Thomas v. Turner

Baktol, J., delivered the opinion of this court: The scire facias, in this case, was issued on the 23rd of .December 1854, for the purpose of enforcing a claim of the ¹¹⁰ appellees under the Mechanics’ Lien Law of 1838, ch. 205, and its supplements. The claim was for lumber furnished to Jacob P. Kridler, at different periods, from the 10th of May to the 9th of November 1854. It appears from the record, that on the 18th of September 1854, Kridler gave to the appellees his note for $824.57, at four months, in settlement of his account to that date, and which included all the items in the lien account to the date of the note. If it were conceded that the appellees have a lien which might be enforced, it is clear that to the extent which their claim is covered by the note, the piesent writ of scire facias cannot be maintained, it having been issued prematurely.

The Act of 1845, ch. 287, sec. 5, after providing that a lien is not waived by granting a credit or receiving notes or other securities, unless the same be received as payment, or the lien be expressly waived; provides, “that the sole effect thereof shall be to prevent the issuing of a scire facias or other proceedings, to enforce the said lien, until the expiration of the credit agreed upon.” Under this Act the appellees could not proceed till after the maturity of the note which was not till the 21st of January 1855. In answer to this view two grounds have been urged on the part of the appellees. “1st. That the granting of credit, or receiving a note, applies to the case when such credit is given, and such note is received bona fide;” in this case it is alleged the credit was obtained fraudulently. “2nd. That the delay, secured by the Act of Assembly, is a benefit conferred only upon the party to whom the credit is given, or from whom the note is received, and does not enure to the benefit of any third party unconnected with the credit. ’ ’ The record furnishes no evidence, whatever, that any fraud was perpetrated, or intended, by Kridler in the settlement made on the 18th of September.

It is proved that about the last of November following, he absconded from the city of Baltimore; but it nowhere appears that he contemplated such ¹¹¹ a step two months before; or that any of the causes then existed, which afterwards induced him to run away and fly