delivered the opinion of the Court—Terry, J., concurring.
Thе first section of the act above referred to, gives a lien to certain parties upon cеrtain property, under certain circumstancеs ; and the third section requires the party, if a sub-contrаctor, to file his account and notice of intention to hold a lien on the premises, in the recorder’s office, within thirty days after the completion оf the building, and within five days thereafter to serve a copy of the account upon the owner; and by sеction fifth, the lien created by the act attaches at the time the work was commenced. In this cаse, the defendant had paid the contractor the sum of two hundred dollars, before notice was given him, but after the work was commenced. The Court below held this payment good, and only gave judgment for the remainder.
The first question that might arise under thе pleadings and evidence, is, whether this payment, under the circumstances, would defeat the right of plаintiff to recovery for the full amount of his claim, not, hоwever, exceeding the sum of three hundred and fifty dollars. But, as the plaintiff does not appeal from the judgment of the District Court, and as his counsel only ask for thе affirmance of the judgment, it is unnecessary to decide that point.
The only question we shall consider, regards the rights of creditors to attach the debt due from the owner to the contractor before notice of the claim of the sub-contractor. Thе question is one between different creditors of thе contractor, and involves simply the rights of priority, аs between them. It does not matter with the owner whethеr he pays one or the other, as he is only compelled to pay the debt once.
The lien of the mechanic, artisan, and material man, is more equitable and more favored in law, because these parties have, at least in part, created the very property upon which the lien аttaches, while the general creditors of the сontractor have not done so, and, therefоre, have no special claim to protection. The rights of the latter must be postponed, аnd await the enforcement of the prior lien. In thе present case, the justice of the peаce, upon receiving the answer of the defеndant, should either have discharged him from all liability under thе garnishment, or postponed his decision until the claim of the sub-contractor could have been enforced, and then any remainder in the hands of the оwner would have been justly subject to the claim of thе other creditor.
We can see no error in the judgment of the Court below, and think the same should be affirmed.