
 and in 
 
 the building 
 
 subject to all mort- 
 gages and other en- 
 cumbrances created 
 and recorded or regis- 
 tered prior to the, 
 commencement of the 
 building : 
 
 and in case of 
 gearing or machinery, 
 the bringing of the 
 same on the premises 
 shall be such com- 
 mencement; and such 
 prior encumbrances 
 shall have priority to 
 all subsequent build- 
 er's liens upon said 
 lands and upon all 
 erections thereon, ex- 
 cept such as, by law 
 may be removable, as 
 between landlord and 
 tenant, and which 
 may be sold and re- 
 moved, by virtue of 
 any building lien for 
 the construction of 
 the same, free from 
 such prior encum- 
 brances. 
 
 Rev. 187 J^, § ^3. 
 The deed * * shall 
 convey to the pur- 
 chaser 
 
 the 
 
 estate which the own- 
 er had in the lands at 
 the commencement of 
 the building or which 
 he subsequently ac- 
 quired, and also in 
 
 the building, 
 
 subject to 
 
 all mortgages and 
 other encumbrances 
 created and recorded 
 or registered prior to 
 the commencement of 
 the building : 
 
 and in case of 
 gearing or machinery, 
 the bringing of the 
 f^ame on the premises 
 shall be such coal- 
 men cement; and 
 such prior encum- 
 brances shall have 
 priority to all subse- 
 quent builder's liens 
 upon said lands and 
 upon all erections 
 thereon, except such 
 as, may 
 
 be removable, as be- 
 tween landlord and 
 tenant,, and which 
 may be sold and re- 
 moved', by virtue of 
 any building lien for 
 the construction of 
 the same, free from 
 such prior encum- 
 brances.
 
 Revision of 1898, § 28. 133 
 
 1. WHO IS OWNER. As will be seen by reference to the de- 
 cisions cited under g 16, the person who is to be named as owner 
 is the one who is such at the time the lien claim is filed. Those 
 who succeed to his rights after the lien claim is filed take as 
 purchasers pendente lite and are barred by the proceedings to 
 enforce the lien, although not made parties, except in so :far 
 as § 23 provides otherwise as to mortgagees, and as § 26 may now 
 require in the case of the death of the owner or mortgagees. 
 
 The words of the present section make the lien bind the estate 
 of such owner and his successors which he had at the commence- 
 ment of the building or which he subsequently acquired. See as 
 to this the cases cited under § 16; also under § 23, Chang© of 
 Title; also Stewart Co. v. Trenton Co., 42 Vroom 568. 
 
 COMMENCEMENT OF THE BUILDING. It is well estab- 
 lished that when the permanent work upon the ground, whether 
 of excavation or of construction, has progressed so far as to in- 
 form reasonable obser^'ers that it is designed for the erection of 
 a building, then the building has begun. The statute intends such 
 a commencement as shall be an unequivocal notice of an intent 
 to build a building, and so much must, therefore, be done as will 
 apprise observers that a building is in progress. Jacohus v. Mut., 
 etc., Co., 12 C. E. Gr. 604; 11 C. E. Gr. 389, sub nom., Mut., etc., 
 Co' V. Rowand; Burd v. Huff, 17 N. J. L. J. 80; James v. Van 
 Horn, 10 Vroom 353. 
 
 NEW COMMENCEMENT. A change of ownership during 
 the progress of the building does not make a new commencement; 
 nor does an interruption of the work, for a short period, or for 
 months at a time where there is nothing to indicate an intent to 
 abandon the work, when the work is subsequently resumed, with- 
 out change in the original design and character, Gordon v. Tar- 
 rey, 2 McCart. 112; Manhattan, etc., Co. v. Paulison, 1 Stew. 304; 
 but where the owner fails after the work is begun and the work 
 lies abandoned for a long time, and a new purchaser then takes 
 up its completion, after the former work and materials have 
 been paid for, the later beginning of the work is the commence- 
 ment as to all claims for labor or materials thereafter furnished. 
 Cueman v. Barnes, 11 N. J. L. J. 172. 
 
 EVIDENCE OF THE COMMENCEMENT. The time of the 
 commencement is not required to be specified either in the lien 
 claim or the record of the judgment; and, unless the fact is in 
 some way put in issue and found by the jury, an entry of the 
 time either in the lien claim or the record of the judgment would 
 be unauthorized and unavailing, as evidence. Gordon v. Torrey, 
 2 McCart. 112. At the time this decision was given, the statute 
 did not provide for making mortgagees parties to the suit on a 
 lien claim, nor that the judgment should determine priorities as 
 between lien claimants and defendant mortgagees, as it now does. 
 See § 24, note 5, Conclusiveness of Judgment as Establishing 
 Priorities.
 
 loi Mechanics Liex Law. 
 
 2. PRIOIiITIES. In order to comprehend the effect of this 
 statute, in respect of the relative priorities of the lien claim and 
 other encumbrances, it is necessary to read this section and §§ 10, 
 14 and 15 together, and to carefully analyse their provisiona. 
 This analysis is attempted later in this note, as we may, first, 
 stop to notice another matter, namely: 
 
 PEIORITY OF LIEN AS TO THE BUILDING ONLY., As 
 will be perceived, the original act of 1853, gave a mechanic's lien 
 priority, in respect of the building, over any previous encumbrance 
 on the land, but made it, in respect of the land, subject to all such 
 previous encumbrances thereon. The result was. that when there 
 was a mechanic's lien and a prior encumbrance, the value of the 
 land and building, and of the land without the building, li«id to 
 be determined, in order that the relative share of the respective 
 claimants, in tlie proceeds of sale might be ascertained. Whitehead 
 V. First Alethodist Church, 2 McCarter 135; Newark Lime Co. v. 
 Morrison. 2 Beas. 133; and, as it was obviously inequitable, that 
 this prior right of a lien claimant, in respect of the building, 
 should extend beyond that which his labor or materials had con- 
 tributed to; it was held, in the case of a claim for additions, 
 that such prior right, as to the building, extended only to such 
 additions, and not to the building to which they were added. 
 White nack v. Noe, 3 Stock. 413. 
 
 This peculiar priority of a lien claim, in respect of the building, 
 had no very long life, in the extent to which it was originally 
 given, by the act of 1853; for the act of 1863, as will be noticed 
 although still leaving the lien claim superior to prior encum- 
 brances on the land, as to buildings actually erected by a tenant 
 (and not by the owner), and removable as between such owner 
 and tenant, Heidelhach r. JacoJji. 1 Stew. 544. in all other respects, 
 abrogated the priority in question, and the law, in that respect, 
 has remained unchanged ever since. We now take up the — 
 
 ANALYSIS OF §§ 10, 14, 15 AND 28. As will be seen, by 
 reference to § 10, a lien claim, for alterations or repairs, is post- 
 poned to bona fide purchasers or mortgagees whose rights accrue 
 before the lien claim is filed. By refernce to § 28, it appears, that 
 all other classes of lien claims are postponed only to such other 
 encumbrances as are created and recorded before the commence- 
 ment of the building or improvement, or to such mortgages as 
 are given and recorded under the circumstances contemplated by, 
 and in conformity with the provisions of §§ 14 and 15. By 
 reference to §§ 14 and 15, it api>ears, that, by virtue of their 
 provisions, a lien claim is postponed to a mortgage which is an 
 advance money mortgage, to the exteiit that it is such, and that 
 money has actually been advanced by the mortgagee for. and has 
 been actually applied to, the building or improvement; if such 
 mortgage is recorded before the lien claim is filed. The priorit.y 
 of a lien claim, as against the claims of non lienors, therefore, 
 depends upon two things, namely, first, the nature of the improve- 
 ment; and, second, the nature of the non lienor's encumbrance; 
 and
 
 Kevisio.v or 1S9S, § 28. 135 
 
 FIRST (a). If the lien claim is for repairs or alterations, its 
 priority is determined, as against bona fide purchasers or mort- 
 gagees, other tluni advance money mortgagees, accordingly as the 
 lien claim is filed before or after the rights of such purchasers 
 or mortgagees accrue: 
 
 (6). As against advance money mortgages, to the extent that 
 the money has actually been advanced and applied to the improve- 
 ment, its priority is determined accordingly as it was filed before 
 or after such mortgages are recorded ; and 
 
 (c). As to all other non lienor claimants (attaching creditors, 
 and judgment creditors), its priority is determined accordingly as 
 the building was begun before or after such encvunbrances attached. 
 SECOND (a). If the lien claim is for anj-thing other than 
 alterations or repairs, its priority is determined, as against advance 
 money mortgagees, to the extent that the money has actually been 
 advanced and applied to the improvement, accordingly as the lien 
 claim is filed before or after such mortgages are recorded; but, 
 
 (b). As against all other mortgages and encumbrances, the 
 priority of the lien is determined accordingly as the improvement 
 was begun before they were created and recorded. 
 
 From this analysis, the somewhat peculiar fact emerges, that the 
 statute gives, to an advance money mortgage, a preference, over a 
 lien claim, which it denies to a mortgage given to secure a general 
 loan. For example, let a building be begun May 1, and let the 
 owner on May 10, borrow $1,000, for his general purposes to which 
 it is applied, from mortgagee A; on June 1, let the owner give a 
 mortgage to B, to secure $1,500, to be advanced for the building 
 and as it progresses, and let the money be so advanced and duly 
 applied; let both mortgages be recorded on the day they are 
 respectively given, and let a lien be filed for $500 on September 1 ; 
 then the lien claim will be prior to A's mortgage but subject to 
 B's; and, as a result of this fact, if the premises do not sell for 
 enough to pay the lien claim and both mortgages, the later mort- 
 gage would seem to have a preference over the earlier mortgage, 
 as will be seen by assuming that the proceeds of sale amount to 
 $2,500, and then figuring out the application thereof. 
 
 Or to state the result, of the case supposed, in the form of a 
 syllogism, — 
 
 The lien claim is prior to the first mortgage ; 
 The second mortgage is prior to the lien claim ; and therefore 
 The second mortgage is prior to the first. 
 
 In this syllogism, both premises are given by the statute, but 
 the conclusion, while therefore inevitable, is, to say the least, 
 startling. But it cannot be impugned on that account; if the 
 legislature has power to pass a law, capable of producing such a 
 result. In Tompkins v. Horton, 10 C. E. Or. 284. it is said, "The 
 mortgagee, whose li^ is taken with notice of the liability of the 
 land to the lien created by the statute, etc., cannot complain of a 
 result which he had reason to anticipate, and which he is presumed 
 to have contemplated. Every man must be presumed to know the 
 public laws in existence, and to have contracted with reference to
 
 136 Mechanics Lien Law. 
 
 tJieir provisions." It was, therefore, held that the complainant had 
 no ground to complain of the statute, for postponing his mortgage 
 (taken after the building was begun) to lien claims subsequently 
 filed, and for enabling the proceedings on such lien claims to cut 
 off his rights, as mortgagee, wholly without notice of such proceed- 
 ings and without an opportunity to litigate the matter. The stat- 
 ute, now in consideration, gives notice of the liability of the land 
 to the prior lien which it creates, in favor of an advance money 
 mortgagee ; and so seems clearly valid, in respect of a general mort- 
 gage taken subsequently to its enactment. The wisdom or unwis- 
 dom of the law, is, of course, entirely beside the question. The 
 legislature has the power to make a law capable of producing the 
 result above pointed out, and it seems to have exercised it. 
 
 PUECHASE MONEY MOETGAGES. The statute says that 
 the conveyance, pursuant to a special judgment on a lien claim, 
 shall convey the estate which the owner had at the commencement 
 of the building, etc. Consequently, when, at the time the owner 
 gets title, he also, and as part of the same transaction, gives a 
 mortgage back to secure the purchase price, in whole or in part, the 
 estate, of which he thus becomes seized, is the equity of redemp- 
 tion only, and the mortgage is clearly prior to any lien claim for 
 an improvement begun before such mortgage was recorded. Na- 
 tional Bank v. Sprague, 5 C E. Gr. 13; Strong v. Van Deursen, 
 8 C. E. Gr. 369; Huher v. Diehold, 10 C. E. Gr. 170; Macintosh v. 
 Thurston, 10 C. E. Gr. 242; Gihbs v. Grant, 2 Stew. 420; Clark 
 V. Butler, 5 Stew. 664; Bradley v. Byran, 16 Stew. 396; Lamb 
 V. Cannon, 9 Vr. 362; New Jersey, etc.. Co. v. Bachelor, 9 Dick, 
 600. 
 
 SIMULTANEOUSNESS. The transaction is a single one, if 
 so clearly intended, although there may be a space of time inter- 
 vening between the manual delivery of the deed and that of the 
 m^ortgage. New Jersey, etc., Co., v. Bachelor, supra; although, 
 in Huher v. Diehold, supra, where the A'endor and vendee verb- 
 ally agreed that the vendor was to give a deed and take back a 
 mortgage to secure part of the purchase price, but the deed was 
 delivered more than two months before the mortgage was given 
 (the date of the delivery of the deed, in the absence of other 
 proof, being presumed from the date of the deed), it was held 
 that a lien claim, for work done partly before and partly aft«r 
 the date of the deed, was prior to the mortgage. 
 
 THIRD PARTY MORTGAGEE. By an extension of the rule 
 a third person who advances the purchase money to the vendee 
 and takes the mortgage at the same time that the deed is deliv- 
 ered, and as part of the same single transaction, stands in the 
 vender's shoes, in that behalf; so that there still is conveyed to 
 the vendee only the equity of redemption. Macintosh v. Thurs- 
 ton, supra; Gihhs v. Grant, supra; Clark v. Butler, supra; New 
 Jersey, etc., Co. v. Bachelor, supra. 
 
 MOMENTARY SEIZIN OF MORTGAGOR. It is frequently 
 said, in the cases above cited, that the priority of a purchase 
 money mortgage is due to the fact, that the seizin of the fee,
 
 Revision of 1898, § 28. 137 
 
 by the mortgagor, is so transitory that no lien can attach to it; 
 but, as was distinctly held in Wallace v. Sitshy, 13 Vroom 1, and, 
 as is emphasized in the able opinion of Vice Chancellor Stevens, 
 in New Jersey, etc., Co. v. Bachelor, supra, the true reason is the 
 fact that the mortgagor is not beneficially seized, even for a 
 moment, of anything beyond the equity of redemption. 
 
 PURCHASE MORTGAGE SECUEING ALSO MONEY BE- 
 YOND THE PUECHASE PEICE. It is on the ground last 
 above referred to that the decision in Macintosh v. Thurston, 
 supra, is said, by Vice Chancellor Stevens, to rest, in holding 
 that a mortgage had preference over a lien claim, for a building 
 begmi between the execution of the contract of purchase and the 
 conveyance, not only to the extent of the purchase price, but also 
 for advances made, pursuant to the contract of purchase, for 
 building the house, improving the grounds, and paying taxes. 
 That is, the vendee's beneficial estate, by the terms of the bar- 
 gain, was not the fee out of which he was then, by the mortgage, 
 to carve an estate for the mortgagee; but it never was anything 
 but the equity of redemption remaining after first imposing the 
 mortgage, to its full amount, upon the fee. 
 
 In Gihhs V. Grant, supra, on the contrary, it was held that a 
 mortgage to the full amount secured by it, for money advanced 
 generally to the vendee, as well as for the purchase price, and 
 executed simultaneously with the conveyance, was prior to a 
 mechanic's lien, for a building previously begun, although the 
 mortgagee was a third party, other than the vendor, and the 
 bargain, between the vendor and vendee, did not contemplate any- 
 thing but a conveyance of the land to the vendee, upon the pay- 
 ment of the agreed price thereof. 
 
 Vice Chancellor Stevens, in New Jersey, etc., Co. v. Bachelor, 
 supra, insists that the decision, in Gibhs v. Grant, does not con- 
 trol the question in consideration as it does not appear to have 
 been there distinctly raised and passed upon, and he, therefore, 
 in the Bachelor case, where the facts were, in substance, identical 
 with those in Gdhbs v. Grant, held that the mortgage was prior 
 to the mechanics* lien, to the extent of the purchase price secured 
 by it, but was subject to the lien claim, to the extent of the 
 residue secured by it. 
 
 It is to be noted that in Macintosh v. Thurston and Gihhs v. 
 Grant, the rights of the parties were vested before the act of 1879, 
 p. 77, was passed (see § 14 above), and that the Bachelor case 
 was not within the scope of that act, and that the rights of the 
 parties therein were vested before the act of 1895, p. 313, § 6 
 (see § 15 above), was passed. 
 
 PUECHASE MOETGAGE IN PLACE OF PEIOE MOET- 
 GAGE EELEASED. ^\^lere the vendee, in order to free the title 
 he is seeking to acquire, from the lien of a prior mortgage, cover- 
 ing other lands and securing a verj'^ large sum of money, at the 
 same time that he takes the cx)nveyance, gives to such prior mort- 
 gagee a new mortgage, to secure a less sum, and receives a 
 release of his land from such prior mortgage, such new mortgage
 
 138 Mechanics Liex Law. 
 
 is a purchase money mortgage, and is, therefore, prior to a lien 
 claim for a building begun by the vendee before the deed and 
 mortgage are delivered. Clark v. Butler', 5 Stew. 064. This case 
 was referred to in the Bachelor case above mentioned. The reason 
 of the decision is, that the beneficial estate, conveyed to the ven- 
 dee, was the equity of redemption only. 
 
 In Kittredge v. Newmann, 11 C. E. Gr. 195, the facts were 
 similar to those in Clark v. Butler with the very important differ- 
 ence that, in the Kittredge case, both the vendor and vendee were 
 married women, neither of whom had filed any dissent, and as 
 the lien had attached to the vendor's estate before the cotiveyance 
 to the vendee, the court was obliged to hold that the lien claim 
 was prior to the mortgage. 
 
 SUBROGATION. Akin to the case of a purchase mortgage 
 to a person other than the vendor, is that of a mortgagee whose 
 mortgage, while created and recorded after the building is begun, 
 is given to secure moneys loaned b.y him to pay off a prior mort- 
 gage held by another person and existing before the building was 
 begun, in which case it is held that such new mortgage has an- 
 equity in the land, prior to a lien claim, quoad the amount so 
 paid on the prior mortgage, by right of subrogation, even although 
 a transfer of tlie mortgage, upon such payment, is not made, as 
 it regularly should have been. Barnett v. Griffith, 12 C. E. Gr. 
 201. So where a mortgagee whose mortgage is subject to sev- 
 eral lien claims, pays a judgment recovered on one of such 
 claims, he is entitled, on petition, to be subrogated to the rights 
 of the judgment claimant and entitled to use the judgment for 
 all purposes for which it would be useful to him. Egbert v. De 
 Camp, 3 N. J. L. J. 284. 
 
 INCHOATE RIGHT OF DOWER. A mechanics lien against 
 the land of a man, whose wife, at the time the building is begun, 
 is an infant, is subject to the wife's inchoate right of dower, 
 in the land, apart from the improvement put thereupon. Barnett 
 v. Griffith, 12 C. E. Gr. 201. Perhaps by virtue of § 13, supra, 
 this would not be so in the case of a married woman of full age, 
 and so capable of filing a dissent. 
 
 MERGER OF MORTGAGE. Where lands are subject first 
 to a mortgage and next to lien claims, and the equity of redemp- 
 tion is purchased by a third person who, subsequently, at sheriff's 
 sale on foreclosure of the mortgage, purchases the premises, the 
 title so purchased is freed from the lien claims, as the title by 
 foreclosure sale does not merge in the prior title by the convey- 
 ance of the equity of redemption. Larnh v. Cannon, 9 Vroom 362. 
 SUBSTITUTION. WHiere a mortgagee, whose mortgage is 
 prior to a mechanics lien, but which covers other lands, as well 
 as those subject to such lien, at the request of the mortgagor, 
 and without consideration, releases such other lands after the 
 building was begun, but in good faith and without knowledge, of 
 the existence of the lien claim, although with knowledge that the 
 building was begun; the lien claimant cannot claim the bene- 
 fit of such release as against such mortgagee. Ward v. Hague, 10 
 C. E. Gr. 397.
 
 Revision of 1898, § 29. 139 
 
 CREATI0:N: of mortgage, if a mortgage be recorded 
 before the building is begun, under an agreement that it is to 
 be delivered thereafter to the mortgagee when the money secured 
 by it is advanced, it may be considered, by relation, to have been 
 created at the time of its record or even at the time the bargain 
 was made. Jacobus v. Mut., etc., Co., 12 C. E. Gr. 604; reversing 
 s. c. 11 C. E. Gr. 389, But the purchaser of mortgage bonds, 
 who buys of the mortgagor with knowledge that there are build- 
 ing liens which must be enforced because of the latter's insol- 
 vency, is not entitled to priority over such lien claims, although 
 he paid a present consideration for such bonds, and the mort- 
 gage was recorded before the building was begun. Porch y. 
 Agnew Co., 4 Eob. 328. Such a purchaser is not a purchaser in 
 good faith in open market, nor is he like a person who is bound 
 to advance money upon a mortgage. See generally the notes as 
 to advance money mortgages under § 14, 
 
 The statute is, of course, perfectly clear that a mortgage, cre- 
 ated and recorded after the building is begun, is subject to lien 
 claims, except so far as §§10, 14 and 15, already considered, may 
 provide otherwise. To this point the cases already above cited 
 in these notes to this twenty-eighth section, may be cited. See, 
 also. Mechanics, etc., Co. v. Alhertson, 8 C. E. Gr. 318; Erdman v. 
 Moore, 29 Vroom 445; Currier v. Cunimings, 13 Stew. 145. 
 
 And where there was a filed contract, by which the builder 
 undertook to do all the work and furnish all the materials, but 
 the owner himself purchased and furnished some of the materi- 
 als, contrary to the contract, and pending the building gave a 
 mortgage to secure moneys loaned to him, a lien claim for the 
 materials so furnished by the owner does not lose its priority over 
 such mortgage because of the fact that the mortgagee was 
 imaware of the owner's act and supposed that the builder had 
 furnished all that the contract called for. Mechanics, etc., Co. 
 V. Alhertson, 8 C. E. Gr. 318. 
 
 Concurrence of lien claims. Distribution of proceeds of 
 sale pro rata. Time of distribution. Caveat against 
 claims. Rules of practice and pleading, etc., to be made by 
 Circuit Court. 
 
 29, All lien claims for erecting-, (adding to, repairing or 
 altering) the same building- shall he concurrent liens upon 
 the building' and the land whereon the same is erected, and 
 shall be paid pro rata^ out of the proceeds thereof, when sold 
 by virtue of this act ; and for the purpose of distribution, the 
 sheriff or other officer shall pay such proceeds to the clerk of 
 said circuit court, to be by said court distributed^ among such 
 claims filed, or as shall be filed according to this act before 
 petition filed in said court for distribution thereof, and
 
 140 Mechanics Lien Law. 
 
 among such only ; but the amount paid to any claimant shall 
 not be paid over to him until after his claim' shall have been 
 filed for three months ; and if a caveat be filed against such 
 claim by the owner, or by any claimant or claimants OAraing 
 together one-third of the lien claims filed against such build- 
 ing, then not until such claim shall have been established by a 
 special judgment thereon f and such circuit courts shall have 
 full ix)wer to adopt such rules of practice and pleading, and 
 to make all orders necessary and proper to carry into effect 
 the objects of this act, and to secure a proper disposition of 
 the proceeds of sales to all i^ersons entitled thereto bv the 
 provisions of this act. 
 
 1898, p. 538, § 29; 1853, p. 1^1, § 11,; Rev. 18U, § 2J,. 
 
 The words in parentheses are added in the Revision of 1898, 
 otherwise the act reads the same now as when originally enacted 
 in 1853, and re-enacted in the Revision of 1874. 
 
 1. By virtue of § 6, ante, the claims of journeymen or labor- 
 ers for wages are given a preference over other lien claims. The 
 result would seem to be that all lien claims of the same class are 
 concurrent inter se; but that claims for wages as a class are prior 
 to other claims. 
 
 If the land has been sold under foreclosure of a mortgage, to 
 which the lien claims are prior, they share the fund produced pro 
 rata. Stiles v. Galhreath, 3 Rob. 222; aff. s. c. 1 Buch. 299. See, 
 also. Federal Trust Co. v. Guigues, 74 Atl. 652. 
 
 2. Independently of this, or of any other statutory provisions, 
 the power of the court, issuing process, under which moneys are 
 made, to direct the disposition thereof seems to be ample.' The 
 command of such process (and the process of execution on a lien 
 claim is no exception) always is that the sheriff have the moneys 
 in court to render, etc. Anciently this command was required 
 to be strictly obeyed in all cases; and although, by a permissive 
 departure from such command, it is now the usual and proper 
 practice for the sheriff to pay the proceeds out of court to the 
 party entitled thereto, the court has neither surrendered nor lost 
 its i)ower to compel the money to be paid into court according 
 to the command of the writ, and to direct its disposition when it 
 is so paid in. Stehhins v. Walker, 2 Green 90. Such power, of 
 course, is limited to moneys made under its own process. Wood- 
 ruff V. Chajnn, 3 Zab. 566; and the jurisdiction to determine the 
 disposition thereof is exclusively vested in such court, and the 
 propriety of its determination cannot elsewhere be called in ques- 
 tion, except by proper proceedings to review it for error in law. 
 Heinselt v. Smith, 5 Vr. 215. 
 
 The power will be exercised wherever there is good reason
 
 Revision of 1898, § 29. 141 
 
 therefor, as where there is a dispute as to which of two execu- 
 tions is entitled to the proceeds, or where there are surplus moneys, 
 after satisfying the execution under which the sale is made, which 
 are subject to the equitable liens of subsequent claimants. Mat- 
 thews V. Warne, 6 Halst. 695; Williamson v. Johnson, 7 Halst. 
 86; Sterling v. Van Cleve, 7 Halst. 285; Cox v. Marlatt, 7 Vroom 
 389; Woodruff v. Chapin, supra; Stehhins v. Walker, supra, over- 
 ruling, Thompson v. Pierson, 2 Pen. 1019; and the sheriff may, 
 at all times, voluntarily payl the proceeds into court, for his own 
 security, and to relieve himself from the responsibility of decid- 
 ing upon the validity or priority of conflicting claims, Stehhins 
 V. Walker, supra; Woodruff v. Chapin, supra; although he ought 
 not to do so without good reason therefor. Shallcross v. Beats, 
 14 Vroom 177. 
 
 To obtain, an order that the money be paid into court, neither 
 written pleading or proof is necessarily essential. Gifford v. Mc- 
 Guinness, 53 Atl. 87 (E. & A.). 
 
 But whether the money be paid in voluntarily, or upon due order, 
 the money, when once it is brought in, not only may, but must, 
 be finally disposed of by the court, whether it be the Supreme or 
 Circuit Court or the Common Pleas, and the power of either 
 court, in making such disposition, is not limited to a case where 
 all the contending claims are founded' on executions issued out 
 of the same court; nor is it necessary that the court shall have 
 jurisdiction of tlie persons of the parties having conflicting claims 
 by their being parties of record in a suit pending in said court. 
 Woodruff V. Chapin, supra. 
 
 Even if the rights of the parties are so complica-ted that they 
 can be settled only by a resort to a court of equity, the court 
 should none the less direct the moneys to be brought in and 
 retained until the parties have had an opportunity to apply to that 
 forum. Stehhin'S v. Walker, supra. 
 
