| W. Va. | Jan 6, 1866
HARRISON, N., J., delivered the opinion of the court.
The court is of opinion that the circuit court erred in dismissing the petition of the appellant for the following reasons: *254 First, Because the stack constructed by the appellant in the pork-house, although necessary for the purposes of that establishment, was equally essential to the distillery, which is proved to have been situated at the north side of the porkhouse, and to be attached thereto. Whether it was so attached or not, and although the pork-house as such may be used independently of the distillery; yet the stack being erected for the purpose of carrying on both establishments, and being a structure necessary to the same, must be regarded as a part thereof, and the appellant's account for such construction as constituting a lien upon both.
Second, Because the bill of exchange for 494 dollars and 38 cents drawn by the appellant for the amount of his account, and accepted by Herr Co., at sixty days, was neither an extinguishment of his debt, nor a waiver of his mechanics' lien under the statute.
The cases of Harring vs. Sanger, 3 Johns. Cases, 71; Toby vs.Barber, 5 Johns., 68" court="N.Y. Sup. Ct." date_filed="1809-11-15" href="https://app.midpage.ai/document/tobey-v-barber-5472458?utm_source=webapp" opinion_id="5472458">5 Johns., 68; Putnam vs. Lewis' adm'r, 8 Johns., 389" court="N.Y. Sup. Ct." date_filed="1811-10-15" href="https://app.midpage.ai/document/putnam-v-lewis-5472913?utm_source=webapp" opinion_id="5472913">8 Johns., 389, andVan Eps vs. Dillage, and others, 6 Barb., 244" court="N.Y. Sup. Ct." date_filed="1849-05-01" href="https://app.midpage.ai/document/van-eps-v-dillaye-5457640?utm_source=webapp" opinion_id="5457640">6 Barb., 244, are authorities full and clear upon this point; at least quoad the appellant and Herr Co.
In this case, the fact that there were other co-lienors besides the appellant, cannot change the principle. The bill drawn by the appellant and accepted by Herr Co., was not a substitute agreement for the lien, but the conditional acceptance of another mode of payment by which other co-encumbrancers could not be prejudiced, but might in fact have been greatly benefited. It simply postponed the payment of the debt until default in the payment of the bill. Upon his failure to collect his debt in that way, the appellant, within the time prescribed, had a right to resort to his original lien.
A bill of exchange or other security, which is not maturable until more than three months from the completion of the work, whether paid or not at its maturity, might be regarded as a waiver of the lien, because the party after that period, would have no right under the statute to assert it. Here the bill was drawn, matured, dishonered and the lien *255 asserted within the three months prescribed by the act of February, 2nd, 1853, for the assertion of such a lien.
Interlocutory decree of November 26th, 1859, reversed with costs to the appellant, and cause remanded to the circuit court for further proceedings to be had therein according to the principles herein settled.
DECREE REVERSED.