delivered the opinion of the Court—Terry, J., concurring.
The first section of the act above referred to, gives a lien to certain parties upon certain property, under certain circumstances ; and the third section requires the party, if a sub-contractor, 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 of the building, and within five days thereafter to serve a copy of the account upon the owner; and by section fifth, the lien created by the act attaches at the time the work was commenced. In this case, 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 the pleadings and evidence, is, whether this payment, under the circumstances, would defeat the right of plaintiff to recovery for the full amount of his claim, not, however, 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 the 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. The question is one between different creditors of the contractor, and involves simply the rights of priority, as between them. It does not matter with the owner whether 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 attaches, while the general creditors of the contractor have not done so, and, therefore, have no special claim to protection. The rights of the latter must be postponed, and await the enforcement of the prior lien. In the present case, the justice of the peace, upon receiving the answer of the defendant, should either have discharged him from all liability under the 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 owner would have been justly subject to the claim of the other creditor.
We can see no error in the judgment of the Court below, and think the same should be affirmed.