 Recurring now to the provision of the statute, requiring the 
 sheriflF to pay the proceeds of sale into court, we apprehend that 
 its effect is to make the sheriff answerable to a claimant without 
 regard to whether or not he has actual knowledge of his claim. 
 That, we think, is its only effect. The sheriff could al- 
 ways discharge himself of liability by paying the proceeds 
 of his sale into court. The statute makes no change in 
 that. So also the sheriff could always discharge himself of 
 liability to any claimant, by paying him his claim, out of court; 
 and when there is no question, as to who is entitled to the money, 
 or as to the amount, it would be vexatious for him not to do so. 
 The statute has not changed that. But the sheriff could not be 
 held to account, for his proceeds of sale; if he paid them out of 
 court to the parties who would have been entitled to them, had 
 there been no other claimants; when he had no actual knowledge 
 before so paying them, that there were any such claimants. State 
 V. Salem Pleas, 5 Halst. 319; Stebhins v. Walker. 2 Green 90, 98: 
 and, in this respect, the statute has made a different rule. On 
 ordinary process the sheriff is not bound to search the records, to
 
 142 Mechanics Lien Law. 
 
 see if there are other claimants having a lien upon the property 
 upon which he levies and Avhich he sells. If there are such claim- 
 ants they; must give him notice, in order to protect themselves. 
 But when he sells under a special fieri facias on a lien claim, the 
 statute, as we apprehend it, requires him to take notice of all lien 
 claims that are of record, if he chooses to pay over the proceeds 
 out of court; and precludes him from setting up any such dispo- 
 sition thereof, as against any such claim which he may have over- 
 looked. 
 
 It is obvious that it is advisable for claimant-s to take care that 
 the sheriff does have actual notice of their liens; and this is not 
 only advisable but necessary in the case of mortgagees and judg- 
 ment creditors of the owner, whose encumbrances are subsequent 
 to lien claims. These encumbrancers are clearly entitled to any 
 surplus proceeds aft«r the lien claims are satisfied; but the sheriff 
 is not, we think, bound to take notice of them, as he is of lien 
 claims. 
 
 ORDER OF DISTRIBUTION, PRACTICE. We think that 
 the owner or any lien claimant, or other subsequent encumbrancer, 
 can apply for an order to distribute the proceeds. A petition 
 should be presented and filed, setting forth all the necessary facts 
 in regard to the fund to be distributed, the names of the claimants, 
 and their respective claims, etc. In Hall v. Spaulding, 11 Vroom 
 166, upon such a petition, a reference was ordered to ascertain and 
 report the amount of the several claims and the persons to whom 
 due. In Crouse v. Lewis, 30 Vroom 288, as far as the circuit files 
 show, an order of distribution appears to have been made, with 
 nothing but a verified petition before the judge, together with 
 proof that the claimants therein named had been served with 
 notice, that application would be made for an order for distribu- 
 tion "between the several lien claimants who have filed 'claims 
 against said premises." 
 
 We apprehend that it is open to any claimant, on the application 
 to order distribution, to litigate the merits of any other claim, 
 which has not been established by a judgment; even although it 
 may have been on file for three months, and although no caveat 
 is filed against it before the petition comes in. Before, therefore, 
 an order is made, there should be due proof that all the persons 
 entitled to be heard have had notice and an opportunity to offer 
 proofs. The order, when made, is reviewable on error, Hall v. 
 Spaulding, supra; Crouse v. Lewis, supra; and on such proceeding 
 to review, all persons interested must be made parties ; and where 
 one party brings the writ, he should issue it in the name of all 
 the claimants, and then proceed by summons and severance. 
 Crouse v. Lewis, supra. 
 
 3. JUDGMENT ON CONCURRENT LINES. There is 
 nothing, in this section, to prevent all of several claimants from 
 obtaining special judgments, on their claims, although the next 
 section provides that the claimant who first issues a summons may 
 obtain an order of the court to stay subsequent suits until judg- 
 ment in the first suit is obtained, under certain circumstances.
 
 Revision of 1898, § 31. 
 
 143 
 
 But it is probably illegal to issue execution, on any of the sub- 
 sequent judgments, so obtained after the property has been sold, 
 under an execution issued on the prior judgTuent; but where one 
 lien claimant obtained a special judgment, under which the premi- 
 ses were sold, and subsequently another lien claimant took a special 
 judgment and had a fieri facias issued and levied, on the same 
 property, and the purchaser, under the first judgment, then moved 
 the court to set aside the subsequent fieri facias, the court declined 
 to take that action apparently on the ground that the purchaser 
 had an adequate remedy by ejectment, if he was disseized, or by 
 suit to quiet title, if he was not, and that the rights of parties 
 ought to be left to such action and not decided' in a sunimary way. 
 It was also intimated that the purchaser might be entitled to the 
 aid of the Court of Chancery to restrain the sale, under such fieri 
 facias. Murphy v. Borden, 20 Vroom 527. 
 
 Stay of subsequent suits until determination of first 
 suit. 
 
 30. Where a summons has been issued and served in any 
 way prescribed by this act., to enforce any building claim 
 lien against any building and lands, all other suits com- 
 menced by summons subsequently issued, to enforce con- 
 current liens against the same building and lands, may be 
 stayed by the claimant therein, or by order of the court, 
 until judgment in such first suit, unless notice to enforce 
 such other claim has been sensed, or a caveat has been filed 
 against paying the same, as hereinbefore provided. 
 
 1898, p. 538, § 30; 1853, p. ^37, § 16; Rev. 1874, § 25. 
 
 This section is the same as when originally enacted in 1853 and 
 re-enacted in the Revision of 1874. 
 See note to § 29. 
 
 Discharge of lien by, 1. Payment to claimant; receipt, 
 etc. 2. Payment to county clerk. 3. By expiration of time. 
 4. By failure to sue on 30 days' notice ; afladavit. 5. By 
 order of circuit judge. 
 
 31. Such land and building may be discharged from 
 any lien created by this act: 
 
 1. By payment and receipt therefor, given by such claim- 
 ant, which, wlien the same is executed in the presence of, 
 and is attested by any officer entitled to take the acknowledg- 
 edgment of the execution of a deed, or when acknowledged 
 or proved before such officer, shall be filed by such clerk, and
 
 144 Mechanics Lien Law. 
 
 the words ''discharged by receipt" shall be entered by him 
 in said lien docket, opposite the entry of said lien ; 
 
 II. By paying to said county clerk the amount of said 
 claim (with interest and costs) ; which amount said clerk 
 shall pay over to said claimant ; 
 
 III. By the expiration of the time limited for issuing 
 a summons on such lien claim, without any summons being 
 issued, or without notice thereof endorsed on said claim ; 
 
 IV. By filing an affidavit that a notice from the owner 
 tO' the claimant, requiring such claimant to commence suit 
 to enforce such lien in thirty days from the service of such 
 notice; and the lapse of thirty days after such service with- 
 out such suit being commenced, or without any entry of the 
 time of issuing such summons being made on such claim ; 
 
 V. When it shall be made to appear by affidavit or other- 
 wise, to the satisfaction of the justice of the supreme court 
 holding the circuit court in the county wherein said lien is 
 filed, that said lien has been duly paid and satisfied, and that 
 the claimant under said lien, and his attorney, have died or 
 removed from this state since the filing of said lien, and said 
 lien still remains on record as unsatisfied, the judge of said 
 court shall have power to forthwith order the clerk of said 
 court to enter a discharge of said lien in said lien docket, 
 opposite the entry of said lien.^ 
 
 1898, p. 5S8, § SI; 185S, p. J,S7, § 13; Rev. 1874, 
 § 26; 1896, p. 103. 
 
 Clause V. was added by the act of 1896 p. 103; the words, — 
 "with interest and costs," in clause II, were inserted tirst in the 
 Kevision of 1898; except for these two changes, the section is the 
 same as when originally enacted in 1853, and re-enacted in the 
 Revision of 1874. 
 
 1. The act, in relation to quieting titles, applies to the case 
 of a lien claim; and a lien claimant, who does not file his claim 
 before a foreclosure suit is begun, and who does not apply to be 
 made a party therein, is barred of his claim by the foreclosure 
 decree. Raymond v. Post, 10 C. E. Gr. 447. 
 
 When a person executes a release of his right of lien, and 
 another upon the faith of such release takes a mortgage, the 
 release will be held to cover the entire claim of such releasor for 
 items subsequent, as well as prior to such release. Manhattan 
 Assn. V. Massarelli. 42 Atl. 284.
 
 REvisioif OF 1898, § 33. 145 
 
 DiBohargre of lien by deposit -with county clerk and 
 notice to retain until claim be established. Repayment 
 of such deposit or surplus, thereof. 
 
 32. Any landowner desiring to contest any claim, and 
 to free bis building and land from tbe lien tbereof, may 
 pay to the county clerk tbe amount of such claim, with inter- 
 est tliereon, for six months after such payment, and twenty- 
 five dollars in addition thereto, Avitb notice to said clerk not 
 to pay over the same until such claim be established by suit ; 
 which sum, or so much thereof as is necessary, shall 1k^ paid 
 to such claimant upon his obtaining- judgment against such 
 building and lauds, in the manner prescribed by this act, 
 and said claim shall from the payment of such money to 
 such clerk, be a lien on said money, and said buildings and 
 lands shall be discharged therefrom, and no execution shall 
 issue against the same by virtue of such judgment ; but if 
 such suit is not commenced within the time at which the said 
 lands would be discharged by the provisions of this act with- 
 out suit, or in case judgment be given therein without being 
 against said lands, said sum shall be repaid to him by said 
 clerk, and if judgiiient be given against such lands for an 
 amount less than that so deposited, then the surplus shall be 
 returned bv said clerk to said landowner. 
 
 1898, p. 5S8, § 82; 185S, p. ^77, § 15; Rev. 1874, § 27, 
 
 This section is the same as when originally enacted in 1853 and 
 re-enacted in the Revision of 1874. 
 
 General repeal of other acts. 
 
 33. The act entitled ''An act to secure to mechanics and 
 others pa^Tuent for their labor and materials in erecting 
 any building (Revision), approved March 27th, one thou- 
 sand eight hundred and seventy-four, and all acts amenda- 
 tory thereof and supplemental thereto, except so far as incor- 
 porated herein and re-enacted herein, are hereby repealed; 
 and all acts and parts of acts, general and special, inconsistent 
 with this act, are hereby repealed : but this repealer shall not 
 revive any act heretofore repealed. 
 
 1898, p. 5S8, § 33. 
 10
 
 146 Mechanics Lien Law. 
 
 Rights vested under prior statutes saved. Practice or 
 procedure to follow this act. 
 
 34. The repeal of any statutory provision by this act shall 
 not affect or impair any act done or right vested or accrued 
 or any building lien filed or any proceeding, suit or prosecu- 
 tion commenced before such repeal take effect ; but every such 
 act done or right vested or accrued or building lien filed, or 
 proceeding, suit or prosecution had or commenced, shall 
 remain in full force and effect to all intents and purposes, 
 as if such statutory provision so repealed had remained in 
 force, except that where the course of practice or procedure 
 for the enforcement of such right or such building lien or pro- 
 ceeding, suit or prosecution shall be changed, all suits pend- 
 ing or thereafter commenced shall be conducted as near as 
 may be in accordance with such altered practice or procedure. 
 
 1898, p. 538, § 34. 
 See Barnahy v. Bradley & Currier Co., 31 Vroom 158 (E. & A.) 
 
 Construction of Terms. Singular number ; masculine 
 gender, bodies corporate. 
 
 35. Whenever in describe'. g or referring to any person, 
 party, matter or thing, any word imiDorting the singular 
 number or masculine gender is used in this act, the same 
 shall be und(>rstood to include, and shall apply to, several 
 persons and parties as well as one person or party, and 
 females as well as males, and bodies corporate as well as indi- 
 viduals, and several matters and things as well as one matter 
 or thing, unless it be otherwise provided, or there be some- 
 thing in the subject or context repugnant to such construction. 
 
 1898, p. 538, § 35.
 
 CHi^F^TER III. 
 
 The": Municipal Improvements Lien Act of 1892. 
 
 (147)
 
 THE MUNICIPAL IMPROVEMENTS LIEN 
 
 ACT OF 1892. 
 
 The legislature of New Jersey in 1891 passed an act 
 €<ntitled, "An act to secure the payment of laborers, mechan- 
 ics, merchants, traders and persons employed upon, or fur- 
 nishing, materials toward the performing of any work m 
 public improvement in cities in this state." Acts of 1891-, 
 p. 418, §§ 1-15, approved April 14, 1891. 
 
 In 1892 the legislature passed an act entitled, "An act to 
 secure the payment of laborers, mechanics, merchants, trad- 
 ers, and persons employed upon, or furnishing materials 
 toward the performing of any work in public improvements 
 in cities, towns, townships and other municipalities in this 
 state." Acts of 1892, p. 369, §§ 1-15, approved March 30, 
 .1892. 
 
 This later act was substantially the same as the act of 
 1891, with such changes as were necessary to make its provi- 
 sions applicable to all municipalities generally, and repealed 
 ■ the earlier act so far as it was inconsistent with its provisions. 
 
 Both these acts, as was pointed out in Delafield Co^. i\ 
 Say re, 31 Vroom 449, were copied from the New York 
 statute of 1878, c. 315, in nearly the same words. In that 
 case actions at law had been brought in the Es^x Circuit 
 Court to enforce liens claimed under this statute. The juris- 
 diction thus invoked was challenged, and on error, in the 
 Court of Errors and Appeals it was detennined that such 
 actions could not be brought at law, but must be instituted 
 in the Court of Chancery. The opinion (by Justice Dixon) 
 is so valuable a review of the provisions of the act that the 
 following liberal quotations are here made from it : 
 
 "On examining the statute it is perceived that, while it 
 provides for a civil action, it does not, in explicit terms, 
 declare where that action shall be brought, nor do the names 
 used ill relation to the procedure indicate the appropriate 
 tribunal, for, while some of them, e. g., summons, judgment, 
 (149)
 
 150 Mechanics Lien Law. 
 
 point to courts of law, others, e. g., answer, appeal, point to 
 the Court of Chancery. The enactment that, when separate 
 actions are commenced, the court in which the first action is 
 brought may consolidate them, is more significant, because it 
 suggests the possibility of suits being instituted in several 
 courts, and in this state there is but one Court of Chancery. 
 But since there is in our law no mode provided for consoli- 
 dating actions pending in different tribunals, this enactment 
 is futile, and should not be deemed of controlling force as an 
 indication of the legislative purpose with regard to the court 
 whose jurisdiction was to be invoked. It is only a circum- 
 stance to be considered in the inquiry. It loses some of the 
 force to which it otherwise might be entitled when we dis- 
 cover that our act is copied almost verbatim from a statute 
 of I^ew York, where there is no Court of Chancery, and 
 where legal and equitable remedies are administered by the 
 
 same tribunals. it appears in our statute 
 
 merely because the copyist lacked either the knowledge or 
 the forethought needed to suggest terms adapted to our judi- 
 ■cial system. 
 
 "The safest guide is to be found by considering 
 
 the nature of the rieht and the main features of the remedy* 
 proposed. 
 
 ""The right is one granted to those who perform labor or 
 furnish materials in the making of a public improvement in 
 any of the municipalities of this state, and it consists of a 
 lien upon the money in the control of the municipality due 
 or to grow due for such improvement, to the contractor who 
 owes for such labor or materials. After the claimant has 
 perfected his lien by filing due notice of his claim with the 
 proper officers of the municipality, he is to enforce it by a 
 civil action, in which the municipality, the contractor, and all 
 persons who may in like manner have secured liens on the 
 same fund, are to be made defendants, and in that action the 
 court is to determine the validity of each lien claim, the 
 amount due upon it, and the amount due to the contractor 
 from the municipality, and is to render judgment directing 
 the municipality to pay over to the several lienors the sums 
 found to be due to them respectively, so far as the fund will 
 go, and according to the priority prescribed by the act. The 
 statute also authorizes the contractor or the municipality to 
 institute a similar action for the determination of the claims,
 
 Municipal Improvements Act of 1892. 151 
 
 bringing before the court all |>ersons interested in the dispo- 
 sition of the fund. There is no provision for a personal 
 judgment against the contractor as a debtor, but the right 
 of the claimants to obtain such judgments against him in 
 other actions is expressly presented. 
 
 "Such suits as this statute contemplates are unknown to 
 the common law. There is a slight resemblance between 
 them and proceedings by attachment^ and to enforce the statu- 
 tory lien of mechanics and materialmen against real estate, 
 but these proceedings are much simpler and are brought in 
 the legal tribunals by express direction of the legislature. 
 
 "On the other hand, the remedy now under consideration 
 comes completely within the ordinary remedial functions of 
 the Court of Chancerv (citing and quoting from 1 Pom. Eq. 
 Jur. 95)." 
 
 The following table of cases which have arisen under this act 
 may be found useful. They are arranged in chronological order: 
 
 Trenton Comrs. v. Fell, 7 Dick. 689 ; s. e. 29 Atl. 816 ; 
 
 DeUfield Co. v. Sayre. 31 Vroom 449; s. c. 38 Atl. 666; 
 
 Camden Wks. v. Camden. 15 Dick. 211; s. c. 47 Atl. 220; s. c. 
 on app. 19 Dick. 723 ; 52 Atl. 477 ; 
 
 Garrison v. Borio, 16 Dick. 236; s. c. 47 Atl. 1060; 
 
 Norton v. Sinl-hom, 16 Dick. 508; s. c. 48 Atl. 822; s. c. on 
 app. 18 Dick. 313; 50 Atl. 506. 
 
 Hall V. Jersey City, 17 Dick. 489; s. c. 50 Atl. 603; s. c. on app. 
 19 Dick. 766; 53 Atl. 481. 
 
 Kelaher v. English, 17 Dick. 675; s. e. 50 Atl. 902; 
 
 Gatretson v. Clark, 57 Atl. 414. 
 
 Pierson v. Haddonfield, 21 Dick. 180 ; s. c. 57 Atl. 471 ; 
 
 Wilson V. Dietrich, 59 Atl. 250; 
 
 Roselle Park v. Montgomery, 60 Atl. 954; 
 
 Somers Co. v. Souders, 4 Kob. 388; s. c. 61 Atl. 840; s. c. on 
 app. 70 Atl. 158 ; 1 Buch. 759 ; 
 
 Herman & Grace v. Essex Co. Comrs., 64 Atl. 742; 1 Buch. 541; 
 aff. June term, 1907; 3 Buch. 415, 416, 417; 75 Atl. 1101; 
 
 United States Co. v. Newark. 66 Atl. 904; 
 
 Arzonico v. West New York, 69 Atl. 450; 
 
 Union Stone Co. v. Hudson Co., 1 Buch. 657; 65 Atl. 466. 
 
 National Fire Proof g. Co. v. Daly, 74 Atl. 152; 
 
 United States Co. v. Newark, 74 Atl. 192; 
 
 Hazard v. Bd. of Ed.. 75 Atl. 237; 
 
 The text of this act of 1892, with notes of decisions, in 
 cases arising under its provisions, is presented herewith.
 
 152 Mechanics Lien Law, 
 
 Lien given upon the contract price, to persons furnish- 
 ing labor or materials for any public improvement. 
 
 Section 1. Be it exacted hy the Senate and General 
 /\ AssemUy of the State of Neiv Jersey, That any person or 
 .A \ persons who shall hereafter as laborer, mechanic, merchant 
 ^\ or trader,^ in pursuance of, or in confonnity with the terms 
 of any contract for any public improvement made between 
 any person or persons and any city, town, township or other 
 municipality^ in this state authorized by law to make con- 
 tracts for the making of any public improvement, perform 
 any labor or furnish any material toward the performance 
 or completion of any such contract made with said city, town, 
 township or other municipality, on complying with the pro- 
 visions of this act, shall have a \ien for the value of such labor 
 or materials or either, upon the moneys in tlie control of the 
 said city, town, township or other municipality, due or to 
 grow due under said contract witli said city, town, township 
 or other municipality, to the full value of such claim or 
 demand, and these liens may be filed and become an absolute 
 lien to the full and par value of all sucli Avork and materials, 
 to the extent of the amount due or to gTOW due under said 
 contract, in favor of every person or persons who shall be 
 employed or furnish materials to the person or jDersons with 
 whom the said contract with said city, town, tow^iship or 
 other municipalitiy is made, or the sub-contractor of said 
 person or persons,^ their assigns or legal representatives; 
 provided, that liens may he filed o-rdy try such laborers, 
 mechanics, merchants or traders as s;hall hare performed any 
 labw or furnished any material toward the performance or 
 coTtipletion of any such contract directly for or to the person 
 or persons, with ivhom the said contract u-ith said city or 
 m^unicipality is made, or the sub-contractor of said person or 
 persons, their assigns or representatives, and no lien shall or 
 may he filed on hehalf of any laborer, mechanic, merchant or 
 trader, for labor performed or material furnished to any 
 other person that the said contractor with the said municipal- 
 ity or a, sub-contractor on any such coniraet, notwithstanding 
 such matenal may have been actually used in the perform- 
 ance of the said contract; prorided, further, that no city, 
 toMTi, township or other municipality shall be required to 
 pay a greater amount than the contract price or value of the
 
 MuNicn'Ai. Impkovements Act of 1892, § 1. 153 
 
 work and materials furnished, when no specific contract is 
 made in the performance of said work by the contractor.^ 
 
 The foregoing is the text of section 1, as amended by the 
 act of 1909, p. 260. The changes made by the amendment, con- 
 sisted in the insei-tion of the italicized word, provisions, in place 
 of the former reading, second section, and the new addition of 
 the other words which are above italicized. 
 
 1. A MANUFACTUKER OF IRON who furnishes ixon pipes 
 to a contractor building a city water works is, within the terms 
 of the statute, a mechanic, merchant or trader employed on or 
 furnishing materials for a public improvement. Camden Wks. 
 V. Camden, 15 Dick. 211 ; 19 Id. 723. 
 
 2. THE WORDS, "OTHER IVHTNICIPALITY," include a 
 county. Garrison v. Bono, 16 Dick. 236; Norton v. Sinl-horn, 
 16 Dick. 508; 18 Id. 313; Union Co. v. Hudson Co.. 1 Buch. 657; 
 Herman v. Essex Co., 64 Atl. 742; also a school district, Comrs. 
 V. Fell, 7 Dick. 689. 
 
 3. As the act originally read, it was held that the lien given 
 was not limited to claimants who furnished labor or materials 
 directly to the original contractor or his assigns, but extended 
 also to claimants who could show that their labor or materials 
 were furnished for, and used in, the improvement, although such 
 claimant were not a creditor of the original contractor or even 
 of his sub-contractor. This construction was first given by Vice 
 Chancellor Grey in the case of Garrison v. Borio, 16 Dick, 236, 
 and was followed, in the Court of Chancei-y, in the subsequent 
 cases of Wilson v. Dietrich, 59 Atl. 250 (Grey) ; Herman & Grace 
 Co V. Essex Comrs., 64 Atl. 742 (Emery) ; National, etc., Co v. 
 Daly 74 Atl. 152 (Stevens) ; and Hazard v. Bd. of Ed., 75 Atl. 
 237 (Howell). In Hall v. Jersey City, 19 Dick. 766, the Court of 
 Errors and Appeals had repudiated a dictum of Vice Chancellor 
 Pitney's in that case, 17 Dick. 489, which might have been taken 
 as asserting the same view, and had intimated plainly that they 
 deemed the true construction of the statute to be that the lien of 
 claimants must be limited to such only as were creditors of the 
 original contractor. There were very cogent reasons, we think, 
 which should have led that court to adhere to the consti-uction 
 that it thus intimated its approval of; but when the Herman and 
 Grace case came before it on appeal the decision was affirmed, 
 though without opinion (June term, 1907, see Arzomco v. West 
 New York 46 Vroojn 21; and see also Herm<in & Grace v. Essex 
 Co., 3 Buch. 415; Same v. Same, 3 Buch. 416; Same v. Say ward, 
 3 Buch. 417), and the construction given m Garrison v. Bono, 
 was thus approved. 
 
 By the amendment of April 19. 1909, the legislature has now, 
 apparently, enacted that the lien given extends to all creditors ot 
 the original contractor, or of his sub-contractor, or of their re-
 
 154 Mechanics Lien Law. 
 
 spective assigns or representatives, but not to any claimant who 
 is not such a creditor. 
 
 It was held in Garrison v. Borio, that the language of the fifth 
 section limits the right of a claimant, who is a creditor of a 
 sub-contractor, to the amount due from the contractor to such 
 sub-contractor at the time the claimant's notices of claim are 
 filed. If, at that time, the contractor has wholly discharged his 
 debt to his sub-contractor, the claimant can have no lien; if he 
 has discharged such debt in part, the claimant can have a lien 
 upon the fund to the extent only of the unpaid balance due from 
 the contractor to his sub-contractor. See also Meurer v. Kilgus, 
 75 Atl. 899 (Ch.). 
 
 THE LIEN GIVEN DOES NOT EXCLUDE THE CLAIM- 
 ANT'S EIGHT, IN A PROPER CASE, TO PROCEED UN- 
 DER § 3 of the mechanic's lien act by notice, etc. Arzonico v. 
 West A^./y Yn rh. fiP Atl /^ Th Delafield v. Sayre, 31 Vroom 449; 
 Camden v. Camden, 47 Atr220; Garrison v. Bo-rio. 47 Atl. 1060; 
 Norton V. Sinkhorn, 48 Atl. 822; s. c, 50 Atl. 506; Hall v. 
 Jersey City, 50 Atl. 603; Kelaher v. English, 50 Atl. 902. 
 
 4. It is difficult to read this PROVISO to any certain intent. 
 The conjecture is hazarded that it intends to say that when the 
 contract, between a claimant and the municipal contractor, for 
 work or materials supplied the latter, and by him used in the 
 performance of his contract with the municipality fails to si)ecify 
 the price to be paid therefor, the fund' shall be liable to such claim- 
 ant for such work or materials at no greater rate than that fixed 
 by the municipality's contract as the rate by which its contractor 
 is to be paid therefor. As some time has been spent in puzzling 
 over it, this note is given for what it may be worth. 
 
 We venture the comment that the legislature in the amend- 
 atory legislation of 1909 would have been wiser, if they had 
 reworded this proviso so as to make it intelligible, and if they 
 had limited the lien given to such claimants as are creditors of 
 the original contractor only. 
 
 Notices of claim when to be filed, and where. Con- 
 tents of such notice, and verification thereof 
 
 Sec. 2. And &e it enacted, That at any time before the 
 whole work to be performed by the contractor for any such 
 city, town, township or other municipality is completed or 
 accepted by said city, toAAii, township or other mimicipality, 
 and within fifteen days after the same is so compTeted or 
 accepted,^ any claimant may file with the chairman or head 
 of the department, council, Iward, bureau or commission 
 laving charge of said work, and with the financial officer^ of 
 said city, town, township or other municipality, notices stat- 
 ing the residence of the claimant,*'^ verified by his oath or
 
 Municipal Improvements Act of 1892, § 2. 155 
 
 affirmation, stating the amount claimed," from whom due,^ 
 and if not due, when it will be due,*' giving the amount of 
 the demand' after deducting all just credits and offsets,^ 
 with the name of the person by whom employed, or to whom 
 the materials were furnished^ ; also a statement of the terms, 
 time given, conditions of his contract,^" and also that the 
 labor was performed or materials were furnished to the said 
 contractor,^ ^ and were actually performed or used in the exe- 
 cution and completion of the said contract with said city, 
 town, to\mship or other municipality,^ ^ but no variance as 
 to name of the contractor shall affect the validity of the said 
 claim or lien ; pi-omded, however, that the filing of such notice 
 shall not operate as a lien against such moneys as may he due, 
 or to grow due, under the said contract, unless the person or 
 persons serving such iiotice shall, at the same time, file with 
 the financicd officer of the said iminicipality a bond in a sum 
 to he fixed by such financial officers not to exceied twenty per 
 centum of the amount claimed in said notice, which said bond 
 shall be conditioned for the payment of legal interest for the 
 time the said nionenjs may be withheld from the said con- 
 tractm^ in the edJent thai the said claimant does not perfect 
 his lien by instituting an action or that decree be made in 
 favor of the said contractor in any such action,, and cotidu 
 timied further for the payment of the costs of any such action 
 if judgment he for the coniractor. 
 
