Benjamin F. Perkins' Administrators v. Wilson

Marvel, J.,

delivered the opinion of the Court.

In this case exceptions were filed, and on a previous occasion the Court heard argument on the. motion to strike off those exceptions ; but it having been established in this Court that exceptions to the plaintiff’s statement of claim may be filed in a scire facias upon mechanics’ lien upon the ground that the plaintiff had not complied with the requirements of the statute, we denied the motion ; and it is now upon the exceptions themselves that we are to pass.

The first and second exceptions allege that the bill of particulars contains items, which are set out in the exceptions, which are not properly the subject of a mechanics’ lien, and ask that those items be stricken from the reeord.

While it has been admitted by the counsel for the plaintiff that some of the items in the bill of particulars are not proper, yet We do not think this the proper time to pass upon them, but that they should be disposed of when evidence is offered at the trial, as was decided by this Court in the case of McCartney vs. Buck.

The third exception is that there is such a joinder and confusion in the statement and bill of particulars, of items properly chargeable, with items not properly chargeable, that it vitiates the whole, and, therefore, the writ should be quashed.

If there were lienable and non-lienable claims in the bill of particulars so intermingled as to be inseparable, as contended by the defence, it might be ground for sustaining the exceptions and granting the motion to strike off the claim; but it does not so appear to us. The items are separate and distinct and cannot be said to be so mingled and intermingled as to be inseparable, and we, therefore, do not think that this exception can be sustained.

The remaining exceptions go to errors in the bill of particulars and the affidavit, which, it is alleged, does not comply with the. provisions of the statute prescribing what is to be the statement filed in the case. Upon examination of the statement we are of opinion that the plaintiff has complied with the requirements of the statute; and, therefore, the motion is denied.