delivered the opinion of the Court:
The declaration in this case contains two counts, the first of which is framed under sections one and five of the act of 1869, giving a mechanic’s lien to sub-contractors. The allegations show, that plaintiff in error was a contractor under a sub-contractor. The second is the ordinary common count. The defendant demurred to the first count, and filed the general issue to the second. The court sustained the demurrer to the first count, and the cause is still pending upon the second, and the general issue filed thereto. Upon this state of the record the plaintiff brought error to this court.
While we are of opinion that the demurrer was properly-sustained to the first count, on the ground that the statute does not extend to a sub-contraetor of a sub-contractor, yet we can not affirm the judgment. There was no final judgment to which a writ of error will lie.
The writ will, therefore, be dismissed.
Writ of error dismissed.