 This is the section as amended by 1909, p. 260, § 2, which added 
 the proviso which we have italicized. See also post, § 15. 
 
 1. THE CLAIM CAN BE FILED before the improvement is 
 completed; and has effect whether the contractor is proceeding 
 with the performance, or has abandoned it. Pierson v. Haddon- 
 field, 21 Dick. 180. . 
 
 The statute offers but two periods during which the notice ol 
 claim can be filed, viz.: (1) before the work is completed; and 
 (2) within fift-een days after it is either accepted or completed, 
 whichever comes first. Somers Co. v. Souders, 4 Rob. 388; aff. 
 70 Atl. 158 ; 1 Buch. 759. 
 
 2. The city comptroller is, par excellence, the FINANCIAL 
 OFFICER upon whom notice should be served. Hall v. Jersey 
 City, 17 Dick. 489; 19 Id. 766. 
 
 The district clerk, or the custodian of the school moneys ol the 
 district, are either of them the proper financial officer of the 
 school district; but the borough or township collector or treas- 
 urer, as such, is not. Hazard r Bd. of Ed., 75 Atl. 237.
 
 156 Mechajstics Lie2«^ Law. 
 
 The claimant must fQe the two notices required by the statute. 
 Hazard v. Br. of Ed., supra. 
 
 3. The affidavit annexed to the notice of claim is part of the 
 notice, and the CLAIMANT'S RESIDENCE is sufficiently stated, 
 if stated only in such affidavit. Hall v. Jersey City. 17 Dick. 
 489; 19 Id. 766. 
 
 If the claimant is a corporation its residence is sufficiently 
 stated by stating the State wherein it was incorporated. Hall 
 V. Jersey City, supra; National, etc., Co. v. Daly, 74 Atl. 152. 
 
 The statute requires all the particulars, which the notice must 
 set forth, to be verified by the claimant's oath; it does not mean 
 that the residence of the claimant is the only fact which is to be 
 thus verified. National, etc., Co. v. Daly, supra. 
 
 If the affidavit is not a general verification of the contents of 
 the notice but merely asserts that the notice is a true account of 
 materials furnished together with dates and prices, it does not 
 verify the terms, time given, and conditions of the claimant's con- 
 tract, although those particulars are also stated in the notice. 
 National, etc., Co. v. Daly, supra. 
 
 4. A claim is wholly void, if it be for a greater sum than is in 
 fact due, when the OVER-CLAIM is made with conscious fraud, 
 on the part of the claimant, Camden Wks. v. Camden, 15 Dick. 211 ; 
 19 Id. 723; and fraud will be presumed when the claimant must 
 have known that it was an over-claim; and the same result may 
 be reached if the over-claim is attributable to the claimant's 
 gross carelessness. Camden Wks, v. Camden, supra. But a claim 
 will be good for the real sum due, when the over-claim is due to 
 excusable inadvertence, or a justifiable doubt as to the legality 
 of the excessive portion of it. Camden Works v. Camden, supra; 
 Garrison v. Borio, 16 Dick. 236; Hall Co. v. Jersey City, 17 Dick. 
 489; 19 Id. 766. 
 
 It is proper for a claimant to include in his notice of claim 
 items for materials supplied to him, although such materialman 
 might also make valid claim upon the fund therefor. Hazard v. 
 Bd. of Ed., 75 Atl. 237. 
 
 The wording of the section is very different from the language 
 of § 3 of the Mechanics Lien Act, as it stood prior to the amenda- 
 tory act of 1910, p. 500, and under which it was held to be 
 fatal to give notice for a sum in excess of the amount that proves 
 to be actually due such claimant. There the words were: "When- 
 ever any masterworkman or contractor shall, upon demand, re- 
 fuse to pay to any person, etc., the money or wages due to him, it 
 shaU be the duty of such, etc., to give notice, etc., of the amount 
 due to him or them and so demanded." Here there is no require- 
 ment that a claimant shall have made demand, and met with re- 
 fusal, before he can give notice; it is expressly provided that 
 such notice may be given before the claimant's compensation is 
 due to him at all; and it is required that the amount to be stated 
 in the notice shall be the amount claimed, and not the amount 
 that is actually due or to grow due.
 
 Municipal Improvements Act of 1892, § 2. 157 
 
 7. When the claimant holds an unmatured note for part of his 
 claim, he sufficiently states "THE AMOUNT OF THE DE- 
 MAND after deducting all just credits," by stating that the 
 amount due is a certain sum and that the amount to grow due is 
 a certain sum (viz.: the amount of the note). Hall v. Jersey City, 
 supra. 
 
 8. It is not necessary that the notice shall use the statutory 
 words, "after deducting all just credits and offsets." Hall Co. v. 
 Jersey City, supra. 
 
 9. The notice sufficiently states the NAME OF THE PERSON 
 to whom the materials were furnished, when it states the name of 
 the person who contracted with the city and describes the con- 
 tract so as to identify it. Hall v. Jersey City, 17 Dick. 489. See 
 post, note 10. 
 
 10. The notice sufficiently states the "TERMS, TIME GIVEN, 
 and conditions of HIS contract," when it gives the name of the 
 city's contractor and describes the contract between him and the 
 city, its filing, etc., so as clearly to identify it, and says that the 
 lien is claimed on the money due and to grow due on that contract. 
 Hall V. Jersey City, 17 Dick. 489. This was Vice Chancellor 
 Pitney's view, that his contract means the contract of the city's 
 contractor and not that of the claimant. In the Court of Errors 
 and Appeals, however, this view was questioned, and some of the 
 judges there thought that the claimant's contract was the one 
 intended. The question was left unsettled as the claimant in that 
 case furnished the materials upon a fixed scale of prices, but 
 upon orders given from time to time; so that there was no con- 
 tract entered into in advance of the delivery of the materials, and 
 nothing which could be stated under the statute, if it did refer 
 to the claimant, in the word, "his." The opinion, however, cau- 
 tions careful practitioners to draw such notices, to cover either 
 
 view. 
 
 In the recent case of National, etc., Co. v. Daly, 74 Atl. 152, 
 V. Ch. Stevens adopts, as the more reasonable, the view that the 
 contract intended is the claimant's contract. 
 
 When the claimant's notice annexes an invoice which gives 
 the dates, kind of materials furnished, and prices with the words, 
 "terms net 30 days, goods f. o. b. New York," it sufficiently states 
 the terms, time given, and conditions of claimant's contract. Na- 
 tional, etc., Co. V. Daly, supra. 
 
 No lien can be claimed for materials which have not. at the 
 date of the notice, been actually used in the improvement, al- 
 though supplied to the contractor for that purpose. National, etc.. 
 Go. V. Daly, 74 Atl. 152; Hazard v. Bd. of Ed., 75 Atl. 237; but 
 a statement, that the materials have been supplied on and about 
 a school building that has been completed, sufficiently alleges that 
 they have been actually used in the completion of such build- 
 ing. National, etc., Co. v. Daly, supra.
 
 158 Mechanics Lien Law. 
 
 Entry of notices. Lien Book. Scope of Record. 
 
 Sec. 3. And be it enacted. That the financial officer of 
 said city, town, township or other municipality shall enter the 
 claims in a book kept for that purpose by him, called the 
 "lien book;" such entry shall contain the name and residence 
 of the claimant, the name of the contractor, the amount and 
 date of the filing, and a brief desigiiatiou of the contract 
 upon which the claim is made. 
 
 Action to enforce lien. Limination. 
 
 Sec. 4. And he it enacted, That no lien provided for in 
 this act shall be binding upon the property therein described, 
 unless an action be commenced within ninety days from the 
 filing of the same,^ and a notice of pendency of said action 
 be filed with the financial officer of said city, tovm, township 
 or other municipality. 
 
 The act of 1909, p. 260, § 3, says that it amends this section, 
 but it makes no change in it, in fact, beyond inserting a comma 
 after the word, township. 
 
 1. The requirement is peremptory. If suit be not begun within 
 ninety days after the claim is filed, the lien is lost. Roselle Park 
 V. Montgomery, 60 Atl. 954; Sormrs Co. v. Souders, 4 Rob. 388; 
 70 Atl. 158 ; Hazard v. Bd. of Ed., 75 Atl. 237. 
 
 When lost by failure to bring suit, the lien cannot be revived 
 by any act of the municipality, Roselle Park v. Montgomery; 
 Somers Co. v. Souders, supra. 
 
 Neither will a claim be aided by the fact that the solicitor of 
 the municipality has acknowledged service of subpoena. Hazard 
 V. Bd. of Ed., supra. 
 
 It is not necessary, however, that each claimant give a separate 
 notice, it is enough that any one of the parties in the suit give 
 actual notice, stating the character of the suit and the names of 
 the parties; and such notice will avail for all who are named in 
 it as parties, although not for any party who is not named in it. 
 NatioiKil, etc., Co. v. Daly, 74 Atl. 152; Hazard v. Bd. of Ed., 
 supra. As said in the Daly case the notice need not be entitled 
 in the cause, and may be by letter, but it must itself give actual 
 notice of each claim that would avail itself of its benefit, and not 
 merely put the municipality ui)on its enquiry as to the names of 
 the parties claimant. 
 
 Accrual of Lien. 
 
 Sec. 5. And he it enacted. That the lien shall attach 
 from the time of filing thereof^ to the extent of the liability
 
 Municipal Improvements Act of 1892, § 6. 159 
 
 of the contractor for the claim preferred upon any funds 
 which may be due or to grow due to said contractor from said 
 city, town, township or other municipality under the contract 
 against which the lien is filed,^ provided, however, that the 
 funds due or to grow due to the said contractor from said city, 
 town, township or other municipality may he released and 
 paid to the said cmdractor by the financial officer of said city, 
 town, township or other municipality upon the filing urith 
 such financial officer of a hond in double the sunt' of all claims 
 filed under th^e provisions of this act against the said con- 
 tractor, or the fundiS due or to grow due to him, conditioned 
 for the payment of such sum or suins as may be decreed to be 
 due from, the said contractor under any such claims, wliich 
 bond shall be approved as to form, by the chief law officer 
 of such municipality, and as to sufficiency by the financial 
 officer with whom it is filed. 
 
 This is the section as amended by the act of 1909, p. 260, § 4, 
 which added the proviso which we have italicized. 
 
 1. The claimant has no inchoate lien before he files his notice, 
 Somers Brick Co. v. Souders, 4 Rob. 388; aff. 70 Atl. 158; his 
 lien arises when he files his claim, not when he furnishes the 
 labor or material. Somers v. Souders, post; Garretson v. Clark, 
 57 Atl. 414; Pierson v. Haddonfield, 21 Dick. 180. 
 
 2. When filed, the claim is a lien on what is then due the con- 
 tractor and what may thereafter grow due. Pierson v. H addon- 
 field, supra. 
 
 "There is no prohibition in the act against anticipated payments, 
 no inchoate lien on the fund, and no provision making the owner 
 who prepays liable to a subsequent claimant. Somers Brick Co. 
 V. Souders, 4 Rob. 388; aff. 70 Atl. 158. 
 
 A creditor of a sub-contractor can reach the fund only to the 
 extent of the debt then due from the contractor to such sub-con- 
 tractor. See note 3 to § 1, ante. 
 
 Parties complainant in action to enforce lien, or to ter- 
 minate same. 
 
 Sec. 6. A7id be it enacted. That any claimant who has filed 
 the notice mentioned in the second section of this act, may 
 enforce his claim against the said fund therein designated 
 and against the person or persons liable to the debt by a 
 civil action,^ actions to determine or terminate said lien? 
 may be commenced by the contractor or said city, to^vn, town- 
 ship or other municipality in any court of competent juris-
 
 160 Mechanics Lien Law. 
 
 diction.^ // m any such action the c&niractov, or other party 
 defendant, at any time prim- to final heawimj shall file an affi- 
 davit setting fo7'th any matter or thing which would he a valid 
 defense at law on his behalf to any suit wherein the said 
 claimant uras plaintiff, hut which matter or thing cannot he 
 set up in defense in such action, all further proceedings in 
 such action shall thereupon he stayed until the determination 
 of the said matters or things so set out in such affidavit hy 
 a court of law, and, unless the said claimant shall institute a 
 suit at law within thirty days thereafter for the recovery 
 of the amiount of the said claim, his hill shall he dismissed 
 with costs. The record of any judgment in any such suit 
 at law, so instituted, 7nay be set up in the said action, and 
 shall be conclusive as to so much of the amount of said lien 
 claim as may have been at issue in the said suit. 
 
 This is the section as amended by the act of 1909, p. 260, § 5, 
 the amendment consists in the addition of the words which we 
 have italicized. 
 
 1. A bill to enforce a claim for less than $50 will not be enter- 
 tained. Kellaher v. English, 17 Dick. 675. 
 
 The claimant's debt is assignable, and passes the right of lien 
 to the assignee, together with the right to enforce it. Hall v. 
 Jersey City, 17 Dick. 489 ; 19 Id. 766 ; but the assignment of his 
 claim, by a sub-contractor, does not give the assignee any lien 
 upon the fund, until the necessary notices of claim have been 
 duly filed, National Fire Proof g Co. v. Daly, 74 Atl. 152. It would 
 seem that the assignor must in such a case verify the notices. 
 
 An assignment of claim is good from its date, and, as against 
 other claimants, it does not need to be perfected by notice given 
 the owner in order to be operative. United States Co. v. Newarh, 
 74 Atl. 192. 
 
 A negotiable draft, not payable out of any specific fund, can- 
 not be regarded as an equitable assignment, pro tanto, of any 
 given fund. Roselle Park v. Montgomery, 60 Atl.. 954. 
 
 The suit to enforce the lien given by this act must be brought 
 in the Court of Chancery. Delafield v. Sayre, 31 Vroom 449. 
 
 A claimant, who is made defendant in a suit brought by an- 
 other claimant, need not institute a separate suit upon his own 
 claim. National, etc., Co. v. Daly, supra. 
 
 A claimant, holding an order for his debt, does not waive his 
 rights thereunder by also filing his bill to enforce his lien. Som- 
 ers V. Souders, 70 Atl. 158; reversing s, c, 4 Rob. 388, as to this 
 point. 
 
 Taking an assignment from a sub-contractor does not prevent 
 a materialman from also claiming and enforcing his lien for such 
 materials. Neither does the contractor's bankruptcy avoid the lien 
 of claimants. National, etc., Co. v. Daly, 74 Atl. 152.
 
 Municipal Improvements Act of 1892, § 8. 161 
 
 2. There can be no personal judgment given in favor of the 
 contractor and against the municipality, in case the fund exceeds 
 all the claims. Norton v. Sinhhorn, 18 Dick. 313; United States 
 Co. V. Newark, 66 Atl. 904. 
 
 Parties defendant; process; notices of object of suit; 
 answers; determination of priorities. 
 
 Sec. 7. And be it enacted, That the plaintiff must make 
 all parties who have filed claims, the contractor and the said 
 city, town, township or other municipality, parties defend- 
 ant,^ and as to all parties against whom no personal claim 
 is made, the plaintiff may, with the summons, serve a notice 
 stating briefly the object of the action, and that no personal 
 claim is made ; but all parties who have filed claims under 
 this act may, by answer in such action,^ set forth the same, 
 and the court in which the action is brought may decide 
 as to the extent, justice and priority of the claims of all 
 parties to the action.^ 
 
 1. The debt due from the municipality to the contractor is at- 
 tachable, Roselle Park v. Montgomery, 60 Atl. 954; and an at- 
 taching creditor should be made a defendant, to cut off his rights. 
 
 2. If a claimant hold also an order for his debt, and the other 
 claimants so allege, denying its priority, he may assert its prior- 
 ity in his answer, and have it established as prior, notwithstand- 
 ing he has not himself, in his own bill, to enforce his lien under 
 his notice, set up such order. Somers Co. v. Souders, 70 Atl. 158; 
 reversing s. c, 4 Rob. 388, on this point. 
 
 3. See the succeeding section, note 3. 
 
 Scope of judgment; Form of same ; Execution; Appeal 
 
 Sec. 8. And he it enacted. That the court in which the 
 action is brought shall determine the validity of the lien,^ 
 the amount due from tlie debtor to the contractor under his 
 contract,^ and from the contractor to the respective claim- 
 ants,"^ and shall render judgment, directing- that the said city, 
 town, township or other municipality shall pay over to the 
 claimants for the work done and the materials furnished in 
 the execution of said contract or contracts, whose claims or 
 liens it shall hold to be valid and just, in the order of their 
 priority as determined by said court to the extent of the 
 sum found due to said claimants from the contractor, so 
 much of said funds or monev wliich mav be due from the 
 11
 
 162 Mechanics Lien Law. 
 
 said city, town, township or other mimicipalitj to the con- 
 tractor, under his contract, against which the lien is filed, as 
 will satisfy their liens or claims, with interest and costs, to 
 the extent of the amount due from said city, town, township 
 or other municipality to said contractor;"* the judgments 
 rendered under this act may be enforced by execution and 
 an api>eal may be taken therefrom in the same time and 
 manner as in civil actions. 
 
 3. The contractor cannot avail himself of any claim by way of 
 SET OFF against any of the lien claimants; but he may and 
 shovdd, set up any right to reduce a claim that he may have, even 
 for unliquidated damages, if resulting from the claimant's fail- 
 ure to perform obligations devolving upon him by the same coai- 
 tract on which such claimant bases his own right. Norton v. SinJc- 
 horn 18 Dick. 313, reversing s. c, 16 Dick. 508, so far as it 
 denied such right or RECOUPMENT, and affirming its denial 
 of the right to exhibit a cross bill to recover such damages. 
 
 4 Proceedings to enforce tb • liens given by this act are pro- 
 ceedings QUASI IN REM ai d are limited to ascertaining the 
 rights of the parties in respect of the contract price and directing 
 payment thereof accordingly. Norton v. Sinlchorn, supra. 
 
 The statute contains no provision which authorizes the court to 
 give a personal judgment against the contractor, as a debtor, 
 Delafield Co. v. Sayre, 31 Yroom 449; Garrison v. Borw, 16 Dick. 
 236; Norton v. Sinlchorn, supra; neither can there be a personal 
 decree in favor of the contractor and against the municipality, in 
 case the fund exceeds all the claims. Norton v. Sinkhorn. supra; 
 United States Co. v. Newark m Atl. 904. T>yT)jJCV 
 
 If the contractor alleges m his answer a RiCxHi iO KihUV^tj 
 A CLAIM because of unliquidated damages sustained through 
 such claimant's default, the proceedings in the Court of Chan- 
 cery will be stayed to permit such damages to be first ascertained 
 at law. Norton v. Sinlchorn, supra. . 
 
 The court cannot compel the payment of claims, nor determine 
 their ascertainment, until the contract for the improvement is 
 completed. Pierson v. Haddonfield. 21 Dick. 180. 
 
 If the contractor ABANDON the work and his sureties com- 
 plete it, the latter are entitled, by subrogation, to so much of the 
 fund as will reimburse them for their necessary outlay in so 
 doing; and their right is superior to the right of claimants 
 who have furnished the contractor work or materials. Umon 
 Stone Co. v. Hudson Co., 1 Buch. 657 (V. C. Garrison), follow- 
 ing St. Peter's Church v. Van Note, 21 Dick. Y8; and dissenting 
 from Vice Chancellor Grey's view, in Pierson v. Haddonfield, 21 
 Dick. 180; that the rights of such claimants are superior to those 
 of the sureties in such a case. 
 
 Wlien a contract provides that if the contractor abandons the 
 work, the municipality may let a new contract and charge the ex-
 
 Municipal Improvements Act of 1892, § 10. 16^ 
 
 pense to the original contractor, the letting of such new contract, 
 it is said, will, of course, cut off the creditors of the original con- 
 tractor, in respect of any part of the contract price unearned at 
 the time of such abandonment. Union Stone Go. v. Hudson Co., 
 supra; but if the contractor's sureties, upon such abandonment, 
 take up and complete the work, there is no new contract made 
 whereby the creditors of the contractor may be cut off, as to such 
 unearned part of the contract price. Union Stone Co. v. Hud- 
 son Co. 
 
 The right of the claimant is, of course, subject to the superior 
 rigEt of the municipality to charge first, against the fund, the 
 cost of completing the abandoned work. Somers Co. v. Souders, 
 4 Eob. 388; 70 Atl. 158. 
 
 Laborers claims preferred. Otherwise priorities as per 
 date of notice filed. Determination of priorities. 
 
 Sec. 9. And be it enacted, That in case of a number of 
 liens in favor of different persons, their rights and priorities 
 shall be determined as follows: persons standing in equal 
 degrees as co-laborers or persons furnishing materials shall 
 have priority according to the date of the filing of their 
 liens ; but laborers shall have a lien prior to other liens, upon 
 filing their notices any time before payments are due and 
 made, when several lien notices are filed for the same 
 demand, the judgment shall provide for the proper payments 
 according to priority, so that under liens filed, double pay- 
 ments shall not be required. 
 
 Where there are two claims filed at the same time, and there 
 is not money enough to pay both, they take pro rata. Wilson v. 
 Dietrich, 59 Atl. 250. 
 
 Consolidation of Actions. 
 
 Sec. 10. And he it enacted, That when separate actions 
 are commenced, the court in which the first action was 
 brought may upon the application of said city, town, town- 
 ship or other municipality consolidate them. 
 
 The proper practice is thereafter, on the application of the 
 municipality, to have the suits of all the claimants consolidated. 
 Somers Co. v, Souders, 4 Kob. 388; 70 Atl. 158.
 
 164 Mechain^ics Lien Law. 
 
 Costs discretionary. 
 
 Sec. 11. And be it enacted. That costs in all actions shall 
 rest in the discretion of the conrt and shall be awarded to 
 or against the plaintiff or defendants, or any or either of 
 them, as may be just. 
 
 Costs should be given ag-ainst any party only when, and to the 
 extent that, he has unsuccessfully contested another's claim, or 
 asserted his own. The normal costs of the proceeding should be 
 paid out of the fund. Hall v. Jersey City. 19 Dick. 766; Rev. 
 17 Dick. 489. 
 
 Determination no bar to personal action against debtor 
 
 Sec. 12. And be it enacted. That nothing contained in this 
 act shall be constructed to impair or affect the right of any 
 person to whom any debt may be due for work done or mate- 
 rials furnished, to maintain a personal action to recover 
 such debt against the person liable therefor. 
 
 Claimants may obtain personal judgments against the con- 
 tractor, in proi>er actions at law, notwithstanding suit has been 
 brought to enforce their right of recourse against the fund. Dela- 
 field Co. V. Sayre, 31 Vroom 419. 
 
 Discharge of hen by certificate; lapse of time without 
 Buit; satisfaction of judgment. 
 
 Sec. 13. And be it enacted, That the lien may be dis- 
 charged as follows : first, by filing a certificate of the claim- 
 ant or his successor in interest, duly acknowledged and 
 proved, stating that the lien is discharged ; second, by lapse 
 of time, when ninety days have elapsed since the filing of 
 the claim and no action shall have been commenced to enforce 
 the claim ; third, by satisfaction of any judgment that may 
 be rendered in actions to foreclose said liens or claims; 
 fourth, by dismissal of the bill as Ke<r&vnhefore provided; 
 fifth, by final decree of the Court of Chancery in the action.. 
 
 This is the section as amended by the act of 1909, page 260, 
 § 6. The amendment added the words which we have italicized. 
 
 Construction of Terms. 
 
 Sec. 14. And be it enacted. That the term ''contractor" as 
 used in this act, shall be construed as meaning the person
 
 Municipal Impkovements Act of 1892, § 15. 165 
 
 ■with whom the contract with the said city, town, township 
 or other municipality is made, his assigns or legal repre- 
 sentatives. 
 
 Time of taking effect. Repealer. 
 
 Sec. 15. And be it enacted. That this act shall take effect 
 immediately; but nothing herein contained shall affect the 
 validity of any claims or liens upon moneys due or to grow 
 due under contracts made by cities, towns, townships or other 
 municipalities in this state prior to its passage ; promded. 
 however, that all the proceedings to enforce any such claims 
 or liens shall be subject to the provisions of this act so far 
 as the same may be applicable; and all acts and parts of acts 
 inconsistent with the terms of this act are hereby repealed. 
 
 This is the section as amended by the act of 1909, p. 260, § 7, 
 by the insertion of the words which we have italicized. 
 
 In Howell Lumber Co. v. New Brunswick, 75 Atl. 750 (Ch.), 
 it is held that the "proceedings" referred to are the proceedings in 
 court and that a claim due under a contract made prior to the 
 act of 1909, is duly filed, although no bond be filed with it.
 
 CHA-PTER IV. 
 
 FORMS. 
 
 <167
 
 FORMS, 
 
 1.— Common form of building contract. ? 2. 
 
 ARTICLES OF AGREEMENT, Made the firet day of 
 May, One Thousand jS^ine Hundred and Two. 
 BETWEEiSr John Carpenter (called hereinafter the owner) 
 of the Village of Hackensack, in the County of Bergen and 
 State of Xew Jersey, of the First Part; 
 AND Thomas Romaine (called hereinafter the huilder) of 
 the Village of Hackensack, in the County of Bergen and 
 New Jersey, of the Second Part ; 
 
 WITNESSETH,— The said party of the second part doth 
 hereby for him, his heirs, executors and administra- 
 tors, covenant, promise and agree to and with the said 
 party of the first part, his executors, administrators or 
 assigns, that he said party of the second part his executors 
 or administrators shall and will for the consideration herein- 
 after mentioned, on or before the first day of March next 
 well and sufficiently erect and finish the four story brick 
 building to be erected for the said party of the first part on 
 the lands to him belonging, situated on the easterly side of 
 Monroe Street, in the said Village of Hackensack, and known 
 as lot No. 42 on a certain Map entitled, "Map of Hacken- 
 sack Park" agreeably to the Drawings and Specifications 
 made by Joseph Story, Architect,* and signed by the said 
 parties and hereunto annexed, within the time aforesaid, 
 in a good workmanlike and substantial manner, under the 
 direction of the said Architect,^ to be testified by a writing, 
 or certificate, under the hand of the said Architect, as here- 
 inafter mentioned, and, also, shall and wall find and provide 
 such good, proper and sufficient materials of all kinds what- 
 soever, as shall be pix)per and sufficient for the completing 
 and finishing of all the works of the said Building mentioned 
 in the plans and specifications for the sum of Fifteen Thou- 
 sand Dollars to be paid as is hereinafter specified. 
 (169)
 
 170 Mecuanics Lien Law. 
 
 AIS^'D the said party of the first part doth hereby, for him, 
 his heirs, executors and administrators, covenant, promise 
 and agi'ee, to and with the said party of the second part, his 
 executors and administrators, that he the said party of the 
 first part, his executors and administrators, shall and will, 
 in consideration of the covenants and agreements being 
 strictly performed and kept hy the said party of the second 
 part as specified, well and truly pay or cause to be paid unto 
 the said party of the second part his executors, administra- 
 tors or assigns, the sum of Ffteen Thousand Dollars, law- 
 ful money of the United States of America, in manner 
 following : 
 
 Five Thousand Dollars when the foundation of said build- 
 ing is completed : 
 
 Five Thousand Dollars when the building is roofed and 
 ready for plastering ; and the remaining sum of 
 
 Five Thousand Dollars sixtv days after the building is 
 entirely completed. 
 
