To entitle a person to a lien upon buildings and land under St. 1855, c. 431, he must “ actually perform labor in erecting, altering or repairing” the buildings, or “furnish materials actually used for the same; ” and must file in the office of the town clerk “ a statement of a just and true account of the amount due him, with all just credits given ; ” but “ no inaccuracy in the statement, in stating the amount due for labor, shall invalidate the proceedings, unless it shall appear that the person filing the certificate has wilfully and knowingly claimed more than is his due.” St. 1855, c. 431, §§ 1, 2, 3.
Tried by these tests, the statement filed by these petitioners, a copy of which is annexed to their petition, is clearly insufficient. In it they claim a lien for the whole amount of the contract, while they distinctly allege that the contract has not been fully performed; and they afford no means of estimating the proportion or the value of the labor which has been “ actually performed,” and the materials which have been “ actually used,” for which alone the statute gives a lien. The excuse for nonperformance, alleged in the petition and certificate, might be sufficient to entitle the petitioners to maintain an action at law or prove a claim in insolvency against the owner of the buildings for the value of such labor and materials; but it cannot justify them in claiming a lien for an entire sum, part of which *103they clearly show that they know to be not yet due. See McClallan v. Smith, 11 Cush. 240.
The case of Parker v. Bell, 7 Gray, 429, is clearly distinguishable from this case. It was there held, that including in the statement a claim for materials, which it was admitted could not be supported, and a claim for the labor of the petitioners’ journeymen, which had not then been adjudged to be untenable, did not show such a wilful overstatement as would defeat the petitioners’ lien for their personal labor; no suggestion being made “ that any of the items in the account contained in the statement filed were in any respect false, or unjustly exaggerated,” and it being “ conceded that the amount in the account was justly due to the petitioners.” See 7 Gray, 433.
Demwrrer sustained.