Davis v. Church

1 Watts & Serg. 240

• Court: Supreme Court of Pennsylvania
• Decided: May 15, 1841
• Status: Published

Opinion

Per Ctjriam. —

The registry of a mechanic’s lien is no more a record than the registry of a mortgage is a record ; and the plea of nul tiel record was consequently a nullity. A judgment overruling it, therefore, could not, for that cause, be erroneous. Had there been a variance between the registry and the scire facias, the defendant might, perhaps, have demurred for it, but there was in truth no variance. It was necessary to have living parties on the record, and when Davis died it was proper to bring in his administrator. The amendment of the docket entry might, if necessary, be sustained as an amendment at the common law which is not a subject of error; but there was in truth no substantial variance which required amendment. On the death of Crist, the claim, with its remedy, survived to his partner Church, who might register it and sue for it in his own name. Indeed he could not do otherwise, for the action of a surviving partner is his own, and a count for what was at first a partnership demand, may be joined with another for the surviving partner’s separate cause of action. Any discrepance in this respect, therefore, was immate rial: and it is difficult to see why the paper did not create a lien, or why it ought not to have been given in evidence.

Judgment affirmed.