 PROVIDED, that in each of the said cases, a certificate 
 shall be produced, signed by the said Architect, to the effect 
 that the work is done in accordance with said Drawings and 
 Specifications, said certificate, however, in no way lessening 
 the total and final responsibility of the Builder ; neither shall 
 it exempt the Builder from liability to replace work, if it be 
 afterwards discovered to have been done ill, or not according 
 to the Drawings and Specifications, either in execution or 
 materials.^ 
 
 And it is hereby further a^eed by and between the 
 the said parties: 
 
 First. — The Specifications and the Drawings are intended 
 to co-operate, so that any works exhibited in the Drawings, 
 and not mentioned in the Specifications, or Vice Versa, are to 
 be executed the same as if they were mentioned in the Speci- 
 fications and set forth in the Drawings to the true meaning 
 and intent of the said Drawings and Specifications, with- 
 out any extra charge Avhatsoever. Copies thereof certified 
 by the Architect to be true copies shall be furnished to the 
 Builder. 
 
 Second. — The Builder at his own proper cost and charges, 
 is to provide all manner of materials and labor, scaffolding;
 
 Forms. 171 
 
 implements, moulds, models and cartage, of every descrip- 
 tion for the due performance of the several erections. 
 
 Third. — Should the Owner at any time during the pro- 
 gress of the said Building request any alterations, deviations, 
 additions or omissions, from the said contract, he shall be 
 at liberty to do so, and the same shall in no way affect or 
 made void the contract, but will be added to or deducted from 
 the amount of the contract, as the case may be, by a fair and 
 reasonable valuation.^ 
 
 Fourth. — Should the Builder, at any time during the 
 progress of said works, refuse or neglect to supply a suffi- 
 ciency of materials or workmen, the Owner shall have power 
 to provide materials and workmen, after three days' notice 
 in writing being given, to finish the said works, and the 
 expense shall be deducted from the amount of the contract.* 
 
 Fifth. — Should any dispute arise respecting the true con- 
 struction or meaning of the Drawings or Specifications, the 
 same shall be decided by the said Joseph Story, Architect, 
 and his decision shall be final and conclusive; but should 
 any dispute arise resi>ecting the true value of the extra work, 
 or tlie works omitted, the same shall be valued by two com- 
 petent persons — one employed by the Owner, and the other 
 by the Builder — and those two shall have power to name an 
 umpire, whose decision shall be binding on all parties. 
 
 Sixth — The Owner shall not, in any manner, be answer- 
 able or accountable for any loss or damage that shall or may 
 happen to the said works, or any part or parts thereof respec- 
 tively, or for any of the materials or other things used and 
 employed in finishing and completing the same. 
 
 Seventh. — 1^6 alterations or extra work shall be done with- 
 out a written order from the Owner, approved by the Archi- 
 tect and an express agreement in writing as to the cost.^ 
 
 Eighth. — The Owner will insure the building in the joint 
 names and interest of himself and the Builder against loss or 
 damage by fire, in such sums as may from time to time be 
 agreed ujwn with the Builder to cover the work and materials 
 used in the building and around the premises, and the poli- 
 cies shall be made payable to Owner and Builder, as their 
 interests may appear. The Builder shall see to it that this 
 insurance is satisfactorily effected. 
 
 Ninth. — All work and materials, delivered on the premises 
 to form part of the works, are to be considered the property
 
 172 Mechanics Lien Law. 
 
 of the Owner, and are not to be removed without his consent ; 
 but the Builder shall have the right to remove all surplus 
 materials after the completion of the works. 
 
 Tenth. — Neither the Builder nor the Architect shall, with- 
 out the written consent of the O^viier, have authority to vary, 
 alter, amend or change this contract, or any of the Plans or 
 Specifications herein referred to. 
 
 Eleventh. — Whenever building permits shall be required 
 by any municipality, or be necessary under any law, ordin- 
 ance or other regulation, to the erection, alteration or repair 
 of any building, the same shall be procured by the Owner. 
 
 Twelfth. — And it is further agTeed that the said con- 
 tractor shall file no lien for any labor or material furnished 
 under this contract, and that no sub-contractor, or other per- 
 son, for any work done, or materials furnished, shall have 
 any right to file any lien for any sum which may be, or 
 become, due to such person, and that the right to file any 
 such lien is hereby expressly waived by and on behalf of the 
 said contractor and every other person aforesaid.*' 
 
 Thirteenth. — The builder before any payment under this 
 contract is demandable will procure at his own cost and 
 expense and tender the releases of any persons who might 
 make claim to have a lien upon the said building and curti- 
 lage, or to have a right of recourse to the moneys in the 
 owner's hands due, or to grow due, to the said builder under 
 the terms of this contract for materials or labor furnished 
 for the said building and will also, accompanying said re- 
 leases, tender his affidavit that the persons executing the same 
 are the only persons who have, or may have, any right of lien 
 against said building, or of recourse against said moneys by 
 reason of work done, or materials furnislied for the said 
 building, but this stitpulation is solely for the benefit and 
 protection of the owner, and he shall not be in anywise liable 
 or answerable to anyone whatsoever, nor shall any one be 
 entitled, as against the owner, to assert any right of lien, 
 inchoate or otherwise, upon the moneys due or to grow due 
 under this contract to said builder, by reason of the provi- 
 sions of this stipulation, or by reason of any act or omission, 
 on said owner's part, pursuant to, or in waiver or disregard 
 of its provisions ; neither shall any pa^nnent made by said 
 owner to said builder in waiver or disregard of the provisions 
 of this stipulation impair, in anywise, said o^\Tier's right to
 
 Forms. 173 
 
 insist upon a compliance with its requirements by the builder 
 as to any payments thereafter to mature." 
 
 Fourteenth. — It is further agreed that the builder shall 
 not, without the assent of the owner, assign this contract, nor 
 the moneys due or to grow due to said builder thereunder ; 
 and that all and every of such assignments, if made, shall 
 be null and void at the option of the owner (or better, shall 
 be null and void as to the owner).** 
 
 Fifteenth. — It is further agi'eed that if the builder fails 
 to complete the said works by the first day of March next, 
 he shall forfeit, and pay, the sum of twenty dollars for each 
 and every day thereafter during which the said work shall 
 remain incomplete, to be deducted from his compensation 
 hereinbefore agreed upon.^ 
 
 In WITNESS WHEREOF, the said parties to these 
 presents, have hereunto set their hands and seals the day 
 and year above written. 
 
 Witness. THO^JiAS ROMAINE (Seal). 
 
 M. D. JOim CARPENTER (Seal). 
 
 *The specifications and plans referred to in this contract should 
 be also signed by both parties, and one set of them with a dupli- 
 cate original of this contract should be filed in the county clerk's 
 office. 
 
 If the contract be for an addition or alteration, or for repairs, 
 or for the removal of a building, it will be readily seen how to 
 vary its form accordingly. 
 
 So too, this form can be readily varied to meet the case of a 
 contract to do a part only of the work of erecting a building. 
 
 1. It is part of the architect's duty to see that things are safe, 
 that the place is taken care of; to see whether the work is going 
 on, and to tiotify the contractor to proceed and complete his work. 
 Federal Trust Co. v. Guigues, 74 Atl. 652. 
 
 The architect is not authorized to waive any provision on behalf 
 of the owner. VanBushirk v. Bd. of Ed., 75 Atl. 909. 
 
 2. No action can be maintained unless this certificate has first 
 been obtained; unless it can be shown that it has been fraudu- 
 lently withheld, or its production waived by the owner. Byrne 
 V. Sisters, etc., 16 Vroom 213; Chism v. Schipper, 22 Vroom 1; 
 Bemz V. Marcus Sayre Co., 7 Dick. 275; Kirtland v. Moore, 13 
 Stew. 106; Welch v. Huhschmidt Co., 32 Vroom 57; Bradner 
 V. Roffsell, 28 Vroom 412; Machinson v. Gonlon, 26 Vroom 564: 
 Sheyer v. Pinkerton Co., 59 Atl. 462; Steelmari v. Ludy, 72 Atl. 
 423; Federal Trust Co. v. Guigues, 74 Atl. 652. 
 
 It also applies to payments for extra work as well as all other
 
 174 Mechanics Lien Law. 
 
 payments for work done pursuant to the contract. Sheyer v. 
 Pinherton Co., 59 Atl. 462. 
 
 The provision is binding on the owner, in respect of claimants, 
 who may give notice under §3, and if the owner pays the con- 
 tractor, without first obtaining the certificate, when it is not un- 
 reasonably, or fraudulently, withheld by the architect, he will be 
 liable to such claimants, as though he had not paid, although 
 the building was in fact completed at the time of such payment. 
 Daly V. Somers Co., 4 Kob. 343 ; s. c, aff. 1 Buch. 307. 
 
 But it seems that when an architect is discharged by the owner, 
 he ceases to be competent, thereafter, to give the certificate which 
 the contract stipulates for; and the claimant is thereby relieved 
 from the obligation to procure it, if the contract makes no pro- 
 vision covering the case. Federal Trust Co. v. Guigues, 74 Atl. 
 652. 
 
 The architect's certificate is properly given although there be 
 some slight things still undone when they are so left to aid the 
 further progress of the work and it is customary to consider that 
 the general terms used do not call for them to be fully completed. 
 Veitch V. Clark, 1 Rob. 57. 
 
 3. Labor and materials furnished under this clause are fur- 
 nished, pursuant to the contract, inasmuch as the contractor is 
 bound to furnish them upon the owner's demand. WiUetts v. 
 Earl, 24 Vroom 270; Dunn v. Stokeni, 16 Stew, 401; but when 
 a contract provides that the parties thereto may agree to altera- 
 tions in the building at any time during its construction without 
 altering or invalidating this agreement, such a clause does not 
 entitle the owner to demand, nor bind the contractor to make al- 
 terations or additions, and if they are so agreed upon and made, 
 they are not pursuant to the contract, but independent of it. 
 South End Im'provement Co. v. Harden, 52 Atl. 1127. 
 
 4. This clause does not entitle the contractor, or his assignee, 
 to require the owner to complete the work and account for the 
 balance of the contract price after deducting the cost of such 
 completion, when the contractor has abandoned the work before 
 completion. If the assignee offered to complete, and the owner 
 refused to permit him, the assignee might then have an equita- 
 ble claim against such owner. Bemz v. Marcus Sayre Co., 7 Dick. 
 275. 
 
 If the builder abandon the work, and his sureties complete it, 
 with the owner's assent, the work done, and materials furnished, 
 by them are neither done and furnished for the owner or for the 
 builder, but to relieve themselves, as cheaply as possible from 
 their obligation as sureties ; and they are entitled to the unearned 
 portion of the contract price, including a percentage of previously 
 earned payments, retained to secure completion of the work, so 
 far as is necessary to reimburse them their necessary outlay. St. 
 Peter's Church v. Van Note. 21 Dick. 78; but the case is other- 
 wise with the builder's sureties, who, upon his insolvency, furnish
 
 Foi{-Ms. 175 
 
 him with materials, etc., and thus enable him to complete his con- 
 tract. Evans v. Lower, 1 Eob. 232. 
 
 See also § 2, note 2, Abandonment of Contract. 
 
 5. No action can be maintained for such alteration (or extra 
 work) ; unless the builder can produce such written orders or 
 prove that the owner either waived the requirement or fraudulently 
 lured him into doing the work without it. Sheyer v. Pinherton 
 Co., 59 Atl. 462. See also VanBushirl- v. Br. of Ed.. 75 Atl. 909. 
 
 The order must be procured before the work is done, there can 
 be no lien for such work done without such order although the 
 architect, after it is done, gives such order. Federal Trust Co. v. 
 Guigues, 74 Atl. 652. 
 
 6. This stipulation, if the contract is not filed, will not protect 
 the land and building from the lien of mechanics and material- 
 men, even although the latter be sureties on the builder's bond 
 given to secure the performance of the contract, Brewing Co. v. 
 Donnelly, 30 Vroom 48; s. c. 30 Vroom 439; but this is so 
 because the sub-contractor (or other claimant) is not, ipso facto, 
 chargeable with knowledge of what is contained in the builder's 
 contract ; and where it is shown that he did have notice of such 
 provision, the mere acceptance of employment by him, as such, 
 will bar him from asserting any lien therefor. Bates, etc., Co. v. 
 Trenton Co., 41 Vroom 684; Stewart, etc., Co. v. Trenton Co., 
 42 Vroom 568, 
 
 7. Where a building contract provides that the final payment 
 shall become due on the completion of the work and on the 
 builder's furnishing releases of all liens and claims that might 
 arise in the performance of the contract; the builder must show 
 that before he begun suit he tendered such releases, or else that 
 no such liens or claims then existed. Turner v. Wells, 35 Vroom 
 269; Titu^ v. Gunn, 40 Vroom 410. Such non-existence of liens 
 or claims is shown in a suit by a sub-contractor against the builder, 
 in which it is shown that the builder's contract with the owner 
 was filed with the specifications, and that the owner had settled 
 with such builder without receiving any stop notices and before 
 the sub-contractor's suit was begun. Turner v. Wells, 38 Vroom 
 572. 
 
 Such a stipulation in a building contract refers to liens, or 
 claims, arising under the Mechanic's Lien Act. Turner v. Wells, 
 supra; Titus v. Gunn., supra. 
 
 By the terms of this stipulation, the builder's right to de- 
 mand his compensation cannot mature so long as there are any 
 persons unpaid who might be entitled to give notice under the 
 third section of the Mechanics' Lien Act. According to the rule 
 pronounced in Binns v. Slingerland and followed and approved 
 in numerous cases since, the inchoate lien of such persons must, 
 therefore, continue, until all of them have been satisfied. Owners 
 who insist upon making this clause a part of their contract may, 
 therefore, thereby prevent the builder from effectively assigning
 
 176 Mecha^'ics Liex Law. 
 
 any of his compensation, as against such claimants. The stipu- 
 lation has been drawn so as to prevent, on the other hand, any 
 possible claim that such claimants might have, as against the 
 owner also, an inchoate lien vuitil they were actually paid or had 
 released, 
 
 8. When a building contract provides that any assignment by 
 the builder of the moneys due or to grow due to him thereunder 
 shall at the option of the owner be null and void ; the owner must 
 exercise such option within a reasonable time after being notified 
 of any such assignment or the right will be lost ; if the provision 
 is not, indeed, wholly nugatory as in contravention of the statute ; 
 which makes all choses in action assignable (Gen. Sts. 2591, § 
 340; 1903, p. 537, § 19). Turner v. \V\ells, 35 Vroom 269. 
 
 Such stipiilation is for the sole benefit of the owner. Other 
 parties have no interest in it, no right to demand its fulfillment 
 and are entitled to no indemnity for its violation. Burnett v. 
 Jersey City, 4 Stew. 341 ; United States Co. v. Newark, 74 Atl. 192. 
 
 9. A penalty clause is usually good for the owner's actual 
 damage only; but in Fell v. McManus, 1 Atl. 747 (Bird, V. C.), 
 it seems to have been considered that an owner would be entitled 
 to the actual penalty, without proof as to what his actual damages 
 might be, although the parties in that case agreed upon an amount 
 to be allowed. 
 
 For the rule on this subject see Monmouth Park Association v. 
 Wallis Works, 26 Vroom 132 (E. & A.) ; Van Buskirk v. Bd. of 
 Ed., 75 Atl. 909. If the owner delays the completion the time for 
 completion is thereby pro tanto extended, if the contract so pro- 
 vide. See last case above cited. 
 
 2. — Form of stop notice. H 3 and 6. 
 
 To John Carpenter, O^raer: 
 
 You are hereby notified, that Thomas Romaine (the Con- 
 tractor) is justly indebted to me, in the sum of Five Hun- 
 dred Dollars * for materials furnished, by me to him, and 
 used in the erection of * the four story brick building, erected 
 or being erected on the land owned by you, and situated 
 (describe the land as the building contract describes it if it 
 sufficiently does so; otherwise, describe it according to the 
 fact), pursuant to the written contract, made between you 
 and him, and on file in the Bergen County Clerk's Office; 
 and you are further notified, that I have demanded payment 
 from the said Thomas Romaine of the said sum of money, 
 so due and owing to me as aforesaid, and that he has refused 
 to pay the same or any part thereof ; and you are, therefore, 
 required to retain the amount, so due and claimed by me,
 
 Forms. 177 
 
 out of the amount owing by you on said contract, or that 
 may hereafter become due and owing from you on said con- 
 tract, and, on being satisfied of the correctness of my de- 
 mand, to pay the same to me. 
 
 JOXATHA^^ BAILEY. 
 Dated September 6, 1902. 
 
 *If the claim is for wages, say, in lieu of the words between 
 the asterisks, — for wages due me for work and labor, on his employ- 
 ment, in the erecting and constructing. 
 
 If the claim is for materials, as well as for wages, insert the 
 clause last given at the first asterisk. 
 
 If the work under contract, is for the alteration, reparation, or 
 removal of a building, the notice should be varied accordingly. 
 
 If the amount claimed in this notice exceeds the ti-ue amount 
 due, by even a small amount, the notice may be entirely worthless. 
 See § 3, and notes, as to this and other important matters. 
 
 If a claimant, not a sub-contractor, has a claim for materials as 
 well as for wages it may be good practice to make a separate 
 demand and notice for each. So if, for any reason, it is doubtful 
 whether all that is claimed is within the remedy of the third sec- 
 tion, it might be wise to make one demand and notice for the 
 amount, that is certainly good and a simultaneous, but separate, 
 demand and notice for the rest. 
 
 3. — Notice to builder that owner has been served with 
 a stop notice.* ^ 3. 
 
 To Thomas Romaine (Builder) : 
 
 You are hereby notified tliat 1 liave been served with a 
 notice, a copy whereof is as follows (here insert a copy of the 
 stop notice which has been served). 
 
 JOHN CARPENTEB. 
 
 Dated September 7, 1902. 
 
 '""Owners frequently neglect to give the above notice; but, by 
 reference to the statute (§§ 3 and 4), it will be seen that it may 
 very materially add to the owner's protection to give it. 
 
 Claimants might find it also to their advantage, to prepare this 
 notice and see that it is signed by the owner, and served, with his 
 approval on the builder; as they would then, in the absence of 
 notice to sue (see form 4, post), be enabled within five days there- 
 after, t-o more readily satisfy the owner that their claims were 
 correct. 
 
 12
 
 178 Mechanics Lien Law. 
 
 3a. — Form of declaration in a suit against the owner, on 
 a stop notice. | 3. 
 
 New Jersey Supreme Court of the 
 day of, etc. 
 Bergen County, ss. : John Carpenter the defendant 
 
 in this suit was summoned to answer Samuel Andreus the 
 plaintiff therein in an action upon contract and thereupon 
 the said Samuel Andreus, by his attorneys, X. Y., complains 
 for that whereas heretofore, to wit on the, etc. (date of the 
 building contract) at, etc. (venue) the said defendant was 
 then and tbere the owner of a certain parcel of land and 
 premises, viz. ; (describe the land),^ and being such owner 
 as aforesaid the said defendant then and tbere made and 
 entered into a written contract with Thomas Romaine, a copy 
 whereof is annexed to this declaration and is hereby referred 
 to and made part hereof f 
 
 And the plaintiff avers tluit afterwards, to wit, on, etc. 
 (the true date) the said contract, and a duplicate thereof, 
 together with the specifications accompanying the same, and a 
 copy and copies thereof, were filed in the office of the Clerk 
 of Bergen County, in which the building mentioned in said 
 contract is situated before anv work was done or materials 
 were furnished for the said building: 
 
 And the plaintiff further avers that afterwards, to wit, on 
 the day and year last aforesaid, at (venue) tlie said Thomas 
 Romaine became and was indebted to the plaintiff in a large 
 sum of money, to wit, the sum of one thousand dollars (the 
 exact sum stated in the plaintiff's notice)^ for materials fnr- 
 nished by the said plaintiff", at the special instance and 
 request of the said Thomas Romaine, and used in the erec- 
 tion of the said building, and in the like sum for materials 
 furnished and for work and labor by the plaintiff done, per- 
 formed, and bestowed, at the like special instance and request 
 of the said Thomas Romaine, and used in the erecting and 
 constructing of said building, and on the employment by the 
 said Thomas Romaine of the plaintiff as a sub-contractor, 
 journeyman and laborer in that behalf ; and being so indebted 
 the said Thomas Romaine in consideration thereof then and 
 there, to wit, at the time and place last aforesaid, imdertook 
 and promised to pay the sum of One Thousand Dollars to 
 the plaintiff upon demand : 
 
 xVnd the said plaintiff" fnrther avers tliat thereafter, to wit,
 
 FoBMs. 179 
 
 at the time and place last aforesaid he demanded the said sum 
 of One Thousand Dollars of the said Thomas Romaine and 
 that the said Thomas Romaine then and there rcd'used to pa\ 
 the same, or any part thereof to the plaintiff, and thereupon 
 the plaintiif, afterwards, to wit, at the time and place last 
 aforesaid, gave the said defendant notice in writing of said 
 demand and refusal and of the amount due to tlie plaintiff 
 as aforesaid and so demanded : 
 
 And the plaintiff further avers that the said Thomas 
 Romaine hath ever since the time last above mentioned, 
 refused and still doth refuse to pay the said sum of One 
 Thousand dollars or any part thereof to him, the plaintiff"; 
 that the said defendant on the said, etc. (the alleged date of 
 the demand), was the owner of the said lands, premises and 
 building, and was satisfied of the correctness of the plaintiff's 
 said demand; of all which matters and things the said 
 defendant had notice, heretofore, to wit, at the time last 
 aforesaid at (venue). 
 
 And the plaintiff' further avers that the said Thomas. 
 Romaine, after the making of the said contract firstly above 
 mentioned, did duly perform all the matters and things 
 therein and thereby required and undertaken by him to be 
 performed, according to the true tenor and effect of said 
 contract,^ and that at the time aforesaid, when he, the said 
 plaintiff, gave the said defendant notice in writing, as afore- 
 said, that there Avas due, the sum of Two Thousand Dollars,, 
 and thereafter, and before the beginning of this suit, there- 
 became due the further sum of two thousand dollars, from 
 the defendant to the said Thomas Romaine, by reason of the 
 said perfornumce, by the said Thomas Romaine of the said 
 contract first above mentioned. 
 
 By means whereof, and by foi'ce of the statute in such 
 case made and provided, the said defendant, John Carpenter, 
 became and was indebted to the said plaintiff' in the said sum 
 of Two Thousand Dollars, to wit, on the day and year, and 
 at the place aforesaid, and being so indebted he, the said 
 defendant, afterwards, to wit, on the day and year, and at the 
 place last aforesaid, in consideration thereof underto<ik, and 
 then and there faithfully promised the said plaintiff to pay 
 him the said sum of Two Thousand Dollars, when he, the said 
 defendant, John Carpenter, should he there unto afteinvards 
 requested.
 
 180 Mechanics Lien Law. 
 
 (Add the coinnion counts, as in assumpsit, and conclude 
 with common breach. Annex bill of particulars and copy of 
 •contract. ) 
 
 1. This allegation may not be necessary, but see the note:J 
 tinder § 3 of the statute, as to what the plaintiff must show, and 
 generally as to the other allegations necessary. 
 
 2. If preferred, set out the contract in the body of the decla- 
 ration, according to its legal effect ; in which case it will not be 
 necessary to annex a copy thereof, and this reference to it as so 
 annexed will be omitted. It does not seem necessary to vary the 
 declaration, accordingly as this contract is, or is not, under seal; 
 and it is believed that, if it be under seal, no profert is necessary. 
 
 3. This is important, as it may be considered a fatal variance 
 if the sum here alleged be other than the sum specified in the 
 notice served by the plaintiff upon the owner. 
 
 4. This general averment of performance of conditions prece- 
 dent is of great importance. 
 
 4.— Notice from builder to claimant, under stop notice, 
 to establish his claim by judgment. § 4. 
 
 To Jonathan Bailey (Claimant) : 
 
 You are hereby notified that I dispute your claim of Five 
 Hundred Dollars whereof you have served the following 
 notice upon John Carpenter (owner), — 
 
 (Here insert a copy of the stop notice which has been 
 served. ) 
 
 You are, therefore, requested to establish your said claim 
 
 by iudgment. 
 
 THOMAS ROMAINE (Builder). 
 
 Dated September 10, 1902.* 
 
 *This notice must be served on the claimant within five days 
 after the builder himself receives notice of the claim from the 
 owner. The failure to give this notice in time will protect the 
 owner in paying the claim, if he is otherwise satisfied of its cor- 
 rectness. 
 
 To make this notice effectual, it is also necessary for the builder 
 to prepare and serve on the owner a notice such as is shown in 
 form No. 5.
 
 FOKMS. ISi 
 
 5. — Notice from builder to owner that a notice to estab- 
 lish his claim by judgment has been served on claimant. 
 
 To John Carpenter (Owner) : 
 
 Take notice that I have this day served on Jonathan 
 Bailey, claimant, the following notice : 
 
 (Here insert a copy of the notice served on the claimant- 
 See form 4, supra.) 
 
 THOMAS ROMAINE (Builder). 
 
 Dated September 11, 1902. 
 
 6.— Owner's consent to erection of building. § 7. 
 
 Whereas it is desired by George Duane, to erect a barn ou 
 premises occupied by him, as my tenant, and situated in the 
 Borough of Rutherford, in the County of Bergen, and State 
 of New Jei-sey, and more particularly described as follows, 
 viz: 
 
 (Describe, the lands as would be necessary in any convey- 
 ance of them. ) 
 
 And whereas the said George Duane has procured Thomas 
 Romaine to agree to furnish all the labor and materials 
 necessary for the erection and construction of said barn and 
 to complete and finish the erection and construction thereof, 
 on condition tliat I give my consent, to the erection of said 
 bam on said premises, of which I am the o\\mer, so that my 
 said lands may, if necessary, be subjected to a lien for the- 
 erection and construction of said bam : 
 
 Now, therefore, this instrument witnesses that I do give 
 my consent to the erection and construction of the said barn 
 on my said land, accordingly. 
 
 In witness whereof, I have hereto set my hand and seal 
 this first day of May, in the year Nineteen Hundred and 
 Two.* 
 
 JONATHAN CARPENTER (Seal). 
 
 (If it is desired to record such a consent, add an acknowl- 
 edgment in the usual form.) 
 
 *An owner is most unlikely to give such a consent; but under 
 some circumstances he might do so, on taking from his tenant 
 sufficient security; and the foregoing form will, it is believed,, 
 answer the requirements of the statute.
 
 182 Mechanics Lien Law, 
 
 7.— Married woman's dissent,* 'i 13. 
 
 To whom it may conceru: 
 
 Take notice that. I, Mary Ann Carpenter, wife of John 
 Carpentei- of, etc., am the owner of the following described 
 lands, viz. : 
 
 (Here describe the lands as carefully as would be neces- 
 sary in a conveyance of them.) 
 
