Kees v. Kerney

Tuck, J., delivered the opinion of this court. This is a proceeding under the mechanics’ lien laws, in force in the city of Baltimore. The claim filed before the attachment was issued is not in the record. Consequently we cannot discover whether the alleged debt was contracted by the owner with the plaintiff, or was for work and labor or materials furnished by some person employed, not by the owner of the property, but by the builder.

In the first case the claim would show a contract or promise, express or implied, on the part of the defendant, to which non assumpsit would be a proper plea. In the latter case the law would not raise an assumpsit as between the parties, but the plaintiff might, nevertheless, enforce his lien against the property, under the 9th sec. of 1838, ch. 205, by showing that he had done work, or furnished materials for the building, at the instance of the contractor. Compliance with the provisions of the act would ⁴²² entitle him to recover, although the defendant had not promised, and thereby made himself answerable for the claim. The claim filed performs the office of a declaration, when made as required by the act of Assembly.

The sci. fa. notifies the party and gives him an opportunity of showing cause against enforcing the lien. In some cases, as we have said, the general issue in assumpsit may be relied