The complaint is, I think, defective, in not' averring that the materials were furnished and the labor was performed at or before the time when the notice was filed by which a lien was sought to be created. Under a former act for the protection of mechanics, &c., passed in 1844, a contractor was permitted to acquire a lien by filing a notice, &c., within twenty days after the making of his contract; but that law was repealed by the act of 1851, which now only provides for a lien to be gained by filing a notice, &c., “ after the performance' of the labor or the furnishing of the materials.”
The defect in the complaint is, that it does not show that a lien has been created which binds the building, &c., for the sum claimed. By this I do not mean to express any opinion whether it should appear that, at the time the notice is filed, *643the amount claimed was both due and payable, but only that it must appear that the labor and materials had been then furnished and performed; for without that, it does not appear that any lien was created by filing the notice.
These remarks, however, do not apply to the claim for eleven dollars and eighty-eight cents, furnished on the 15th day of July, 1854. The stone for which this was claimed is averred to have .been furnished before the notice was filed, and as to that there appears to be a valid lien.
It is, however, objected, that if a lien "appear by the complaint to only cover a claim of less than one hundred dollars, this court has no jurisdiction.
I do not so understand the law. The jurisdiction of this court is general, under the statute in question, as well as under the laws regulating its jurisdiction. The limitation in the present statute is a limitation of the right to proceed in the inferior courts.
The claimant may foreclose in the Common Pleas, or, provided the amount claimed do not exceed $100, in a justice’s court, &c. The proviso is annexed to the jurisdiction of the latter court only.
A foreclosure under this law is, in this respect, on the. same footing as other actions. The jurisdiction of the inferior courts is not exclusive, but only, within certain limits, concurrent. Doubtless, under the extended jurisdiction of the Marine Court, a claim to the amount of $500 may be fore closed there; but their jurisdiction, if that be so, is by no means exclusive.
The plaintiffs will proceed here at the peril of paying their own costs, unless they amend their complaint, which they should be permitted to do on paying the costs of the demurrer.
But as this demurrer is general, going to the whole complaint, I am compelled to overrule it, although I might, had it been addressed to those parts of the complaint which are defective, have sustained it. As to all except the claim for $11 88, the complaint fails" to state a cause of action.
*644Nevertheless, as the demurrer is general, it must be overruled, with leave to the defendant to withdraw the demurrer on the usual terms.
Ordered accordingly.