 That it has come to my knowledge that one Thomas 
 Romaine (the builder), or some other person or persons, are 
 about to erect (here si)ecify the building or buildings) on my 
 said lands ; 
 
 (Or about to repair the dwelling house and bam on my 
 said lands;) 
 
 That 1 do not consent to the erection of such buildings on 
 my said land ; 
 
 (Or that I do not consent to the repairing of such build- 
 ings on my said land;) 
 
 And that the same is being done against my wishes and 
 consent. 
 
 In witness whereof, I have sig-ned these presents, this first 
 •day of June, in the year Nineteen Hundred and Two. 
 
 MARY ANN CARPENTER. 
 
 ^*This paper when signed must be filed in the office of the clerk 
 •of the county where the lands lie. 
 
 8. — Lien claim, by contractor ag-ainst owner, for erect- 
 ing a building. ? 16. 
 
 Bereen Countv Clerk's Office. 
 
 Thomas Romaine, ^ 
 
 Builder, I 
 
 V. )■ Lien Claim. 
 
 John Carpenter, j 
 
 Owner. J 
 
 Be it known, that Thomas Romaine, of the Village of 
 Hackensack, etc., claims a lien upon the building and lands 
 hereinafter described, pursuant to the statute, in such case 
 made and provided, for a debt contracted and owing to him 
 for labor performed and materials furnished for the erec- 
 tion^ and construction of said building; and, therefore, shows. 
 
 First — The said building is a four-story brick building on
 
 Forms. 183 
 
 a lot or curtilage upon which this lien is claimed, and which 
 is situated in the village of Hackensack, in the county of 
 Bergen, and State of New Jersey, and is more particularly 
 described as follows, viz. : 
 
 (Here describe the land as carefully as would be neces- 
 sary in a conveyance). 
 
 Second — The name of the owner of the land and of the 
 estate therein on which the lien is claimed is John Carpen- 
 ter.2 
 
 Third. — The name of the person who contracted the debt 
 and for whom and at whose request the labor was performed 
 and the materials furnished for which such lien is claimed 
 is the said John Carpenter. 
 
 Fourth. — The following is a bill of particulars, exliibiting 
 the amount and kind of labor performed and of materials 
 furnished, and the price at which, and times when, the same 
 was performed and furnished, and giving credit for all the 
 payments made thereuiwn and deductions that ought to be 
 made therefrom and exhibiting the balance justly due to the 
 said Thomas Romaine, claimant, from the said John Car- 
 penter, viz. : 
 
 John Carpenter, 
 
 To Thomas Romaine, Dr. 
 To furnishing, from the first day of May, 1902, to 
 the third day of February, 1903, all the labor and 
 materials necessary to sufficiently erect and fin- 
 nish the four-story brick building above men- 
 tioned, pursuant to contract, at the agreed price 
 of $15,000 
 
 CR. 
 
 July 15, By Cash on Account $5,000 
 
 November 29, By Cash on Account 2,500 
 
 December 23, Bv Cash on Account 2,500 
 
 Total Credits 10,000 
 
 Balance Justly Due Claimant $5,000 
 
 Five thousand dollars, with interest, from xYpril 
 
 4, 1902, as per contract. 
 
 All the above labor was perfonned and materials furnished 
 between the first day of May, Nineteen Hundred and Two,
 
 184 Mechanics Lien Law, 
 
 and the third day of February, Nineteen Ilnndred and 
 threej which said last mentioned date is the date of the ]a:rt 
 work done and materials furnished for which such debt is 
 due.^ 
 
 THOMAS R0MAI:N^E. 
 
 1. If the claim is for addition, alteration or repair, vary the 
 language accordingly. 
 
 2. The nature of the owner's estate does not need to be stated, 
 and had better not be attempted. 
 
 3. This date should correspond with the bill of particulars and 
 be. stated with accuracj'. 
 
 State of New Jersey, "I 
 County of Bergen, j 
 
 Thomas Romaine, of full age, being duly sworn on his 
 oath, says that he is the claimant named in the foregoing 
 claim ; that the bill of particulars and statements therein set 
 forth, shown in said claim, are true; that the same is for la- 
 bor done and materials furnished in the erection of the build- 
 ing in such claim described, at tJie times therein specified ; 
 and that the amount as claimeil therein is justly due and 
 owing, from the said John Carpenter to said claimant. 
 
 THOMAS ROMAINE. 
 
 Sworn and subscribed this sixteentli 
 day of April, A. D. Nineteen 
 Hundred and Three. 
 
 J. A. K., etc. 
 
 ENDORSEMENT. 
 
 Bergen County Clerk's Office. 
 
 Thomas Romaine, ^ 
 
 Builder, [ 
 
 V. y Lien Claim. 
 
 John Carpenter, j 
 
 Owner. J 
 
 Summons was issued on the within claim this day 
 
 of , 1903, at the suit of Thomas Romaine, claimant
 
 Forms. 18i> 
 
 again&t John Carpenter, owner and 
 mortgagees. 
 
 J. R. R., Clerk. 
 
 9. — Lien claim, by laborer or material man, against 
 owner, as builder and owner, for erecting a building. § 16. 
 
 (The lien claim, in this instance, should style the oAvner as 
 builder and owner ; otherwise it will be in the same form as 
 is given above in Form ISTo. 8, with the exception of the 
 bill of particulars, which, as the claim is not for a contract 
 job, must specify the amount and kind of labor or materials, 
 and tlie prices at which, and times when, the same were done 
 and furnished. The following may serve as a guide) : 
 
 John Carpenter, 
 
 To Thomas Romaine, Dr. 
 
 1902. 
 
 September 2, To 200 ft. of pine flooring, at $20 per M $40 
 September 13, To 7 days' labor of three men in laying 
 floor, September 6 to September 13, at $3 per man . . 63 
 
 Total $103 
 
 Balance justly due claimant, One Himdred and Three 
 dollars, etc. 
 
 10.— Lien claim, by laborer or material man against 
 different persons, as builder and owner, for erecting a 
 building, g 16. 
 
 Bergen County Clerk's Office. 
 
 Charles Black ^ 
 
 rm Ti *• 1, -1 1 r Lien Claim. 
 
 Thomas Romaine, builder. I 
 
 John Carpenter, oAvner. J 
 
 Be it known that Charles Black of the Village, ete. (pro- 
 ceed as in Form Xo. 8, supra, naming Thomas Romaine as 
 builder, in lieu of John Carpenter, in the third clause ; and 
 Thomas Romaine as debtor, in lieu of John Cai-penter in 
 the fourth clause, m the bill of particulars, and in the affi- 
 davit. 
 
 The bill of particulars also must comply with the direc- 
 tions given in Form No. 9, su])ra.)
 
 186 Mechanics Lien Law, 
 
 11.— Lien claim, for erecting one building and for altera- 
 tion and repairs to another, on the same curtilage. ? 16 
 
 Bergen County Clerk's Office. 
 Cliarlse Black. ^ 
 
 Thomas Roinaine, builder, f 
 John Carpenter, owner. j 
 
 Be it known that Charles Black of the Village, etc., claims 
 a lien upon the buildings and lands hereinafter described, 
 pursuant to the statute in such case made and provided, for 
 a debt contracted and owing to him for labor performed and 
 materials furnished for the erection and construction, as well 
 as for the alteration and repair of, and addition to, the said 
 buildings, and, therefore, he shows, 
 
 First. — The said buildings are a two-story frame dwelling 
 house, and a frame barn and outhouse on a lot or curtilage, 
 etc. (proceed as in Form No. 8, with such changes as are 
 necessary, in regard to the builder and debtor, and the 
 bill of particulars, as is directed in Form 'No. 10. And note 
 further, that the bill of particulars should separate the claim 
 for alterations and repairs from the claim for other matter. 
 See Sec. 16, note 6. The following may serve as a guide) : 
 
 Thomas Romaine 
 
 To Charles Black, Dr. 
 
 For alterations and repairs on the barn above mentioned, 
 viz. : 
 1902. 
 May 10, To 3 days' work, shingling roof of barn, 
 
 May 8-10, 3 men, at $2.50 per day each $22.50 
 
 May 17, To 6 days' work, altering stalls in barn, 
 
 May 12-17, 3 men, at $2.50 per day each 45.00 
 
 Total for alterations and repairs $67.50 
 
 For erection and construction of the dwelling house above 
 
 mentioned : 
 
 1902. 
 
 May 31, To 12 days' work laying floors in said 
 
 house, May 19-31, 3 men, at $2.50 per day each, $90.00 
 
 June 7, To Q davs' work of 3 men hanging doors, 
 
 June 2-7, at $2.50 each 45.00 
 
 Total for erection and construction $135.00
 
 Forms. 187 
 
 Balance justly due claimant, in all, Two Hundred and 
 Two Dollars and Fifty Cents, etc.^ 
 
 (Conclude as in Form 'No. 8 and add verification.) 
 
 1. If the claim for alterations and repairs does not constitute 
 one entire debt with that for erection and construction, the state- 
 ment of the date of the last work done should be double. It is 
 possible that, in such case, there may be two lien claims filed, one 
 for the alterations, the other for erection. 
 
 12. — Lien claim for erection of several houses with ap- 
 portionment. I 22. 
 
 Bergen County Clerk's Office. - 
 
 Samuel Andreus ^ 
 
 Thomas Romain, Builder, h len 
 John Carpenter, Owner. j 
 
 Be it knomi that Samuel Andreus, of the Village, etc., 
 claims a lien ujjon the buildings and lands hereinafter de- 
 scribed, pursuant to the statute in such case made and pro- 
 \'ided, for a debt contracted and owing to him for labor per- 
 formed and materials furnished for the erection and con- 
 strnction of said buildings, and therefore, shows, 
 
 First. — The said buildings are five frame dwelling houses 
 on a lot or curtilage situated, (here describe the whole cur- 
 tilage, and then proceed) and each of the said buildings and 
 the lot or curtilage whereon it is erected and upon which 
 this lien is claimed may he described, as follows, viz. : 
 
 The first building is a frame dwelling house on a lot or 
 curtilage situated, etc. (here described the particular curtil- 
 age of that particular house). 
 
 The second building is (proceed as before, and so on until 
 each building and its curtilage is described). 
 
 Second. — The name of the owner of all the aforesaid lands 
 and of the estate therein on which the lien is claimed is John 
 Carpenter. 
 
 Third. — The name of the person who contracted the debt 
 and at whose request the labor was performed and the ma- 
 terials furnished for which such lien is claimed is the said 
 Thomas Romaine. 
 
 Fourth. — The following is a bill of particulars, exhibiting
 
 188 Mechanics Lien Law. 
 
 the amount and kind of labor performed and of materials 
 furnished, and the price at which, and times when, the same 
 was performed and furnished, and giving credit for all the 
 payments made thereon and deductions that ought to be made 
 therefrom, and exhibiting the balance justly due to the said 
 Samuel Andreus, claimant, from the said John Carpenter, 
 viz. : 
 
 (Set out bill of particulars, as in other cases, for all the 
 labor and materials in one account, and showing the bal- 
 ance justly due, and then proceed.) 
 
 And the said Samuel Andreus, claimant, doth hereby di- 
 vide and apportion the same among the said buildings in 
 proportion to the value of the materials furnished to, and 
 the labor performed for each of said buildings and doth 
 state the amount so apportioned to each such building, as 
 follows, viz. ; 
 
 To the first building, and its lot or curtilage above described, 
 the sum of dollars (and so in each other case).^ 
 
 All the above labor was performed and materials fur- 
 nished, etc. (concluding, and adding verification, as in Form 
 'No. 8). 
 
 1. It is not believed that the statute requires that the claimant 
 shall set out in his lien claim a detailed statement of the appor- 
 tionment item by item; or that even in his proof, in an action 
 to enforce his claim, he will be bound to show the precise amount 
 of material or labor that, from day to day, was bestowed upon each 
 building. There is no harm, however, in making as specific a 
 statement as may ht^. possible, in the lien claim. 
 
 13.— Agreement to extend time of suit. ? 18. 
 
 In the matter of the lien claim filed in the Bergen County 
 Clerk's Office by Thomas Romaine, claimant against John 
 Carpenter, builder and owner, for a debt of Five Thousand 
 Dollars, it is hereby agTeed that the time, in which such lien 
 may be enforced by summons, be extended for the further 
 period of four months after the expiration of tlie time 
 limited by the statute therefor. 
 Dated, etc. 
 
 JOHN CARPENTER, Owner. 
 
 THOMAS ROMAINE, Claimant.
 
 Forms. 189 
 
 14. — Notice to sue on lien claim.* | 18. 
 
 Bergeu Coimtv Clerk's Office. 
 
 Thomas Romaine, Claimant, \ 
 
 John Carpenter, Builder and j ^'^^"^ ^■^^^^• 
 Owner. J 
 
 To Thomas Romaine, Claimant : 
 
 You are hereby required to commence suit to enforce the 
 lien claim filed by you in the Bergen County Clerk's office, 
 for an alleged debt of Five Thousand Dollars, and entitled 
 as above, within thirty days from the service of this notice 
 upon you. 
 
 JOITN" CARPEXTER, Owner. 
 
 Dated, etc. 
 
 ^'Stee Form No. 30, for affidavit of service of this notice, to be 
 filed in order to discharge lien on failure of claimant to sue. 
 
 15.— Form of summonB. ? 23. 
 
 County of Bergeu, ss. : 
 
 The State of New Jersey to the 
 (Seal.) Sheriff of Our County of Bergen, 
 
 Greeting : 
 
 Summon Thomas Romaine, 
 builder, and John Carpenter, o^^Tier, and George L. Mott, 
 mortgagee, to appear before the Circuit Court in and for the 
 County of Bergen, at Hackensack, in the said County, on 
 
 the day of that the said Thomas Romaine, 
 
 John Carpenter and George L. Mjott, may each answer unto 
 Samuel Andreus, claimant, in an action upon contract, to 
 
 the damage of the said Samuel Andreus, the sum of 
 
 dollars, as is said, for which the said Samuel Andreus claims 
 a building lien on certain buildings and lands of the said 
 John Carpenter, upon which the said George L. Mott holds 
 a mortgage of record, and which are described as follows 
 (describe the building and lands as in the lien claim on file). 
 Witness Jonathan Dixon, Judge of said Circuit Court at 
 Hackensack, in said Countv, this dav of, etc. 
 
 J. R. R., Clerk. 
 X., Y., Attorney.
 
 190 Mechanics Lien Law. 
 
 16.— Service of summons. Forms of returns. i ^ 23. 
 
 Personal service. Duly served the witliin summons on the 
 defendant, A. B., this third day of June, 1902. 
 
 C. E. S., Sheriff. 
 
 The above return seems to be all that is necessary, where the de- 
 fendant is a resident of this state, whether he is served personally 
 or by leaving a copy at his residence; since either of those modes 
 of service are due service of process on such a defendant, in 
 order to warrant a general judgment against him, in personam, 
 or a special judgment against his lands in this state; and in 
 neither case is any affidavit of such service necessary. 
 
 A valid judgment in personam against a defendant builder, 
 not resident or found within this state, is, of course, impossible, 
 since the decision in Pennoyer v. Neff, 95 U. S. 714; but a 
 special judgment against the lands of such a defendant owner 
 will be warranted by a compliance with the statut^jry requirements, 
 as to the sei-vice of process in such a case. See Smith v Collotv 
 40 Vroom 365. 
 
 What the proper practice, in such case, is, is by no means so free 
 from doubt as could be wished. There are several cases to con- 
 sider, viz : 
 
 (a) Where such defendant's residence is known and the copy 
 of the cummons is 
 
 (1) served upon him out of the state in person; or 
 
 (2) left at his residence out of the state; or 
 
 (3) mailed to his nearest post office address. 
 
 In cases (a), (1) and (2), the statute is plain, that the copy 
 must be affixed to the building, and the copy served or left, 
 all at least ten days before the return day of the summons. 
 
 In case (a) (3), it is far from certain, but it is sufficient, per- 
 haps, if the copy is affixed to the building, and the copy mailed to 
 the defendant, at least ten days before the return day; but 
 
 (b.) Where such defendant's residence out of the state is un- 
 known, and the copy of the summons must be affixed to the 
 building and also published for four weeks, once in each week, 
 the statute leaves us at a loss to say when these things should 
 be done, with reference to the return day of the summons. Per- 
 haps the safe course is, in such case to publish for five weeks; 
 to have the fourth publication at least ten days before the return 
 day; and to have the copy affixed to the building at least four 
 weeks before the return day. 
 
 The statute indicates that it is not necessary that the acts, 
 which constitute service upon a non-resident defendant, should be 
 performed by the sheriff, or other like officer; but it is appre- 
 hended that if they are performed by such officer, or so far as 
 they are performed by him, in any case, he should make special 
 return accordingly, by affidavit. An attempt, to indicate the 
 points that should be covered, is made in the following forms of 
 affidavits and the appended remarks.
 
 Forms. 191 
 
 actual, service. non-residenl% whose residence is 
 
 KNOWN. 
 
 State of New Jersey, 
 
 ss. 
 
 } 
 
 County of Bergen, 
 
 C. R. S., Sheriff- 
 of the County of Bergen, being duly sworn on his oath 
 says, that the within mentioned defendant, C. D., is not a 
 resident of this State, and resides at, etc., in the City of 
 Albany, in the State of 'New York, as deponent is informed 
 and believes ;^ that the said defendant cannot be found in this 
 State, and that deponent therefore served the within summons 
 on him, by affixing a copy thereof on the building, within 
 mentioned, on the second day of June, Nineteen Hundred 
 and Two, being ten days before the return of said summons, 
 and also on the same day serving a copy thereof on such de- 
 fendant personally (or, by leaving a copy thereof at the said 
 residence of the said defendant). 
 
 Jurat. C. R. S., Sheriff. 
 
 *This affidavit may be made by a person other than the sheriff. 
 
 1. It is advisable for this affidavit to state specifically where the 
 residence is; that it is known to be defendant's residence; and 
 what the sources of such knowledge are. Where such sources are 
 the statements of others their affidavits also should be annexed. 
 
 LEGAL SERVICE. NON-RESIDENT DEFENDANT^ WHOSE RESI- 
 DENCE IS KNOWN. 
 
 State of New Jersey, 1 
 County of Bergen, J ^" 
 
 C. R. S., Sheriff* 
 of the County of Bergen, being duly sworn, on his oath, says, 
 that the within mentioned defendant, C. D., is not a resi- 
 dent of this State, but resides at, etc., in the City of Albany, 
 in the State of New York, as deponent is informed and be- 
 lieves ;^ that the said defendant cannot be foitnd in this 
 State, and that deponent therefore served the within sum- 
 mons on him, by affixing a copy thereof upon the building, 
 within mentioned, on the second day of June, Nineteen Hun- 
 dred and Two, being more than four weeks before the return 
 day of said summons, and also on the same day sending a 
 copy thereof, by mail, to the said defendant, directed to him
 
 192 Mechanics Lien Law. 
 
 at the post office address neiirest his said residence, and with 
 the postage prepaid thereon. 
 
 Jurat C. K. S., Sheriff. 
 
 *This affidavit may be made by a person other than the sheriff. 
 1. See note 1 to the preceding form. 
 
 LEGAL SEKVICE. NOlSr-RESIDENT DEFENDANT^ RESIDENCE 
 
 UNKNOWN. 
 
 State of New Jersey, 1 
 
 County of Bergen, j " " ' 
 
 C. R. S., Sheriff* 
 of the County of Bergen, being duly sworn, on his oath, says, 
 that the within mentioned defendant, C. D., is not a resident 
 of this State, as deponent is informed, and believes ;^ that his 
 residence and post office address is imknown, that the said 
 defendant cannot be found, in this State, and that deponent 
 therefore served the within summons on him, by affixing a 
 cojw thereof to the building within mentioned, on the second 
 day, etc., being more than four weeks before the return day 
 of said summons, and also by inserting a copy thereof for 
 four weeks, once in each week, in , a newspaper of this 
 
 State, published and circulating in the County of Bergen, 
 where the said building is situated. 
 
 Jurat. C. R S., Sheriff". 
 
 *This affidavit may be made by a person other than the sheriff. 
 
 1. Annex any other affidavits that will show the fact of such 
 non-residence. 
 
 It is advisable, if not necessary, that an affidavit should also 
 be attached, in this case, to show that due but fruitless inquiry has 
 been made for the residence of such owner. 
 
 This affidavit must, also, be accompanied by the follow- 
 ing affidavit : 
 
 State of i!^ew Jersey, \ 
 County of Bergen, ) ®*' * 
 
 A. B., of full age, being duly 
 sworn, on his oath, says ; that he is the editor (or, as tlie case 
 may be) of the , a newspaper printed and circulated 
 
 at , in the County of Bergen, and that the copy of a
 
 FoKMs. 193 
 
 summons hereto annexed was inserted and published in the 
 said newspaper, for four weeks successively, once in each 
 week, commencing on the 6th day of June a. d. Nineteen 
 Hundred and Two, namely on the Gth, 13th, 20th and 27th 
 days of said month of June. 
 
 Jurat. A. B. 
 
 17.— Form of declaration, on common counts.^ § 24. 
 
 Bergen County Circuit Court, 
 of the dav of 
 
 in the vear 
 Bergen County, ss.: 
 
 Thomas Romaiue, builder, John Carpenter, owner, and 
 George L. Mott, mortgagee, the defendants, in this suit, were 
 summoned to answer unto Samuel Andreus, the plaintiif 
 herein, in an action uix>n contract, the summons having l>een 
 duly served, by the sheriff of the County of Bergen, on the 
 said Thomas Romaine, John Carpenter and George L. Mott; 
 the said George L. Mott being made a party defendant, be- 
 cause he holds a mortgage of record against the property 
 affected by the claim, to enforce which, this suit is brought, 
 which would be cut oft" by a sale, under such claim ; where- 
 upon the said Samuel Andreus, by X. Y., his attorney, com- 
 plains that for whereas the said defendant, Thomas Ro- 
 maine, heretofore, to wit, on the, etc. (make the date a day or 
 two before the lien claim was filed), at, etc. (venue), was in- 
 debted to the plaintiff in the sum of (double the debt) dollars 
 for the work and labor, care and diligence of the said plain- 
 tiff, by the said plaintiff before that time done, performed 
 and bestowed for the said defendant, and at his special 
 instance and request, and also for divers materials and 
 otlier necessary things by the said plaintiff before 
 that time found, provided, used and applied in and 
 about that work and labor for the said defendant, and at his 
 special instance and request ; and in the furtlier sum of 
 (same as before) dollars, for goods, wares and merchandise, 
 sold and delivered by said plaintiff to the said defendant, 
 Thomas Romaine, at his special instance and request ; and 
 in the like sum of money for money lent by the plaintiff to 
 the said defendant, Thomas Romaine, at his special in- 
 stance and request ; and in the like sum of money for interest 
 
 18
 
 194 Mechanics Lien Law. 
 
 due from the said defendant, Thomas Ptomaine, to the plain- 
 titf, for moneys before then lent by the plaintiff to the said 
 defendant at his special instance and request, and at the 
 like instance, and request foreborne by the plaintilf for a 
 long time then elapsed ; and in the like sum of money, for 
 money found to be due from the said defendant, Thomas 
 Romaine, to the plaintiff, on an account then and there stated 
 between them ; and, being so indebted, he, the said defendant, 
 Thomas Romaine, in consideration thereof, afterwards, to 
 wit, on the day and year last aforesaid at (venue) under- 
 took and promised to pay the said several sums of money to 
 the plaintiff, on request, yet the said defendant, Thomas 
 Romaine, has disregarded his promise and has not paid any 
 of the said moneys or any part thereof, to the plaintiff's 
 damage dollars. And therefore he bring-s his suit, etc. 
 
 And the said plaintiff avers, and in fact says, that the said 
 debt is, by virtue of the provisions of an act of the Legisla- 
 ture, entitlded, "An act to secure to mechanics and others 
 payment for their labor and materials in erecting any build- 
 ing," approved June 14, 1898, and the supplements thereto, 
 a lien on a certain building and curtilage described as fol- 
 lows (describe building and curtilage as in lien claim) : 
 
 And the plaintiff further avers that the said defendant. 
 George L. Mott, holds a mortgage (describe the mortgage by 
 the parties thereto, its date of record, and the amount secured 
 by it, and also, if such be the case, state its assig-nment to the 
 defendant; and thou proceed) which said mortgage pur- 
 ports to be an encumbrance upon the lands and buildings 
 above mentioned and by virtue of which the said George L. 
 Mott, claims to hold a lien thereon, but the plaintiff avers 
 that the lien of the debt so due to the plaintiff, as aforesaid, is 
 paramount to the lien of said mortgage, upon the said land 
 
 and building. 
 
 X. Y., 
 
 Attomev of the Plaintiff. 
 
 1. If the indebtedness is based upon an express contract, not 
 under seal, a special count may be inserted, if desired, before the 
 common counts. 
 
 If the express contract be under seal, the declaration must b< 
 framed as in debt and not in assumpsit, of course. It it not wise 
 to omit a special count upon an express contract; and it is import- 
 ant, in such a count, when it is used, to aver generally the per-
 
 Forms. 195 
 
 formance of all conditions precedent. See Dimich v. Metropolitan 
 Ins. Co., 38 Vroom 367; Stewart Co. v. Trenton Co., 42 Vroom 
 568. 
 
 In a proper case, there should also be a quantum meruit count. 
 
 The fullowing is a bill of particulars of the wurk and la- 
 bor performed and materials furnished for the said defend- 
 ant, Thomas Komaine, by the said plaintiff, and for -which 
 tliis action is brought (here set out tlie bill of particulars as 
 stated in the lien claim). 
 
 18.— Declaration by contractor, on a sealed conti'act.i 
 I 24. 
 
 Bergen County Circuit Court of 
 the day of in the year 
 
 Nineteen Hundred and three. 
 Bergen County, ss.: 
 
 John Carpenter, builder and owner, and George L. Mott, 
 mortgagee, the defendants in this suit were sunnnoned to an- 
 swer unto Thomas Romaine, the plaintiff herein, in an ac- 
 tion upon contract, the summons having been duly served 
 by the sheriff of the county of Bergen upon each of the said 
 defendants, and the said George L. Mott being made a party 
 defendant because he holds a mortgage of record against the 
 property affected by the claim to enforce which this suit, is 
 brought, which would be cut off' by a sale under said claim ; 
 and thereupon the plaintiff, by his attorneys, X. Y., com- 
 plains of the said John Carpenter tliat he vender to the 
 plaintiff the sum of Ten Thousand Dollars (double the 
 amount of the real debt, see note 2, below) which he owes 
 and unjustly detains from him : for that whereas heretofore, 
 to wit, on, etc. (date of contract) at, etc. (venue), by a cer- 
 tain indenture then and there made between the said plain- 
 tiff, of the one p:irt, and the said defendant, John Carpenter, 
 of the other part, which said indenture, sealed with the seal 
 of the said defendant, the said plaintiff uoav brings here into 
 court, and a co])y whereof is hereto annexed and referred to 
 and made part of this declaration, the said defendant, J. C, 
 did, for himself, his heirs, executors and administrators, cove- 
 nant, promise and agree to and with the said plaintiff, his ex- 
 ecutors, administrators, and assigns, that if he, the said plain- 
 tiff, would well and sufRcientlv erect and finish a certain
 
 196 Mechanics Lien Law, 
 
 building in said indenture mentioned, then lie the said defend- 
 ant, J. C, his heirs, executors, and administrators, or some or 
 one of them, should and would well and truly pay or cause to 
 be paid unto the plaintiff the sum of Fifteen Thousand Dol- 
 lars in the manner and at the times, mentioned and ap- 
 pointed for the payment thereof in and by the said indenture; 
 and although the plaintiff thereafter, viz. : on the, etc, (date of 
 completion of building) at, etc. (venue) did well and suffi- 
 ciently erect and finish the said building and did fully per- 
 form all the matters and things by him to be performed ao 
 cordiug to the tenor and effect of the said indenture ; never- 
 theless the said defendant, J. C, did not nor would well and 
 truly pay or cause to be paid unto the said plaintiff the said 
 sum of Fifteen Thousand Dollars in the manner and at the 
 time mentioned and appointed for the payment thereof, as 
 aforesaid, but therein failed and made default, and there is 
 now due and owing from the said defendant, J. C, to the said 
 plaintiff for and on account of the said sum of Fifteen Thou- 
 sand Dollars, a large sum of money, to wit, the sum of Five 
 Thousand Dollars (the true debt without interest) 
 which said sum of Five Thousand Dollars the said 
 defendant, J. C, on the, etc., (make the date just previous 
 to the date when the lien claim was filed) at, etc. (venue) 
 agreed tx3 pay unto the plaintiff when thereunto afterwards 
 requested ; whereby an action had accrued to the said plain- 
 tiff to demand and have of and from the said defendant, J. 
 C, the said sum of Five Thousand Dollars, parcel of the said 
 sum of money alx)ve demanded (that is, first above de- 
 manded). 
 
