The opinion of the court was delivered, March 16th 1874, by
Sharswood, J.In Lee v. Burke, 16 P. F. Smith 336, upon a scire facias on a mechanic’s claim, when the parties went to trial upon the pleas of “no lien, payment, set-off with leave,” it was held that no question of the sufficiency of the lien could arise on the trial of these issues; that even the plea of “no lien” was necessarily confined to such questions of fact as might invalidate the lien — such as that it was not filed in time; that the work was not done or the materials furnished on the credit of the building; that the plaintiffs had bound themselves to file no claim, or that the building was not such a one as was within the Acts of Assembly. But as to defects on the face of the claim filed, they are not raised by such a plea*. A fortiori is this so, when the only issue is upon the plea of payment. The question as to the sufficiency of the claim can be raised on demurrer or by moving to strike off the lien; but after pleading to the scire facias, it must be considered waived: Lehman v. Thomas, 5 W. & S. 262; Lybrandt v. Eberly, 12 Casey 347; Howell v. Philadelphia, 2 Wright 471.
In The Bank v. Dries, 11 Casey 423, it was decided that an architect employed to make the plan and drawings for a building, and to direct and oversee its erection in accordance therewith, is within the provision of the Mechanics’ Lien Law, and entitled to a lien against the building for his labor. That the value of the services of such an architect might be enhanced by a patent right of which he was the proprietor, can hardly be doubted ; and if a specific agreement is made with him for a certain sum for the use of his patent and his superintendence in putting it up, he is certainly entitled to file a lien for that amount and to recover it upon proceeding by scire facias.
As we have seen that the question of sufficiency of the lien was not involved in the issue of facts presented on the pleading, it could not be the subject of a reservation; and even if the lien was insufficient on its face, no judgment non obstante veredicto could have been properly entered.
This disposes of all the errors assigned, except the fourth, which remains to be considered. The lien was filed against all the right, title and interest of the. St. Clair Coal Company of, in and to all that certain improvement, .machinery and fixtures which are part *389of and together make the erection known as the St. Clair Shaft Colliery; the said colliery having been leased, &c., for mining purposes. The Act of Assembly under which this claim was filed was approved February 17th 1858, Pamph. L. 29, and is entitled “An Act relative to mechanics’ liens in the counties of Luzerne and Schuylkill.” It extends the provisions of the general Act of 1836 “ to all improvements, engines, pumps, machinery, screens and fixtures erected or put up by tenants of leased estates on land of others in the counties of Luzerne and Schuylkill, and to all mechanics, machinists and material-men doing work or furnishing the articles or materials therefor: Provided, That the lien hereby created shall extend only to the interest of the tenant or tenants, lessee or lessees therein, and to the improvements, engines, pumps, machinery, screens a.nd fixtures erected, repaired or put up by the mechanics, machinists, persons or material-men entering liens thereon.” The claim of the plaintiff was for work done in the erection of a patent hoisting and dumping cage, yet the claim filed is against the entire leasehold interest in the colliery. The Act of Assembly gave the plaintiff no such lien. It confines the lien clearly to the interest of the lessees in the improvement and machinery upon which his labor and services were bestowed. Upon an execution on the judgment upon this scire facias, the leasehold interest in the entire colliery could be levied upon and sold. This fatal error in the claim, though not regularly, is substantially assigned. It certainly was not waived as merely formally defective and by going to trial on the issue of payment. In Carey v. Wintersteen, 10 P. F. Smith 395, where the lien was filed against the owners and not the lessees of “ a certain frame engine and shaft-house,” &c., judgment recovered on the scire facias was reversed on that account. For that reason the judgment in this case cannot be sustained. The defendants below were entitled to an affirmative answer to their first point. Judgment reversed.