The opinion of the court was delivered, March 10th 1870, by
Agnew, J.The 23d section of the Act of 16th June 1836, relating to mechanics’ liens, was intended to furnish the owner of the building against which a claim has been filed the means of compelling the claimant to establish his lien or of blotting it from the record. So long as the claim remains of record for the sum which the claimant chooses to place there as an encumbrance on the owner’s title, it restrains alienation, and affects his credit. There may be no actual lien, or the debt may have been paid, or largely reduced; and yet the whole claim may be permitted to stand for an indefinite time, without a scire facias issued upon it. Therefore the 23d section provides that the owner may apply by petition to the court to compel the claimant to proceed on his claim, and on the return of the rule the case may proceed as if a scire facias had been issued, served and returned. The owner is evidently an actor in the proceeding and is entitled to a trial to determine whether his property shall remain charged with the claim. To permit the claimant to suffer a nonsuit, or to go out of court without the payment of the costs he has put upon the owner, would evidently defeat the purpose of the' 23d section in one case, and do injustice to the owner in the other.
In this case on the same day and after the claimant had been ordered to proceed on his claim according to the 23d section, the claimant moved to strike off the lien filed by him. At the same time the defendant’s attorney agreed that the plaintiff might amend his claim in any respect that he deemed it to be imperfect, *76and at any time within twenty days. The court then refused the motion to strike off, and this refusal is the subject of this certiorari. It does not appear that the plaintiff made any offer to pay the costs he had put upon the case. Whether this was the reason, or some other equally good, why the court refused leave to strike off the lien, we are not informed. It certainly was sufficient. -The matter was, under the circumstances, one of discretion. The consequence of this refusal to strike off is that the case is still pending in the court below without a final judgment, and the certiorari must be quashed.
Writ quashed.