 And whereas also the said defendant, J. C, afterwards, to 
 wit, on the date last above mentioned at, etc. (venue), was in- 
 debted to the said plaintiff in the sum of Five Thousand 
 Dollars for the work and labor, care and diligence of the 
 plaintiff' before that time done, performed and bestowed for 
 the said defendant, J. C, and at his special instance and re- 
 quest, and also for divers materials and other necessary things, 
 by the plaintiff before that time found and provided in and 
 about that work and labor for the defendant, J. C, and at his 
 like special interest and request, and to be paid by the said 
 defendant to the said plaintiff when he, the said defendant 
 should Ik* thereunto afterwards requested : 
 
 And in the like smn of money for goods, wares, and mer-
 
 Forms. 197 
 
 cliandise sold and delivered to the said defendant, T. C, and 
 at his special instance and reqnest, by the said plaintiff, and 
 to be paid by the said defendant to the said plaintiff when he 
 the said defendant should ]ye there afterwards requested. 
 
 And in the like sum of money for money lent by the plain- 
 tiff to the said defendant, J. C, at his special instance and 
 request, and to be paid by the said defendant to the said 
 plaintiff when he, the said defendant, should be thereunto 
 afterwards requested : 
 
 And in the like sum of money for money paid, laid out, 
 and expended by the plaintiff for the said defendant, J. C, 
 and at his special instance and request to be paid by the said 
 defendant to the said plaintiff when he, the said defendant 
 should be thereunto afterwards requested : 
 
 And in the like sum of money for money had and received 
 by the defendant, J. C, to tlie use of the plaintiff, and to be 
 paid by the said defendant to the said plaintiff when he, the 
 said defendant should be thereunto afterwards requested. 
 
 And in the like sum of money for interest due from the 
 said defendant, J. C, to the plaintiff for moneys before then 
 lent by the plaintiff to the defendant, J. C, at his special in- 
 stance and request, foreborne by the plaintiff for a long time 
 then elapsed, and to be paid by the said defendant to the said 
 plaintiff when he, the said defendant should be thereunto af- 
 terwards requested : 
 
 And in the like sum of money, for money found to be due 
 from the said defendant, J. C, to the said plaintiff, on an ac- 
 count then and there stated between them, and to be paid by 
 the said defendant to the said plaintiff when he, the said de- 
 fendant, should be thereunto aftel'^^'ards requested : 
 
 Wherebv and by reason of the said last mentioned sum? 
 of money being and remaining wholly unpaid, an action hath 
 accrued to the said plaintiff to demand and have of and froni 
 the said defendant, J. C, the sum of Ten Thousand Dollars 
 first above demanded. 
 
 Yet the said defendant, J. C, although often requested so 
 to do, has not as yet paid the said sum of Ten Thousand Dol- 
 lars, above demanded or any part thereof, to the said plain- 
 tiff, but to do this hath hitherto refused and still doth refuse 
 to the damage of the plaintiff of One Thousand Dollars,^ and 
 therefore he brings his suit.
 
 198 Mechanics Lien Law. 
 
 (Add averment that debt is a lieu and averment as to 
 mortgagee as in Form 17, supra ; and annex bill of particu- 
 lars and copy of contract.) 
 
 1. This form has been drawn to conform to the contract set 
 out in form No. 1; and the lien claim as given in form No. 8. 
 
 In a case, such as the one so supposed, the declaration must be 
 in debt because the contract is sealed. The special count could, 
 however, be dispensed with; as the declaration would be good if 
 only the common counts were used; and not all of them need to 
 be used. It is not wise, however, to omit a special count. See 
 note to form No. 17. 
 
 2. This amount should be the aggregate of all the sums men- 
 tioned in the different counts; but an arbitrary amount may be 
 taken instead; and, as the siunmons will lay damages at double 
 the real debt demanded, that sum may be taken. 
 
 3. This amount may be any sum less than the aggregate 
 demanded. It should be enough to cover the interest to which 
 the plaintiff may be entitled. 
 
 10.— Pleas by owner. I 24. 
 
 Bergen County Circuit Court. 
 
 Samuel Andrens "| 
 
 V. VOn Contract. 
 
 Thomas Romaine et al. ) 
 
 And the said defendant, John Carpenter, by X. Y., his at- 
 torneys, comes and defends the wrong and injury when, etc., 
 and says that the said Thomas Romaine, builder, did not 
 undertake nor promise, in manner and form, as the said 
 plaintiff hath above thereof complained against him, and 
 of this he puts himself upon the country : 
 
 And for a further plea in this behalf, by leave of the 
 court here for that purpose first had and obtained, according 
 to the form of the statute in such case made and provided, 
 the said defendant says that the said plaintiff ought not fur- 
 ther to have or maintain his aforesaid action thereof against 
 him and against said building and lands in the declaration 
 above mentioned and describ^ ; because he says that said 
 building and lands are not liable to the said supposed debt 
 in manner and form as the plaintiff hath above thereof com-
 
 FOKMS. 109 
 
 plained against liim. and of this he puts himself upon the 
 country : 
 
 (Add any other plea which the builder might have.) 
 
 (Signature of Attorney.) 
 
 VERIFICATIOX^ *Pr. Act. § 114. 
 
 State of I^ew Jersey, \ 
 
 County of Bergen, j ^ •• 
 
 John Carpenter, of full 
 age, being duly sworn on his oath according to law^ says that 
 he is the above named defendant and that the foregoing plea 
 is not intended for the purpose of delay and that affiant 
 verily believes that he, the said defendant, hath a just and 
 legal defense to said action on the merits of the case. 
 
 "(Jurat.) (Signature.) 
 
 *In the absence of the defendant, this affidavit may be made by 
 the defendant's attorney or agent, Pr. Act, § 114; and can be 
 readily varied in such case, accordingly. 
 
 20.— Pleas by mortgage ® I 24. 
 
 (The mortgagee may have tlie same pleas that the owner 
 may have, and the following plea in addition.) 
 
 And for a further plea in this behalf, here by like leave 
 of the court for that purpose had and obtained, etc., the said 
 defendant, Georg-e L. ^^fott, says tliat the plaintiff (actio 
 non, as before), because he says, that the pretended lien 
 claim of the said plaintiff, whereof mention is above in his 
 declaration made, is not paramount, but is subject to the 
 lien of the said defendant's mortgage, above in said declara- 
 tion mentioned; and of this he puts himself upon the j;on-, 
 trary. 
 ' "~ (Signature of Attornev.) 
 
 (Add verification.) 
 
 21.— Rule for judgment by default. \ 24. 
 
 (Title of cause.) 
 
 The summons in the above stated cause liaving been duly 
 served on the defendant, Thomas Romaine, builder ••' and 
 on tlie other defendants, J. C. etc., in the manner and forai 
 required by law% and the plaintiff' having filed his declaration
 
 200 Mechanics Lien Law. 
 
 within the time limited by law for filiug the same, and none 
 of the said defendants having filed any plea or demurrer, or 
 entered any rule for a writ of inquiry or for assessment of 
 damages in open court within the time required by law there- 
 for, nor at any other time, it is, therefore, on this day of 
 , in the year , ordered that judgment interlocu- 
 tory by default be entered in favor of said plaintiff and 
 against said defendants (naming all of them). And the 
 clerk of this court having this day duly assessed the damages 
 of the said plaintiff at the sum of dollars. 
 
 It is, tlierefore, on the day and year aforesaid, further 
 ordered that judgment final for the said sum of dol- 
 
 lars damages, with costs to be taxed, be entered in favor of 
 the plaintiff generally * against the said defendant, Thomas 
 Romaine, builder (or, builder and owner, if that be the 
 fact), and sj^ecially to be made of the lands and buildings 
 in said declaration described. 
 
 (If there be a mortgagee defendant, add — ) 
 
 And it is further adjudged that the lien claim of the said 
 plaintiff is prior to tlie lien of the said mort|!:age of the said 
 defendant, George L, Mott (or, vice versa, as the case mav 
 be). 
 
 Rule entered, etc. 
 
 *If the summons is not served upon the builder by "actual ser- 
 vice" within the jurisdiction, and he has not appeared generally 
 and submitted to the jurisdiction, there can be no general judg- 
 ment against the builder and the rule, in that case, must be 
 varied accordingly. 
 
 22.— Rule for judgment on verdict.* § 24. 
 
 Berg^en County Circuit Court. 
 
 (Title of Cause.) 
 
 The issues joined in this cause having, at the current 
 tenn of this court, been regularly tried by a jury who, aftor 
 retiring to consider of their verdict, come again into court 
 and say that as to the issue joined, on the first plea by each 
 of the said defendants pleaded, they find that the said 
 Thomas Romaine did promise in manner and form as the 
 plaintiff hath within in his said declaration complained 
 against him and tbey assess the damages of the said Samuel 
 Andreus on occasion of the non performance of said promise,
 
 Forms. 201 
 
 over and above his costs and charges, etc., to dollars ; 
 
 and as to the issue joined on the second plea, by each of the 
 said defendants above pleaded, they find that the said build- 
 ing and lands in the plaintiff's declaration mentioned and 
 described are liable in manner and fonii as the plaintiff hath 
 therein complained ; and, as to the issue joined on the third 
 plea, by the defendant, George L. Mott above pleaded, they 
 fijid that the lien claim of the said plaintiff in the plaintiff's 
 declaration mentioned is paramount to the said mort- 
 gage of the said defendant, as the plaintiff hath therein 
 complained : 
 
 And it appearing that the summons in this cause was not 
 duly served upon the defendant, Thomas Komaine, but was 
 duly served upon all the other defendants therein named : 
 
 It is, therefore, ordered that judgment final in favor of 
 the said plaintiff, for the said sum of dollars, besides 
 
 his costs of suit, to be taxed, b© entered, but only to be made 
 specially of the lands and building in the said declaration 
 described: Unless, etc. 
 
 Rule entered, etc. 
 
 *This rule is drawn for the case, where the builder is not 
 actually served with the summons within the jurisdiction, and 
 files no plea, and does not otherwise appear; and the owner pleads, 
 non assimipsit; and lands not liable; and the mortgagee pleads, 
 separately, non assumpsit; lands not liable; and mortgage para- 
 mount. 
 
 23. — Judgment on verdict, i 24. 
 
 (The judgment record after setting out the pleadings, and 
 thus stating the issues, and after reciting the award of the 
 venire, etc., should proceed — ) 
 
 And the jurors of the jury whereof mention is made come 
 also, who to speak the truth of the matter within contained 
 being chosen, tried, and sworn upon their oaths say (here 
 state the verdict as particularly as may be needful ; see Sec. 
 24, Note 6, and the last preceding form, Xo. 22, and after 
 so stating the verdict, according to its legal effect, proceed — ) 
 
 And it having been made to appear that the summons was 
 duly served on all of the said defendants.^ 
 
 Therefore it is considered that the said plaintiff do recover 
 generally against the said defendant, Thomas Romaine, 
 builder, and specially to be made of the lands and building
 
 202 Mechanics Lien Law. 
 
 in the said declaration mentioned and described,^ the sum 
 of dollars, etc., for bis damages (if the pleading be 
 
 in debt, then vary the record accordingly) by the jnrors 
 aforesaid assessed, and also the sum of dollars, etc., for 
 
 his said costs and charges by the court now here adjudged 
 of increase to the said plaintiff and with liis assent, which 
 said damages, costs and charges, in the whole, amount to tlie 
 sum of dollars, etc. And the said defendant, Thomas 
 
 Romaine, in mercy. 
 
 And it is further considered and adiudiicd that the lieu of 
 the plaintiff upon the said lands and buildings, in the declar- 
 ation mentioned and described, for the sum of dol- 
 lars, ete., last above mentioned so as aforesaid adjudged to 
 him, is prior and paramount to the lien of the said mort- 
 gage of the said defendant, George L. ^Mott. in the said declar- 
 ation mentioned. 
 
 1. This recital is deemed to be important. See Ennis v. Eden, 
 etc. Co., 36 Vroom 677, 585. 
 
 2. If only a special judgment is awarded because of want of 
 due service on the builder; or if the plaintiff chooses, as he may 
 (see § 24, note 6), to take only a special judgment, this clause 
 will read — Therefore it is considered that the said plaintiff do 
 recover, but only to be made specially of the lands, etc., the sum 
 of, etc. If the plaintiff, being entitled to enter judgment both 
 generally and specially, means to enter the one and waive the 
 other, such waiver may properly be recited in the record before 
 the ideo consideratum est clause. 
 
 24. Form of execution (general and special). ? 27. 
 
 Bergen County, ss. 
 
 The State of Xew Jersey to the 
 (Seal.) Sheriff of the county of Ber- 
 
 gen, greetino-: 
 We command you that, of the goods and chattels of Thomas 
 Romaine, builder, in your county, you cause to be made the 
 sum of dollars and cents (the total of the judg- 
 
 ment for debt and costs) which Samuel Andreus, lately in 
 our Circuit Cburt, held at Hackensack, in and for said 
 county of Bergen, recovered against the said Thomas Ro- 
 maine, builder, as well for his damages which he had sus- 
 tained on occasion of the non-performance of certain prom- 
 ises and undertakings by the said Thomas Romaine, builder.
 
 Forms. 203 
 
 then lately made to the said Samuel Andreus, as for liis 
 costs and charges by him about his suit in tha,t behalf ex- 
 pended, whereof the said Thomas Romaine, builder, is con- 
 victed as appears to us of record, and if sufficient goods and 
 chattels of the said Thomas Romaine, builder, in your 
 county, you cannot find whereof to make the damages afore- 
 said, then in that case we command you that you cause the 
 whole or the residue, as the case may require, of the damages 
 aforeseaid, to be made of the lands, tenements, heredita- 
 ments and real estate of the said Thomas Romaine in your 
 county, whereof he was seized on the day of 
 
 in the year (the date of the judgment) in whoseso- 
 
 ever hands the same may be; and we especially command 
 you, that in case you do not make the damages aforesaid, 
 othenvise, that you make the whole or residue, as the case 
 may require, of the damages aforesaid, of the following do- 
 scribed lands, tenements and real estate of the said John 
 Carpenter, owner, viz. : (describe the building and lauds as 
 in lien claim). 
 
 And have you those moneys before our Circuit Court 
 aforesaid, at Hackensack, aforesaid, the day of 
 
 next,^ to render unto the said Samuel Andreus for his dam- 
 ages aforesaid ; and have you then and there this writ. 
 
 Witness, Jonathan Dixon, Esq., Judge of our said Cir- 
 cuit Court, at Hackensack, aforesaid, the day of 
 , in the vear of our Lord, etc. 
 
 J. R. R., Clerk. 
 
 X. Y., Attorney. 
 
 1. See § 29 ante, note 2. 
 
 25.— Caveat against lien claim by owner or claimants. i 
 I 29. 
 
 Bergen County Clerk's office. 
 
 Samuel Andreus, Claimant, ^ 
 
 rp, -D • -D 'ij y Lien Claim. 
 
 Thomas Romame, Guilder, C 
 
 John Carpenter, 0^vner. ) 
 
 T, John Carpenter, owner (or we, A. B., C. D., etc., claim- 
 ants owning together one-third of the lien claims, filed 
 against the building in the above entitled lien claim men-
 
 204 MECHAisrics Lien Law. 
 
 tioned) do hereby warn and notify all persons who may be 
 concerned that we object to the said claim of the said 
 Samuel Andreus in said lien claim set forth, and to any pay- 
 ment thereof, in whole or in part, until his said claim shall 
 have been established by a special judgment thereon. 
 
 (Signatures of Caveaters.) 
 
 1. There should be a separate caveat, filed in the county clerk's 
 office, against each lien claim which it is desired to object to. 
 
 26. — Petition for distribution of proceeds of sale among 
 concurrent claimants. ? 29. 
 
 Bergen County Circuit Court. 
 Samuel Andreus, Claimant,^ ^ 
 
 V 
 
 Thomas Romaine, Builder, } ?'' ^^^^J^Tact on 
 John Carpenter, Owner, I ^^^^^ ^^^^™- 
 
 George L. Mott, Mortgagee. J 
 
 To His Honor, Jonathan Dixon, Judge of said Circuit 
 
 Court : 
 
 Your petitioner, William Stiles, respectfully shows that, 
 heretofore, to wit, on the day of, etc., the said Samuel 
 
 Andreus recovered judgment, in the above entitled cause, on 
 a lien claim filed by him in the Bergen County Clerk's office 
 on the day of, etc., for the sum of dollars, etc., 
 
 specially to be made of the lands and building hereinafter 
 mentioned and described, as by the record of said judgment 
 appears : 
 
 That thereupon an execution out of said court was issued 
 in the words and figures following, viz. : 
 
 (Here set out the execution in full.) 
 
 That thereafter the said sheriff (naming him), duly sold 
 the lands and buildings above mentioned, according to the 
 command of said execution and in the manner prescribed 
 by law, and that the proceeds of such sale, after deducting 
 the cost and expense thereof, including the sheriff's fees, 
 and amounting to the sum of dollars, were thereafter, 
 
 to wit, on the day of, etc., by the sheriff, paid to the 
 
 clerk of this court ^ to be distributed among the claimants 
 entitled thereto: that your petitioner, on the 
 
 day of, etc., filed his lien claim against the said land and
 
 FoKMs. 205 
 
 building, and against the said Thomas Romaine, as builder, 
 and the said John Carpenter, as owner, for an indebtedness 
 of dollars, etc., due to your petitioner from the said 
 
 Thomas Romaine, for wages for work and labor done and 
 performed, in the erecting and constructing the said build- 
 ing, by your petitioner, as a journeyman and laborer, and 
 that thereafter, to wit, on the day of, etc., your pe- 
 
 titioner, in a suit duly instituted to enforce his said lien 
 claim, in said court, recovered judgment for the sum of 
 dollars, etc., specially to be made of the said lands 
 and building, as by the record thereof appears, which said 
 lien claim and judgment of your petitioner are still respec- 
 tively undischarged and unsatisfied : 
 
 That one Jacob Fisher, on the day of, etc., filed 
 
 his lien claim against the said land and building, and 
 against the said Thomas Romaine, as builder, and the said 
 John Carpenter, as ownei', for an indebtedness of 
 dollars, etc., or some other sum alleged to be due to the 
 said Jacob Fisher, and that thereafter, and within the time 
 required by law, * suit was duly begun, said court, to en- 
 force said claim which suit is still pending and undeter- 
 mined : 
 
 That one Philip Rich, on the day of, etc., filed his 
 
 lien claim, etc, (a? in the last paragraph to the * and then 
 proceed) a summons was issued, in a suit to enforce said 
 lien claim, but the time of the issuance of such summons 
 was not endorsed upon the said lien claim, within the time 
 required by law, and that the said lien claim of the said 
 Phillip Rich thereby became and was discharged: 
 
 (In the same manner, set out all other lien claims, and 
 then proceed.) 
 
 That the said lien claim of your petitioner is entitled to 
 preference over all the other lien claims above mentioned, 
 and that your petitioner is entitled to be first paid therefor 
 out of the said proceeds of sale (see § 6 ante) : 
 
 That the said George L. Mott, as mortgagee, claims some 
 lien upon the said proceeds of sale by virtue of a mortgage 
 upon said lands and premises above mentioned and de- 
 scribed, given to him by on the day of, etc., 
 to secure dollars, etc., or some other sum ; but your 
 petitioner shows that any right, claim, or interest of the 
 said George L. Mott, in the said proceeds, if any he has, is
 
 206 Mechanics Lien Law. 
 
 subsequent and subject to the claims of jour petitioner and 
 of the said Samuel Andreus, but is prior to the claim of 
 all the other lien claimants above mentioned." 
 
 Your petitioner further shows that the lien claims above 
 mentioned are the only claims which have been filed against 
 the said land and building: and 
 
 Your petitioner, therefore prays that the said proceeds 
 of sale may be distributed, by the order of this court, among 
 said claims according to law and the rights of said several 
 claimants, as above mentioned.^ 
 
 X. Y. Z., Attorney. 
 
 State of New Jersey, 1 
 County of Bergen, /^*•• 
 
 William Stiles, the 
 
 above named petitioner, being duly swoni on his oath ac- 
 cording to law deposes and says he has read the foregoing 
 petition and that all the matters and the things therein al- 
 leged and set forth are true, as he is credibly informed and 
 believes. 
 
 (Jurat.) (Signature.) 
 
 1. Entitle the petition in the cause wherein the execution was 
 issued, under which sale was made. 
 
 2 If the sheriff refuses to pay the money into court he should 
 be ruled to do so. See § 29, note 2. To obtain such a rule, 
 neither pleading or proof is necessary. G-ifford v. McOuiness, 
 53 Atl, 87. 
 
 3. Mortgagees and other encumbrancers, whose liens are prior 
 to the lien claims are not interested parties, as the sale of the 
 property cannot cut off their liens. The owner, and subsequent 
 mortgagees, whose liens are cut off by the sale, are interested in 
 the surplus proceeds, if there are any; and are entitled, under the 
 statute, to litigate the validity, or the correctness of the various 
 lien claims, which have not been established by special judg-ment; 
 it would seem, therefore, that they are entitled to notice of this 
 proceeding ; and such would certainly be true m the case ol a 
 mortgagee whose encumbrance is subsequent to one hen claim 
 but prior to another; as may be the fact if the mortgage is an 
 advance money mortgage. For in such a case the mortgagee lias 
 an interest in regard to the way the proceeds are to be distributee! 
 among the lien claims, even although he admits them all to be 
 valid and correct. When such a case arises, the court may be 
 able to work out the problem of disposition whiob will be pre- 
 sented, for example, —
 
 FoKMs. 207 
 
 The proceeds of sale are $1,500 
 
 The lien claim A is for 500 
 
 The lien claim B is for 500 
 
 The mortgage is for 1,000 
 
 and is prior to lien claim B and subject to lien claim A. How 
 are the moneys to be distributed. See Hoag v. Sayre, 6 Stew. 552; 
 Day V. Munson, 14 Ohio St. 488; Clement v. Kaighn, 2 McCart. 
 47. In Hoag v. Sayre, Justice Dixon's dissenting view is the 
 same as the view adopted in the Ohio case, although he does not 
 cite it. It is said, in Law Notes, to be the better view. 
 
 Subsequent judgment, or other than mortgage, encumbrancers 
 are clearly not entitled to notice, as the statute gives them no right 
 to be heard upon the question of the validity, or correctness, of the 
 lien claims; but they may, perhaps, apply to be admitted on the 
 ground that the proceeds of sale will more than satisfy the other 
 claims, and that they are entitled to share in the surplus. 
 
 4. It would seem to be good practice, upon presenting this 
 petition to the judge, and having it marked as filed, to take a rule 
 to show cause. Such a rule could contain a direction to take 
 proofs, and, upon its return with such proofs and with due proof 
 of its service upon the parties interested, an order could be made. 
 If such a rule were made returnable on a day when the judge 
 was actually attending at the circuit, with a stenographer present, 
 there would seem to be no good reason why the proofs should not 
 be heard by him orally at that time. Such a practice would, for 
 many reasons, be advantageous. 
 
 27. — Rule to show cause on petition. § 29. 
 
 Bergen County Circuit Court. 
 
 Samuel Andreus, Claimant, "] 
 
 I 
 Thomas Eomaine, Builder, )■ On C<Dntract on Lien Claim. 
 
 John Carpenter, Owner, | 
 
 George L. Mott, Mortgagee, j 
 
 On reading and filing the petition of William Stiles, 
 praying for the distribution of the proceeds of the sale on 
 the execution issued on the judgment heretofoi*e entered in 
 this court in the above entitled cause, it is hereby ordered 
 that Thomas Riomaine, builder, John Carj>enter, owner, 
 George L. Mott, etc., (naming all the various claimants), 
 and each of them, show cause before said court on 
 the day of, etc., at the court house in Hackensack, 
 
 at ten o'clock in the forenoon, why an order should not be 
 made pursuant to the prayer of said petition:
 
 208 Mechanics Lieis' Law. 
 
 And it is fiirtlier ordered that the said parties, or either 
 
 of them, may take proofs on days notice,^ and that 
 
 a copy of this rule be served upon each of the parties and 
 
 persons above mentioned, by the said petitioner, at least 
 
 days before the return day hereof. 
 
 Let the above rule be entered. 
 
 J. D., Judge. 
 
 On motion of 
 
 C. L. & K., Attorneys of Petr. 
 
 Rule entered this day of, etc. 
 
 1. In lieu of this direction to take proofs, the judge might 
 direct that the parties produce their proofs orally before him on 
 the return day. 
 
 28.— Order of distributton. § 29. 
 
 (Title as in last two forms.) 
 
 This matter coming on, on rule to show cause heretofore 
 allowed upon the petition of William Stiles, and it being 
 made to appear that the proceeds of the sale of the land and 
 buildings, sold by virtue of the special writ of fieri facias 
 issued in the above stated cause, after deducting the sheriff's 
 fees, amounts to the sum of dollars, etc., and tliat 
 
 said sum has been paid into court by the sheriff; and that 
 the rights of the several persons entitled thereto are as fol- 
 lows, viz. : 
 
 The said William Stiles, for his said judgment, is firs't 
 entitled to be paid the sum of dollars, etc., in full; 
 
 The said Samuel Andreus, for his said judgment, of 
 dollars, etc. ; the said Jacob Fisher, for his claim 
 of dollars, etc. ; 
 
 (and so as to the others in like case) 
 are entitled to share the residue of said proceeds, pro rata, 
 between them; and no cause being shown or appearing 
 to the contrary; it is ordered that the clerk of this court 
 do first pay the said William Stiles (petitioner, his costs 
 of the proceedings, to be taxed; that he next pay the 
 said William Stiles the said sum of dollars, etc., due 
 
 him on his judgment ; and that he next distribute and pay 
 the remainder of said proceeds pro rata among the said 
 (naming the other claimants) according to the amount of 
 their several judgments or claims as aforesaid; provided
 
 Forms. 209 
 
 that he shall in no case pay to any of said claimants his said 
 share of said proceeds until after his lien claim shall have 
 been filed for three months. 
 
