Walter v. Streeper , 2 Miles 348 ( 1839 )

Per Curiam.—

The act intended to remedy a mischief which at one time existed. A claim on which nothing was due could be filed, operating as a lien to the embarrassment of the owner, who had no means of calling on the claimant to establish his right, if he had any. The act of 1836 intended to make the owner, resorting to the use of its provisions, substantially the actor, and its purpose was to ascertain for his benefit, whether or not the alleged claim was valid. Now if, after the owner has called on the claimant to proceed, who does so, the claimant, at the trial may suffer a nonsuit, the whole purpose of the law would be defeated, fbr it would compel the defendant again to call on the claimant to proceed, who, on another trial, might again suffer a nonsuit, and so the case would never be ended. The judge was right in refusing to permit the plaintiff to suffer a nonsuit, and in directing a verdict to be found for the defendant. See 1 Binn. 444; 5 Mod. 76.

Motion refused, and judgment on the verdict.