 Rule entered this day of, etc., A. D. 1902. 
 
 On motion of 
 
 Attorney. 
 Let the alwve rule be entered in the minutes. 
 
 J. D., Judge. 
 
 29. — Form of receipt to discharge lien claim. ^ 31. 
 
 Bergen County Clerk's Office. 
 
 Samuel Andreus, Claimant, \ 
 
 V. ( . . 
 
 Thomas Romaine, Builder, [ ^^^^" ^^^^"'• 
 
 John Carpenter, Owner. J 
 
 I hereby acknowledge that I have received the sum of 
 dollars, etc., in full payment and discharge of the 
 alx)ve entitled lien claim bv me heretofore filed. 
 Dated, etc. 
 
 SAMFEL AXDREUS (Seal). 
 
 I hereby certify that the foregoing receipt and discharge 
 was executed, on the day it bears date, in my presence by the 
 said Samuel Andreus, to whom I first made kno\vTi the con- 
 tents thereof, and who thereupon acknowledged that he 
 signed and sealed the same as his voluntary act and deed. 
 
 In witness whereof, I have hereto set my hand the day 
 and year aforesaid. 
 
 A. B., Master in Chancery of N. J. 
 
 30. — Affidavit to discharge lien claim. ^ 31. 
 
 Bergen C'ounty Clerk's Office. 
 
 (Copy, title and notice which have been served, see Form 
 14, and add) 
 
 State of New Jersey, \. ^ ^ . 
 County of Bergen, j 
 
 being duly 
 sworn on his oath according to law says that on the day of, 
 14
 
 210 Mechanics Lien Law. 
 
 etc., he served a notice signed by John Cai*penter, the above 
 named owner, and of which the foregoing is a true copy, on 
 the said Thomas Romaine, the above named claimant, by 
 giving the said notice to the said Thomas Romaine, person- 
 ally in hand ; and that, as appears upon the record, more 
 than thirty days, since said service, have elapsed without 
 such suit being commenced, or mthout any entry of the timo 
 of issuing such summons being made upon such lien claim. 
 (Jurat.) (Signature.)
 
 TABLE OF CASES CITED. 
 
 (211)
 
 TABLE OF CASES CITED. 
 
 PAGE. 
 
 Adams v. Wjells, 19 Dick. 211; 53 Atl. 610 60, 62, 68, 75 
 
 American Brick Co. v. Drinkhouse, 29 Vr. 432.. 95, 97, 106, 107, 109 
 American Brick Co. v. Drinkliouse, 30 Vr. 462, 
 
 77, 80, 81, 82, 83, 90, 107, 108, 109 
 
 Anderson v. Huff, 4 Dick. 349 60, 63, 64, 67, 69 
 
 Anderson Lumber Co. v. Friedlander, 25 Vr. 375 26 
 
 Arnett v. Finney. See Case v. Arnett. 
 
 Arzonico v. West New York, 46 Vr. 21; 69 Atl. 450, 
 
 58, 151, 153, 154 
 Associates v. Davisou, 5 Dutch. 415, 424. .31, 32, 37, 78, 96, 97 
 
 Atkinson Co. v. Shields Co.. 72 Atl. 81. 36, 78, 127 
 
 Atlantic, etc., Co. v. Donnelly. See Brewing Go. v. Dormelly. 
 Ayres v. B«vere, I Dutch. 474 31, 40, 45, 118, 129, 130 
 
 Babbitt v. Condon, 3 Dutch. 154 36, 45, 77, 122, 127 
 
 Bank V. Bayonne, 3 Dick. 246 44 
 
 Barnaby v. Bradley & Currier Co., 31 Vr. 158 146 
 
 Barnett v. Griffith, 12 C. E. Or. 201 138 
 
 Bartley v. Smith, 14 Vr. 321 96, 107, 108, 129 
 
 Bates Co. v. Trenton Co., 41 Vr. 684 33, 34, 80, 96, 175 
 
 Bayonne Assn. v. Williams, 12 Dick. 503; 42 Atl. 171, 
 
 54, 68, 71 
 Bayonne Assn. v. Williams, 14 Dick. 617; 43 Atl. 669. ...68, 72 
 
 Beckhard v. Eudolph, 2 Rob. 315 32, 54, 59, 62, 63, 68 
 
 Beckhard v. Rudolph, 2 Rob. 740 33, 54, 55, 59, 63, 68 
 
 Bell V. Flemings' Ex'rs, 1 Beas. 13 ; id. 490 88 
 
 BeU V. Mecum, 46 Vr. 547; 68 Atl. 149 34, 95, 124, 127 
 
 Bement v. Trenton, etc., Co., 2 Vr. 246; 3 Vr. 513 97, 101 
 
 Berger, etc.. Co. v. Zabriskie, 75 N. Y. Supp. 1038 86 
 
 Bernz v. Marcus Sayre Co., 7 Dick. 275. .41, 42, 43, 64, 173, 174 
 Binns v. Slingerland, 10 Dick. 55 ; 11 id. 413, 
 
 71, 72, 73, 74, 89, 175 
 
 Blauvelt V. Fuller, 37 Vr. 46; 48 Atl. 538 41, 65, 73 
 
 Board of Ed. v. Duparquet, 5 Dick. 234 43, 44, 64, 68, 71 
 
 Booth V. Kiefer, 15 Dick. 57; 47 Atl. 12 41. 42, 65 
 
 Bowlbv V. Willison, 11 N. J. L. J. 42 60, 63, 68 
 
 Bozarth v. Dudley, 15 Vr. 304 41, 42 
 
 Bradley v. Byran, 16 Stew. 396 136 
 
 Bradlev, etc., Co. v. Berns, 6 Dick. 437 41, 42, 43 
 
 Bradner v. Roffsell, 28 Vr. 412 173 
 
 Brearley v. Cox, 4 Zabr. 289 <^0 
 
 Brennan v. Industrial Assn., 17 N. J. L. J. 204 54 
 
 (213)
 
 214 Mechaiv'ics Lien Law. 
 
 PAGE. 
 
 Brewing Co. v. Clement. See Brewing Co. v. Donnelly. 
 
 Brewing Co. v. Donnelly, 30 Vr. 48; id. 439 34, 77 
 
 Brown v. Daws, 3 Zabr. 483 122 
 
 Bruce V. Pearsall, 30 Vr. 62 26, 54 
 
 Buckley v. Hann, 39 Vr. 624 42 
 
 Budd V. Lucky. 4 Dutch. 484 45, 48 
 
 Budd V. Trustees, 22 Vr. 36 64 
 
 Burd V. Huff, 17 N. J. L. J. 80 35, 83, 84, 97, 133 
 
 Burnett v. Jersey City, 4 Stew. 341 43, 44, 64, 68, 71, 176 
 
 Byrne v. Sisters, etc., 16 Vr. 213 41, 173 
 
 Camden Wks. v. Camden, 15 Dick. 211; 47 Atl. 220, 
 
 57, 61, 151, 153, 154, 156 
 
 Camden Wk>. v. Camden. 19 Dick. 723; 52, Atl. 477, 
 
 61, 151, 153, 156 
 Campbell v. Taylor Mfg. Co.. 17 Dick. 307; 49 Atl. 1119. .80, 81 
 Campbell v. Tavlor Mfg. Co., 19 Dick. 344; 51 Atl. 723, 
 
 34, 80, 81, 122 
 
 Campbell Murrell Co. v. Leliocky, 73 Atl. 515 45, 46 
 
 Carlisle v. Knapp, 22 Vr. 329 25, 53, 54, 55, 57 
 
 Case V. Arnett, 11 C. E. Gr. 459: 2 Stew. 309 80 
 
 Central R. E. Co. v. State Bd., 46 Vr. 120; id. 771; 67 Atl. 
 
 672 21 
 
 (Central Trust Co. v. Bartlett. 28 Vr. 206 118 
 
 Central Trust Co. v. Continental, etc., Co., 6 Dick. 605 88 
 
 Chism V. Schipper, 22 Vr. 1 41, 173 
 
 Cliosen Freeholders v. Lindsley. 14 Stew. 189, 195. .64, 68, 71 
 
 Clark V. Butler, 5 Stew. 664 36, 126, 136, 138 
 
 Clement v. Xaiahn, 2 McCart. 47 207 
 
 Coddington v. Beebe, 5 Diitch. 550 L' • • HE 
 
 Coddington V. Beebe. 2 Vr. 477. .34, 36, 81, 118, 123, 124, 127 
 
 Cogan V. Conover Co.. 3 Eob. 809 44 
 
 Coles V. First Bapt. Ch., 30 Vr. 311 • • 117 
 
 Combs V. Lippincott, 6 Vr. 481 33, 83 
 
 Congdon v. Cook. 55 Minn. 1 •■■■•■ •••• 86 
 
 Corcoran v. Jones, 12 N. J. L. J. 38 36, 78, 96, 118, 119 
 
 Cornell v. Matthews. 3 Dutch. 522. .96, 118, 122, 124, 127. 128 
 
 Cox V. Flanagan, 2 Atl. 33 97. 101, 119, 124 
 
 Cox V. Marlatt, 7 Vr. 389 i: ' VoW HI 
 
 Craig V. Smith, 8 Vr. 549 63, 65, 71, 122, 123 
 
 Crane Co. v. Belfatto, 47 Vr. 451; 69 Atl. 1085 66 
 
 Crouse v. Lewis, 30 Vr. 288 142 
 
 Cueman v. Barnes, 11 N. J. L. J. 172 13^ 
 
 Culver V. Liebei-man, 40 Vr. 341 112, 118, 119, 122 
 
 Currier v. Cummings, 13 Stew. 145 37, 78, 80, 119, 139 
 
 Cutter V. mine, 8 Stew. 534; 7 Stew. 329 125, 126, 129 
 
 Dalrvmple v. Eamsey, 18 Stew. 494 • • • -32, 36 
 
 Daly V. Somers Co., 4 Eob. 343; 1 Buch. 307 68, 77, 174 
 
 Day V. Munson, 14 Ohio St. 488 207
 
 Table of Cases Cited. 215 
 
 PAGE. 
 
 Delafield v. Sayre, 31 Vr. 449 57, 149, 151, 154, 160, 162, 164 
 
 DeMott V. Stockton, etc., Co., 5 Stew. 124 102, 105 
 
 Derrickson v. Edwards, 5 Dutch. 468 94, 106, 110 
 
 Dey V. Anderson, 10 Vr. 201 35 
 
 Dey V. Davis, 18 N. J. L. J. 301 78 
 
 Dimmick v. Metr. Ins. Co., 38 Vr. 367 122, 195 
 
 Dodge et al. v. Romain, 15 Atl. 114 86 
 
 Donnellv v. Johnes, 13 Dick. 442; 44 Atl. 180, 
 
 44, 60, 63, 68, 72, 75 
 Doty V. Auditorium Co.. 20 Dick. 768 ; aff. s. c. 56 Atl. 720, 
 
 98, 105, 106, 107 
 
 Downington, etc., v. Franklin Mills, 34 Vr. 32... 95 
 
 Drinkhouse v. Am, Brick Co. See American Brick Co. v. 
 Drinlchouse. 
 
 Dunn V. Stokern, 16 Stew. 401 42, 60, 68, 174 
 
 Dyer v. Lintz, 68 Atl. 908 42 
 
 Earle v. Willetts, 27 Vr. 334; 24 Vr. 270 38, 66, 78 
 
 Edge V. McClay, 64 Atl. 969; 2 Buch. 216 68, 73, 75 
 
 Edwards v. Derrickson. 4 Dutch. 39; 5 id. 468, 
 
 34, 35, 80, 94, 96, 97, 109, 118, 129 
 
 Egbert r. DeCamp, 3 N. J. L. J. 284 138 
 
 English V. Warren, 20 Dick. 30 45, 46, 56, 68 
 
 Ennis V. Eden Co., 36 Vr. 577: 48 Atl. 610, 
 
 102, 105, 118, 119, 120, 122, 202 
 
 Erdman v. Moore, 29 Vr. 445 33, 77, 79, 80, 92, 96, 118, 139 
 
 Evans v. Lower, 1 Bob. 232. .45, 54, 59, 60, 61, 62, 63, 64, 68, 175 
 
 Faith v. McXair, 13 N. J. L. J. 44 95, 123 
 
 Federal Trust Co. v. Guigues, 74 Atl. 652, 
 
 95, 110, 140, 173, 174, 175 
 
 Feeney v. Bardsley. 37 Vr. 239 42 
 
 Fehling V. Goings, 1 Rob. 375 54, 59, 62, 63, 64, 68 
 
 Fell V. McManus, 1 Atl. 747 44, 64, 176 
 
 Five Mile Beach Co. v. Friday. 66 Atl. 901 125 
 
 Flaherty v. Atlantic Lumber Co., 13 Dick. 467; 44 Atl. 186, 
 
 44, 60, 63, 68, 72 
 
 Foster v. Rudderow, 3 Atl. 694 62, 68 
 
 France v. Netherwood. 2 N. J. L. J. 90 35 
 
 Frank v. Freeholders, 10 Vr. 347 36, 55, 57 
 
 Freedman v. Sandknop, 8 Dick. 243 45, 68 
 
 Fry V. Patterson, 20 Vr. 612 60 
 
 Gardner & Meeks Co. v. Herold, 72 Atl. 27; 74 Atl. 568, 
 
 39, 58, 62, 66, 86 
 Gardner & Meeks Co. v. N. Y. Centr. Co., 43 Vr. 257. .31, 34, 54 
 
 Garretson v. Clark, 57 Atl. 414 151, 159 
 
 Garrison v. Borio. 16 Dick. 236; 47 Atl. 1060, 
 
 57. 61, 151, 153, 154, 156, 162 
 Gay v. Hervey, 12 Vr. 39 78
 
 216 Meohaxics Lien Law. 
 
 PAGE. 
 
 Gay V. Smith, 1 N, J. L. J. 51 ; 12 Vr. 39 79 
 
 Gerard v. Birch, 1 Stew. 317 95, 109, 110, 125 
 
 Gibbs V. Grant, 2 Stew. 420 78, 136, 137 
 
 Gifford V. McGuinness, 18 Dick. 834; 53 Atl. 87 141, 206 
 
 Gordon v. Torrey, 2 McCart. 112. .95, 96, 97, 118, 126, 129, 133 
 
 Griffin V. N. J., etc., Co., 3 Stock. 49 88 
 
 Griggs V. Stone, 22 Vr. 549 31, 80, 81 
 
 Hagan v. Gaskill, 15 Stew. 215 78, 84 
 
 Hall V. Acken. 18 Vr. 340 36, 79 
 
 Hall V. Baldwin, 18 Stew. 858 60, 63, 68, 71 
 
 Hall V. Jersey City, 17 Dick. 489; 50 Atl. 603, 
 
 35. 58, 61, 151, 153, 154, 155, 156, 157, 160. 164 
 Hall V. Jersey City, 19 Dick. 768; 53 Atl. 481, 
 
 61, 151, 153, 155, 156, 157. 160, 164 
 
 Hall V. Spaulding, 11 Vr. 166 101, 125, 142 
 
 Hazard v. Bd. of Ed., 75 Atl. 237. .151, 1.53, 155, 156, 157, 158 
 
 Heidelbach v. Jacobi, 1 Stew. 544 134 
 
 Heinselt v. Smith, 5 Vr. 215 140 
 
 Heintze v. Bentley, 7 Stew. 562 88 
 
 Herman, etc., Co. v. Essex Co., 1 Buch. 541; 64 Atl. 742, 
 
 151, 153 
 Herman, etc., Co. v. Essex Co., 3 Bnch. 415, 416, 417; 75 
 
 Atl. 1101, etc 151, 153 
 
 Herman, etc., Co. v. Sayward. See Herman, etc., Co. v. Essex 
 
 Co. 
 Hervey v. Gay, 13 Vr. 168; 12 Vr. 39; 1 N. J. L. J. 51. .78, 82 
 
 Hill V. Carlisle, 14 N. J. L. J. 114 45 
 
 Hoag V. Sayre, 6 Stew. 552 207 
 
 Howell Lumber Co. v. New Brunswick, 75 Atl. 750 165 
 
 Huber V. Diebold, 10 C. E. Gr. 170 136 
 
 Hughes V. Lambertville, etc., Co., 8 Dick. 435 80 
 
 In re Margarum, 26 Vr. 12 108 
 
 Isetts V. Bliwise, 43 Vr. 102 42 
 
 Jacobus V. Mut., etc., Co., 12 C. E. Gr.. 604; 11 C. E. Gr. 389, 
 
 88, 91, 96, 125. 1.33, 139 
 James v. Van Horn. 10 Vr. 353, 
 
 97, 101. 106, 107, 109, 110, 112, 119, 120, 122, 126, 127, 133 
 
 Johnson v. Algor, 36 Vr. 363 ; 47 Atl. 571 112 
 
 Johnson v. Parker, 3 Dutch. 239 36, 86 
 
 Kaighn v. Friday, 73 Atl. 540 125 
 
 Kelaher v. English. 17 Dick. 675; 50 Atl. 902, 
 
 58, 151, 154. 160 
 
 Kennedy v. Parke, 2 C. E. Gr. 415 44 
 
 King V. Berry, 2 Gr. Ch. 44 44 
 
 Kirtland v. Moore, 13 Stew. 106 41, 43, 53, 60, 63, 68, 71, 173 
 
 Kittredge v. Neumann, 11 C. E. Gr. 195 86, 138
 
 Table of Cases Cited. 217 
 
 PAGE. 
 
 Kline v. Cutter. See Cutter v. Kline. 
 
 Kline v. McGuckin, 9 C. E. Gr. 411 88 
 
 Kreutz v. Cramer, 19 Dick. 648 68, 73 
 
 LaFoucherie v. Knutzen, 29 Vr. 234 45, 47, 48 
 
 Lamb v. Cannon, 9 Vr. 362 136, 138 
 
 Lanahan v. Lawton, 5 Dick. 276 88 
 
 Lanigan v. Bradleyi etc., Co., o Dick. 201 43, 64, 71 
 
 Learj' v. Lamont, 42 Atl. 97 68, 71 
 
 Leaver v. Kilmer, 54 Atl. 817 127 
 
 Leaver v. Kilmer, 59 Atl. 643 36 
 
 Leonard v. Cook, 20 Atl. 855 78 
 
 Loh V. B'way Co., 71 Atl. 112 42 
 
 Macintosh v. Thurston, 10 C. E. Gr. 242. .36, 78, 88, 118, 136, 137 
 
 Mackinson v. Conlon, 26 Vr. 564 173 
 
 McNab, etc.. Co. v. Paterson Bldg. Co., 1 Buch. 133, 
 
 3, 32, 52, 54, 55, 56, 57, 59, 62, 63, 68 
 McNab, etc., Co. v. Paterson Bldg Co., 2 Buch. 929, 
 
 32, 33, 52, 55, 59, 62, 68 
 McPherson v. Walton. 15 Stew. 282 43, 44, 60 
 
 Magowan v. Stevenson, 29 Vr. 31 26 
 
 Manhattan Assn. v. Massarelli, 42 Atl. 284 144 
 
 Manhattan Co. v. Paulison, 1 Stew. 304 35, 133 
 
 Marcus Sayre Co. v. Moore, 19 N. J. L. J. 110 108 
 
 Margarum. See in re Margarum. 
 
 Matthews v. Wjarne, 6 Halst. 295 141 
 
 Mayer v. Mutchler, 21 Vr. 162 64, 65, 71 
 
 Mechanics Co. v. Albertson, 8 C. E. Gr. 318 42, 47, 139 
 
 Meurer v. Kilgus, 75 Atl. 899 154 
 
 Meyer v. Berlandi, 39 Minn. 438; 12 Am. St. Rep. 663 86 
 
 Miller v. Stockton, 35 Vr. 614 44 
 
 Monmouth Park Assn. v. Wallis Wks., 26 Vr. 132 176 
 
 Mooney v. Peck, 20 Vr. 232 123 
 
 Morris Co. Bnk. v. Eockaway Mfg. Co., 1 McCart. 189. .34, 95, 122 
 Morris Co. Bnk. v. Rockaway Mfg. Co., 1 C. E. Gr. 150. .112, 126 
 
 Murphy v. Borden, 20 Vr. 527 143 
 
 Murphy, etc., Co. v. Nicholas, 37 Vr. 414; 49 Atl. 447, 
 
 34, 38, 45, 57 
 
 MuiThy V. Hussa, 40 Vr. 381 82, 90 
 
 Mutual Benefit Co. v. Rowland. 11 C. E. Gr. 389, 
 
 34, 119, 125, 127, 128, 133 
 Mutual, etc., Co. v. Walling. 6 Dick. 99 89, 90 
 
 National Bank v. Sprague. 5 C. E. Gr. 13 36, 78, 136 
 
 National Fire Proofing Co. v. Daly, 74 Atl. 152, 
 
 151, 153, 156, 157, 158, 160 
 
 Naylor v. Smith, 34 Vr. 596; 35 id. 358 124 
 
 Neil V. Watson, 15 N. J. L. J. 138 38, 45, m
 
 218 Mechanics Lien Law. 
 
 PAGE. 
 
 Newark Lime Co. v. Morrison, 2 Beas. 133 134 
 
 New Jersey, etc., Co. v. Bachelor, 9 Dick. 600 89, 136, 137 
 
 New York, etc., Co. v. Kiernan, 44 Vr. 763 123, 128 
 
 Norton v. Sinkhorn, 16 Dick. 508; 48 Atl. 822, 
 
 57, 151, 153, 154, 162 
 Norton v. Sinkhorn, 18 Dick. 313; 50 Atl. 506, 
 
 59, 151, 153, 154, 161, 162 
 
 Ottawa Tribe v. Munter, 31 Vr. 459 124 
 
 Pennoyer v. Neff, 95 U. S. 714 119, 190 
 
 Perrine v. Parker, 5 Vr. 352 80 
 
 Person v. Herring, 34 Vr. 599 ; 44 Atl. 753 72 
 
 Pierson v. Haddonfield, 21 Dick. 180; 57 Atl. 471, 
 
 151, 155, 159, 162 
 
 Pimlott V. HaU, 26 Vr. 192 45 
 
 Piatt V. Griffith, 12 C E. Gr. 207 88 
 
 Porch V. Agnew Co., 4 Eob. 328 33, 88, 92, 139 
 
 Porch V. Fries, 3 C. E. Gr. 204 58 
 
 1 
 
 Quick V. Corlies, 10 Vr. 11 35 
 
 Quinby v. Manhattan, etc., Co., 9 C. E. Gr. 261 80 
 
 Randolph v. Builders, etc., Co., 106 Ala. 501 86 
 
 Raymond v. Post, 10 C. E. Gr. 447 95, 123, 125, 144 
 
 Reed v. Rochford, 17 Dick. 186; 50 Atl. 70 84, 88, 91 
 
 Reeve v. Elmendorf, 9 Vr. 125 60, 64, 65, 66, 67 
 
 Robins V. Bunn, 5 Vr. 322 96, 118, 129, 130 
 
 Robinson v. Urquhart, 1 Beas. 515 88 
 
 Rogers v. Brokaw, 10 C. E. Gr. 496 80 
 
 Roselle Park v. Montgomery, 60 Atl. 954 151, 158, 160, 161 
 
 St. Peters Church v. Van Note, 21 Dick. 78, 
 
 45, 64, 68, 162, 174 
 
 Schmidt V. Eitel, 4 Rob. 8 68 
 
 Scott V. Reeve, 10 N. J. L. J. 12 37 
 
 Scudder v. Harden, 4 Stew. 503 31, 47, 126 
 
 Sewall V. Hawkins, 17 Vr. 161. 6 69, 106, 107 
 
 Shallcross v. Deats, 14 Vr. 177 141 
 
 Shannon v. Hoboken, 10 Stew. 123 43, 63, 71 
 
 Sherer v. Collins, 2 Harr. 181 28 
 
 Sheyer v. Pinkerton Co., 59 Atl. 462 173, 174, 175 
 
 Sinnickson v. Lynch, 1 Dutch. 317 28 
 
 Slingerland v. Binns, 11 Dick. 413 71, 72, 73, 74, 89, 175 
 
 Slingerland v. Lindsley, 1 N. J. L. J. 115 35, 96, 118 
 
 Smith V. Colloty, 40 Vr. 365 119, 127, 190 
 
 Smith et al. v. Dodge & Bliss Co., 14 Dick. 584; 44 Atl. 639, 
 
 41, 44, 68, 72, 76 
 
 Snyder v. New York Co.. 43 Vr. 262 34 
 
 Somers Co. v. Souders, 4 Rob. 388 ; 61 Atl. 840, 
 
 151, 155, 158, 159, 160, 161, 163
 
 Table of Cases Cited. 219 
 
 PAGE. 
 
 Somers Co. v. Souders, 1 Buch. 759; 70 Atl. 158, 
 
 151, 155, 158, 159, 160, 161, 163 
 South End Imp. Co. v. Harden, 52 Atl. 1127, 
 
 35, 42, 44, 54, 59, 60, 62, 68, 77, 174 
 
 State V. Salem Pleas, 5 Halst. 319 141 
 
 Stebbins v. Walker, 2 Gr. 90 140, 141 
 
 Steelman v. Ludy, 72 Atl. 423 173 
 
 Sterling v. Van Cleve, 7 Halst. 285 141 
 
 Stevenson v. Meeker, 18 N. J. L. J. 51 35 
 
 Stewart Co. v. Trenton Co., 42 Vr. 568, 
 
 36, 96, 122, 124, 133, 175, 195 
 
 Stiles V. Galbreath, 3 Eob. 222; aff. 1 Buch. 299 92, 140 
 
 Strong V. Van Deursen, 8 C. E. Gr. 369 78, 136 
 
 Summerman v. Knowles, 4 Vr. 202 55, 57, 65, 66 
 
 Supt. V. Heath, 2 McCart. 22 43, 44, 53, 58, 67, 71 
 
 Taliaferro v. Stevenson, 29 Vr. 165 35 
 
 Taylor v. LaBar. 10 C. E. Gr. 222 88 
 
 Taylor v. Reed, 39 Vr. 178; 52 Atl. 579 65, 73, 75 
 
 Taylor v. Wahl, 40 Vr. 471 60, 61, 65, 67, 69 
 
 Taylor v. Wahl, 43 Vr. 10 60 
 
 TerKnile v. Reddick, 39 Atl. 1062 68 
 
 Thompson v. Pierson, 2 Penn. 1019 141 
 
 Title Co. V. Wrenn. 35 Greg. 62; 76 Am. St. Rep. 454 86 
 
 Titus V. Gunn, 40 Vr. 410 117, 175 
 
 Tompkins v. Horton. 10 0. E. Gr. 284 118, 126, 135 
 
 Tomlinson v. DeGraw, 2 Dutch. 73 123, 124 
 
 Trade Ins. Co. v. Barraeliff, 16 Vr. 543 58 
 
 Trenton Com'rs. v. EeU. 7 Dick. 689; 29 Atl. 816 151, 153 
 
 Trenton, et<'.. Co. v. WoodrufF, 1 Gr. Ch. 118 88 
 
 Turner v. MiUer, 61 Atl. 741 68 
 
 Turner v. Wells, 35 Vr. 269; 45 Atl. 641 43, 175, 176 
 
 Turner v. Wells, 38 Vr. 572; 52 Atl. 358 175 
 
 Union Stone Co. v. Hudson Co., 1 Buch. 657; 65 Atl. 466, 
 
 151, 153, 162, 163 
 
 United States Co. v. Newark, 66 Atl. 904 151, 161, 162 
 
 United State Co. v. Newark, 74 Atl. 192 44, 151, 160, 176 
 
 Updike V. Skillman. 3 Dutch. 131 80, 83 
 
 Van Alstyne v. Franklin Council, 40 Vr. 672 127 
 
 Van Buskirk v. Bd. of Ed., 75 Atl. 909 173, 175, 176 
 
 Van Dyne v. Ness. 1 Halst. Ch. 485 28, 110 
 
 Van Pelt v. Hartough, 2 Vr. 331 34, 37 
 
 Veitch V. Clark. 1 Rob. 57 68, 77, 174 
 
 Vreeland v. Boyle, 8 Vr. 346 97, 106, 118, 121, 128 
 
 Vreeland v. Bramhall, 10 Vr. 1 106 
 
 Vreeland v. Knickerbocker Co., 46 Vr. 551 ; 68 Atl. 215, 
 
 95, 96, 97, 107, 117, 124, 125
 
 220 Mechanics LiejST Law. 
 
 PAGE. 
 
 Wallace v. Silsby, 13 Vr. 1 137 
 
 Ward V. Cooke, 2 C. E. Gr. 93 88 
 
 Ward V. Hague, 10 C. E. Gr. 397 138 
 
 Wasliburn v. Burns, 5 Vr. 18 36, 79, 86, 96, 118, 124, 128 
 
 Weaver v. Atlantic, etc., Co., 12 Dick. 547; 40 Atl. 858, 
 
 43, 45, 47, 55, 56, 68, 72 
 
 Weaver v. Demuth, 11 Vr. 238 36 
 
 Welch V. Hubschmitt Co., 32 Vr. 57 173 
 
 Wheaton v. Berg, 50 Minn. 525 86 
 
 Wheeler v. Abnond, 17 Vr. 161 101, 102, 107 
 
 Whitehead v. First Meth. Ch., 2 McCart. 135 134 
 
 Wliitenack v. Noe, 3 Stock. 321 80, 96, 134 
 
 Wightman v. Brenner, 11 C. E. Gr. 489 63, 67, 70 
 
 Willetts V. Earle, 24 Vr. 270; 27 Vr. 334 38, 41, 42, 66, 174 
 
 Williams v. Bradford, 21 Atl. 331 54, 62, 68 
 
 Williamson v. Johnson, 7 Halst. 86 141 
 
 Williamson v. N. J., etc., Co., 1 Stew. 296 97 
 
 Willison V. Salmon, 18 Stew. 357 71 
 
 Wilson V. Dietrich, 59 Atl. 250 151, 153, 163 
 
 Woodruff V. Chapin. 3 Zabr. 556 140, 141 
 
 Young V. Haight, 40 Vr. 453 92 
 
 Young V. Wilson, 3 N. J. L. J. 209 38, 47, 77, 78, 79
 
 INDEX. 
 
 (221)
 
 INDEX. 
 
 ADDITION TO A BUILDING— page. 
 
 declared to be a building 79 
 
 definition of 79 
 
 lien for, legislative origin and history of 17, 79 
 
 statutory provisions as to 79 
 
 ADVANCE MONEY MORTGAGES— 
 
 priority of, decisions as to 88, 89, 91, 92 
 
 discussion as to 88-92 
 
 statutory provisions as to 87, 91 
 
 ADVANCE PAYMENTS— 
 
 ovpner's liability for 69 
 
 ALTERATION OF A BUILDING— 
 
 definition of 80, 82, 83 
 
 includes fixtures, etc . , 83 
 
 lien for, legislative origin and history of 82 
 
 priority of 82 
 
 statutory provision as to 81 
 
 ALTERATION OF FIXED MACHINERY. See Altera- 
 tion of a building. 
 
 AMENDMENTS— 
 
 general authority to allow 128, 129 
 
 APPORTIONMENT OF THE BUILDING FUND— 
 
 discussion as to 75, 76 
 
 ARCPIITECT— 
 
 Authority of 173 
 
 Duties of 173 
 
 Lien of 34 
 
 ARCHITECT'S CERTIFICATE— 
 
 in case of his discharge 174 
 
 extra work 173 
 
 substantial performance 174 
 
 may be given when 77 
 
 production of, excused when 173 
 
 necessity for 173 
 
 peril in waiving 77, 174 
 
 ASSIGNMENT OF BUILDING CONTRACT— 
 
 effect of 44 
 
 forfeiture for , 43 
 
 stipulation against 43 
 
 (223)
 
 224 Mechanics Liejn' Law. 
 
 ASSIGNMENT OF THE BUILDING FUND— page 
 
 acceptance of 43 
 
 effect of, if assignment collateral 44 
 
 at law 43 
 
 in equity 43, 44 
 
 effective from when 43, 44 
 
 method of making 43 
 
 notice of, effect of 43 
 
 stipulation against 43, 176 
 
 validity of, in equity 43 
 
 ATTACHMENT CREDITOES— 
 
 priorities of. as to alterations, etc 83 
 
 BILL OF PARTICULARS— 
 
 contract work, how to be stated in 97 
 
 date of last item, importance of 97 
 
 must exhibit amount and kind of labor 92 
 
 amount and kind of materials 92 
 
 balance justly due 92 
 
 credits 92 
 
 dates 92, 97 
 
 prices 92 
 
 should not blend, items for alteration and repairs 97 
 
 items for labor and material 96, 126 
 
 BONA FIDE MORTGAGEES— 
 
 priorities of, as to alterations or repairs 82, 83 
 
 rights of, as to altering curtilage 108 
 
 who are 84 
 
 who are not 139 
 
 BONA FIDE PURCHASERS— 
 
 priorities of, as to alterations or repairs 82, 83 
 
 rights of, as to altering curtilage 108 
 
 BUILDING. See Additions to; Alteration of; Construction 
 of; Erection of; Fixed Gearing; Fixed Machinery; Fix- 
 tures for Mamifacturing Purposes; Removal of; Repara- 
 
 tion of. 
 
 commencement of 131, 133 
 
 lienability of. See Lien. 
 
 BUILDING CONTRACT. See Assignment of Buildirvg 
 Contract; Assignment of Building Fund; Filing d\f Build- 
 ing Contract. 
 
 Construction of clause — 
 
 as to alterations 174 
 
 against assignment 1 '4 
 
 as to completion by owner 174 
 
 as to order for extra work 175 
 
 against liens 1*5 
 
 as to penalty for delay 176 
 
 as to production of releases 175 
 
 form of 1^^
 
 Index. 225 
 
 BUILDING CONTRACT— (Cont'd). page. 
 
 married woman's signature to 38-41, 86 
 
 owner's signature to 38-41 
 
 performance of, rules as to 41, 42 
 
 BUILDING FUND. See Apportionment of the; Assignment 
 of the. 
 
 BUILDING LIEN LEGISLATION— 
 
 constitutionality of 31 
 
 construction of 31, 32, 33, 52 
 
 historical summary of 3-28 
 
 review of particular acts of — 
 
 Maryland Act of 1791 3 
 
 Pennsylvanici Act of 1803 3 
 
 Camden Act of 1820 (text) 4 
 
 Trenton Act of 1835 (text) 8 
 
 Fixed Machinery Act of 1845 (text) 11 
 
 Newark Act of 1847 (text) 12 
 
 General N. J. Act of 1853 (text) 15 
 
 Factory Repair Act of 1855. 23 
 
 General Repair Act of 1859 23 
 
 Stop Notice and Curtliage Act of 1863 (text) .... 24 
 
 Curtilage Act of 1868 25 
 
 Married Woman's Act of 1870 25 
 
 Docks Act of 1871 25 
 
 Apportionment Act of 1873 25 
 
 Married Woman's Act of 1876 25 
 
 Release of Lien Act of 1890 26 
 
 1892 26 
 
 COMMENCEMENT OF THE BUILDING— 
 
 need not be stated in lien claim 97 
 
 CONSTRUCTION OR ERECTION OF A BUILDING— 
 
 excludes what 33, 82 
 
 includes what 33, 34 
 
 lien for, legislative origin and history of 3-28, 33 
 
 statutory provision for 33 
 
 CONSTRUCTION OF LIEN ACTS. See Building lien leg- 
 islation, construclion. of. 
 
 CONSTRUCTION OF TERMS— 
 
 masculine gender 146 
 
 singular number 146 
 
 CURTILAGE— 
 
 decisions as to what is 110 
 
 description of, alteration of 108, 109 
 
 amendment of 108, 109 
 
 determination of 108, 109 
 
 omission of 109 
 
 lands under tide water as 36 
 
 legislative definition of 24, 2^. 28. 109. 110 
 
 15
 
 226 Mechanics Lien Law. 
 
 DEATH OF PARTIES— page. 
 practice in case of 129 
 
 DISPUTED CLAIM (on building fund)— 
 
 notice of, effect of 68, 69 
 
 form of 180 
 
 verification of 68, 69 
 
 DOCI^IETED JUDGMENT— 
 
 circuit court, in 116 
 
 execution upon 116, 130 
 
 index of 117 
 
 operation and effect of 116 
 
 record of 116, 117 
 
 review of 117 
 
 revival of 116 
 
 supreme court, in 130 
 
 DOCKS— 
 
 lienability of. See Lien. 
 
 legislative origin and history of lienability for 26, 84 
 
 EQUITABLE ESTATES. See Lien. 
 
 EKECTION OF A BUILDING. See Construction of. 
 
 ESTATE BY ENTIRETY— 
 
 lienability of 86 
 
 ESTATES FOR YEARS— 
 lienability of. See Lien. 
 
 legislative origin, etc., of 16, 77 
 
 lien upon, not lost by surrender of term 78 
 
 valuation in case of 78 
 
 EXECUTION— 
 
 concurrent claims, in case of 1-43 
 
 docketed judgment, upon 116, 117 
 
 form of, general and special 202 
 
 general and special judgment, in case of 130 
 
 proceedings upon 131 
 
 tenor of (special) 130 
 
 FEES- 
 
 amending lien claim ($0.50) 106 
 
 docketing judgment ($2.50) 116 
 
 jiling building contract ($0.12) 98 
 
 lien claim ($0.12) 98 
 
 recording lien claim per fol ($0.08) 98 
 
 searching for building contract ($0.06) 98 
 
 lien claim ($0.06) 98 
 
 FILING BUILDING CONTRACT. See Owner's Liability 
 tinder Filed Contract. 
 
 effect of, as to abandonment of contract 42 
 
 abrogation of contract 42 
 
 alteration of contract 76, 77
 
 Index. 227 
 
 FILING BUILDING CONTEACT— (Cont'd). page. 
 
 effect of, as to deviations and extra work 42 
 
 liens 37, 47 
 
 substituted other contract 42 
 
 effect of, if fictitious 38, 4? 
 
 if fraudulent 38, 47 
 
 legislative origin and history of 7, 16, 37 
 
 married women, in case of 38-41 
 
 mode of, requirements as to 37, 45-47 
 
 time of, requirements as to 37 
 
 FIXED GEARING— 
 
 declared to be a building 79 
 
 repair of, lien for 81 
 
 FIXED MACHINERY— 
 
 declared to be a building 79 
 
 repair of, lien for 81 
 
 FIXTLTRES. See Fixtures for Manufacturing Purposes. 
 
 FIXTURES FOR MANUFACTURING PURPOSES— 
 
 criterion of . 80, 81 
 
 declared to be a building 79 
 
 legislative origin, etc., of lien for 11, 23, 24, 79 
 
 lien for. See Lien. 
 
 meaning of the words, fixtures, etc 79 
 
 particular instances of, and not of 80, 81 
 
 repairs to, lien for 81 
 
 rule as to, in doubtful cases 81 
 
 FRAUDULENT ASSIGNMENTS— 
 
 attack upon ....'. 76 
 
 INCHOATE LIEN. See Stop Notice Claimants. 
 
 INFANTS' LANDS— 
 
 not liable when 36 
 
 JUDGMENT CREDITORS— 
 
 priorities of, as to alterations or repairs 83 
 
 JUDGMENT ON LIEN CLAIM. See Docketed Judgment. 
 
 amendment of 125 
 
 conclusiveness of 28, 125, 126 
 
 concurrent claims, in case of 142 
 
 docketing of, effect of 116 
 
 execution upon 116 
 
 method of 11 H 
 
 effect of 121, 123 
 
 form of, on verdict 201 
 
 form of, rule for, on default 199 
 
 on verdict 200 
 
 general, in what cases 121, 127 
 
 lien of 131 
 
 priorities, determination of, by 121 
 
 priority of 131
 
 228 Mechanics Lien Law. 
 
 JUDGMENT ON LIEN CLAIM— (Cont'd). page. 
 
 review of 125 
 
 special, in what cases 121, 127 
 
 tenor of 127 
 
 validity of 119 
 
 waiver of right to enter 127 
 
 LAND— 
 
 lienability of. See Lien. 
 
 LANDS UNDER TIDE WATER— 
 
 lienability of 36, 84 
 
 LICENSEE'S INTEREST— 
 
 not lienable 78 
 
 LIEN. See Lien Claim; Owner's Estate; Suit to Enforce. 
 
 attaches when 35 
 
 concurrence of (in case of several) 139 
 
 discharge of by decree in foreclosure 144 
 
 decree to quiet title 144 
 
 deposit of funds 145 
 
 failure to sue 143 
 
 laches. 95, 99, 102-105 
 
 lapse of time 143 
 
 payment 143 
 
 release 144 
 
 discharge of, form of affidavit for 209 
 
 form of receipt for 209 
 
 power to order 102-105 
 
 judge's order for 144 
 
 effect of, as to inchoate dower 138 
 
 enforcement of, extension of time for 99 
 
 equitable estates, in case of 36 
 
 estate by entirety, in case of 36 
 
 estate for years, in case of 77 
 
 extends to buildings 33, 77, 79, 81, 84, 85 
 
 docks 84 
 
 fixtures 79 
 
 lands 33, 77, 81, 84. 85 
 
 mills, etc 81 
 
 terms for years 77 
 
 given against whose estate 36 
 
 given for additions l 79 
 
 cartage 96 
 
 construction 33, 77, 84, 85 
 
 erection 33, 77, 84, 85 
 
 removal 84 
 
 repair 81, 85, 97 
 
 given to whom, generally 33, 34 
 
 architect 34 
 
 employer, etc 34 
 
 loss of. See Discharge of. 
 
 materials supplied but not used, for 34
 
 Index. 220 
 
 LIEN— (Cont'd). PAGE. 
 
 materials in fact used, for 95 
 
 particular instances of 33 
 
 priority of. See Priorities of Lien Claimants. 
 
 suspension of (by taking notes) 35 
 
 waiver of (by taking mortgages) 35 
 
 (by taking notes) 35 
 
 (by taking security) 35 
 
 LIEN CLAIM. See Bill of Particulars; Lien; Lien Claim- 
 ants; Suit to Enforce, etc., and other titles. 
 
 amendment of — 
 
 advisory opinion as to 107 
 
 authentication of 107 
 
 method of 106 
 
 omitted curtilage, in case of 109 
 
 particulars in which allowable 107 
 
 not allowable 107 
 
 period within which allowable 107 
 
 power to allow 97, 106 
 
 review of allowance of 108 
 
 apportionment of — 
 
 failure to make, effect of 112 
 
 method of making 112 
 
 release of part, in case of Ill 
 
 statutory provision as to Ill 
 
 suit to enforce 112 
 
 assignability of .34, 35 
 
 contents of — 
 
 bill of particulars 92 
 
 builder's name 92, 96 
 
 description of Imilding 92, 95 
 
 curtilage 92, 95 
 
 owner's name 92, 96 
 
 endorsement on — 
 
 omission of 99, 101 
 
 to be made when 99, 101, 119 
 
 errors in — 
 
 amendable 97 
 
 curable, in equity 97 
 
 by filing new claim 97 
 
 filed (to be)— 
 
 when 92, 94. 95, 99 
 
 where 92 
 
 why 95 
 
 form of — 
 
 in apportionment case 187 
 
 for constructing and altering 186 
 
 against one as owner and builder 185 
 
 contractor against owner 182 
 
 against different persons as owner and builder 185
 
 230 Mechanics Lien Law. 
 
 HEN CLAIM— (Cont'd) page. 
 
 judgmetit upon, validity of delayed 105 
 
 misstatements in. result of 93 
 
 owner's name (change of title) 96, 133 
 
 validity of, as to innocent mortgagee 95 
 
 verification of, by whom 93 
 
 necessity for 93 
 
 LIEN CLAIMANTS— 
 
 marshaling securities, rights as to 138 
 
 priorities of. See Priorities of Lien Claimants. 
 
 LIEN DOCKET— 
 
 entries in, extension of time for 99 
 
 particulars of 98 
 
 LIEN ON MUNICIPAL IMI'ROVEIklENT FUND— 
 
 abandonment of contract, in case of 162. 163 
 
 action to enforce — 
 
 begun (to be) when 158 
 
 consolidation of (several) 163 
 
 costs in 164 
 
 defenses in 162 
 
 judgment in, not to bar personal action 164 
 
 to be what 161,162 
 
 to decide what 161 
 
 nature of 162 
 
 necessity for 158 
 
 notice of, to be given 158 
 
 parties in 159. 161 
 
 practice in 162 
 
 trifling claim, in case of 160 
 
 waiver of assignee's rights, as 160 
 
 assignment of. effective when 160 
 
 attaches when 158, 159 
 
 concurrent remedy, a 154 
 
 discharge of, by certificate 164 
 
 by decree 164 
 
 by lapse of time 164 
 
 bv satisfaction 164 
 
 extent of. .... ! .152, 154, 158, 159, 161 
 
 given against what municipalities 153 
 
 given for what 157 
 
 given to whom 152, 153 
 
 laborers' preferences 163 
 
 notice of. filed when 155 
 
 filed with whom 155 
 
 record of 158 
 
 requisites of 154. 157 
 
 verification of 156 
 
 over-claim, efi^ect of 156 
 
 I)erfected, how 152 
 
 waiver (non) of, by taking assignment 160
 
 Index. 231 
 
 PAGE. 
 
 MARRIED WOMAN. See Building Contract; Filing of 
 Building Contract; Married Woman's Lands. 
 
 consent, inability to 86 
 
 dissent (statutory), form of 182 
 
 provision as to 85 
 
 knowledge of building, as to her 86 
 
 MARRIED WOMAN'S LANDS— 
 
 lienability of 36, 85, 86 
 
 constitutionality of statute as to 86 
 
 legislative origin and history of 25, 85, 86 
 
 MATERIALMEN. See Stop Notice. 
 stop notice — 
 
 legislative origin of right to 24, 25 
 
 MILLS, ETC.— 
 
 lienability of. See Lien. 
 
 MORTGAGE. See Mortgages and other titles. 
 
 creation of 139 
 
 MORTGAGES. See Bona-fide Mortgagees. 
 
 MUNICIPAL IMPROVEMENTS. See Lien on Municipal 
 Improvement Fund; Municipal Lands. 
 
 MUNICIPAL IMPROVEMENTS ACT. 
 
 construction of terms in 164 
 
 origin of 149 
 
 repealer in 165 
 
 review of provisions in 149 
 
 table of cases arising under 151 
 
 MUNICIPAL LANDS- 
 
 non-lienability of 36 
 
 NON-COMPOS— 
 
 lienability of lands of persons 78 
 
 OWNER'S CONSENT TO LIEN— 
 
 form of J 181 
 
 given how 7 r , (9 
 
 particular instances amounting to 77, 78 
 
 particular instances not amounting to 77, 78, 82 
 
 when necessary 77 
 
 when unnecessary 90 
 
 OWNER'S ESTATE— 
 
 necessary to lien 36 
 
 OWNER'S LIABILITY UNDER FILED BUILDING 
 CONTRACT— 
 
 maturity of, upon dispute and arbitration 42 
 
 upon performance, etc 41. 173 
 
 in case of stipulation for release 175
 
 232 Mechanics Liex Law. 
 
 PLEADINGS IN SUIT TO ENFORCE LIEN— page. 
 
 abatement, plea in 123 
 
 apportionment cases, in 122 
 
 builder, may plead what 120, 124 
 
 conditions precedent 122, 124 
 
 declaration in — 
 
 form of, on common counts 193 
 
 on sealed contract 195 
 
 recitals in 120, 122 
 
 schedules to 120, 123 
 
 tenor of 120' 122 
 
 defenses relinquished, plea of 125 
 
 demurrer 123 
 
 insufficient defenses 125 
 
 lands not liable, plea of 124 
 
 materials not used, plea of 124 
 
 mortgagees, may plead what 120, 121 
 
 form of pleas by 199 
 
 owner, may plead what 120, 125 
 
 form of plea by 198 
 
 set-ofF, pleading matter in 124 
 
 variance in 124 
 
 PRACTICE IN SUIT TO ENFORCE LIEN— 
 
 api)ortionment cases, in 122 
 
 death of parties, in case of 129, 130 
 
 filing declaration, as to 122, 123 
 
 interlocutory orders, as to 125 
 
 judgment, form of, as to 127 
 
 method prescribed for 120 
 
 references, as to 123, 127, 128 
 
 serving declaration, as to 123 
 
 special verdict, as to 126 
 
 PREFERENCES. See Stop Notice. 
 
 PRIORITIES OF LIEN CLAIMANTS. See Advance 
 Money Mortgages; Bona Fide Mortgagees; Bona Fide Pur- 
 
 chase7-s; Judgment on Lien Claim. 
 
 building only, as to the 134 
 
 inter se (none) 139 
 
 other encumbrancers, as to 134, 135, 139 
 
 purchasers in foreclosure, as to 138 
 
 purchase money mortgages 136, 137. 138 
 
 purchasers pendente lite 118, 119 
 
 PROCEEDS OF SALE, DISTRIBUTION OF— 
 
 application for, notice of 207 
 
 caveat against, provision for 140 
 
 form of 203 
 
 dilemma as to 206 
 
 method of 139 
 
 order for, form of 208
 
 Index. 233 
 
 PROCEEDS OF SALE, DISTRIBUTION OF— (Cont'd), page. 
 
 petition for, form of 204 
 
 power to effect 121, 140, 141 
 
 practice on application for 142 
 
 rule to show cause against, form of 207 
 
 sheriff (by the) out of court 141, 142 
 
 PURCHASERS. See Bona Fide Purchasers. 
 
 PURCHASE MONEY MORTGAGES— 
 
 priorities of 136, 138 
 
 PURCHASERS PENDENTE LITE— 
 
 rights of 118, 119 
 
 REMOVAL OF A BUILDING— 
 
 lien for, provision as to 84 
 
 legislative origin, etc.,, of lien for 84 
 
 REPARATION OF A BUILDING— 
 
 lien for, provision as to 81 
 
 legislative origin, etc., of lien for 11, 23, 81, 82 
 
 priority of lien for 82 
 
 REPEALER OF PRIOR BUILDING LIEN ACTS— 
 
 effect of, as to vested rights 146 
 
 as to prior repealed acts 145 
 
 STOP NOTICE. See Disputed Claim; Stop Notice Claim- 
 ants. 
 
 action at law upon — 
 
 averments in 65, 66 
 
 costs in 67 
 
 declaration in, form of 178 
 
 defenses in 66, 67 
 
 judgment in 67 
 
 jurisdictioin of 65 
 
 proofs in 65 
 
 quantum meruit count in 65 
 
 right of, accrues when 65 
 
 setting oft' prior notices in 67 
 
 contents of 48, 62, 63 
 
 effect of — 
 
 as an assignment 63, 64 
 
 builders' sureties, as to 64 
 
 generally, as to 48 
 
 trustee in bankruptcy 64 
 
 false contract, in case of 57 
 
 form of 176 
 
 interpleader suit upon — 
 
 costs in 68 
 
 list of reported cases of 68 
 
 pleading in 68 
 
 practice in 67 
 
 right to institute, exercisable when 67, 68
 
 234 Mechanics Lien Law, 
 
 STOP NOTICE— (Cont'd). page. 
 
 legislative origin and history of 10, 16, 24, 25, 48, 50, 52 
 
 married woman owner, as to 87 
 
 may be given by — 
 
 assignee of claimant 54 
 
 builder's journeyman 48 
 
 laborers 48 
 
 materialmen 48 
 
 sub-contractor 54 
 
 may (perhaps) be given by journeymen who have also a 
 
 lien 55 
 
 laborers who liave also a lien . . 55 
 
 may be given, how 48 
 
 when 48 
 
 may not be given by — 
 
 builder's general creditor 54 
 
 materialman who can have a lien 55 
 
 sub-contractor's creditor 53 
 
 public buildings, in case of 57 
 
 service of — 
 
 method of making 63 
 
 notice of, form of 177 
 
 settlement of claim under, effect of 48 
 
 signature to 62 
 
 tenor of 62, 63 
 
 waiver of rights under 66 
 
 STOP NOTICE CLAIMANTS— 
 
 inchoate lien of 70-75 
 
 must show — 
 
 builder's indebtedness 58 
 
 builder's refusal to pay 62 
 
 building contract filed 58 
 
 indebtedness due 59 
 
 materials, etc., use of 59 
 
 owner's estate 58 
 
 owner's satisfaction with claim 63 
 
 sei'viee of notice 62 
 
 timely demand 59 
 
 true demand 60 
 
 preferences of (journeymen, etc.) 70 
 
 (generally) 70, 72-75 
 
 priorities of, inter se 71 
 
 SUIT TO ENFORCE BUILDING LIEN— 
 
 absent defendants in, how served 114, 115 
 
 appearance of defendant in, effect of 119, 127 
 
 api>ortionment cases, in 112, 118 
 
 begun (to be) — 
 
 how 113, 114 
 
 when (in case of notice) 99 
 
 when (in case of no notice) 99
 
 Index, 235 
 
 SUIT TO ENFORCE BUILDING LIEN— (Cont'd). page. 
 
 costs in 1-1 
 
 evidence in 1-3 
 
 execution in. See Execution. 
 extension of time to prosecute — 
 
 discussion as to 102, 105 
 
 form of agreement for ISS 
 
 judgment in. See Judgment on Lien Claim; Docketed 
 Judgment. 
 
 jurisdiction of 113, 114, 117 
 
 laches in prosecuting — 
 
 how established 102, 105 
 
 what is 102, 10.5 
 
 nature of H ^ 
 
 notice to begin, effect of 99, 100 
 
 form of 189 
 
 pai'ties defendant — 
 
 generally 28, 113, 114, 117, 118, 119 
 
 in case of death 120 
 
 pleadings in. See Pleadings in Suit to Enforce Lien. 
 practice in. See Practice in Suit to Enforce Lien. 
 
 pre-requisites to 117 
 
 prosecution of, diligence required 99 
 
 reference. See Practice in Suit to Enforce Lien. 
 
 special verdict in, necessary when 12<> 
 
 stayed how 143 
 
 when 14"' 
 
 summons in — 
 
 directed how 113. 115 
 
 duplicate of whe)i issued 113, 115 
 
 form of 113, 114. 189 
 
 returnable how 113, 115 
 
 service of, defective 119 
 
 how made 113, 115, 119 
 
 how returned 114, 115, 120 
 
 how returned (forms) 190. 192 
 
 recital of 122 
 
 where made 113, 115 
 
 tested how 113. 115. 119 
 
 surplus proceedings in. See Proceeds of Sale, etc. 
 
 unnecessary when 105 
 
 variance in 118, 121, 124 
 
 TABLE OF STATUTES (1853-1898) 26 
 
 TRANSITORY SEIZIN— 
 
 insufficient to support building lien 36
 
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