Marsh v. Bower

15 A. 920, 1 Monag. 247, 1888 Pa. LEXIS 746

• Court: Supreme Court of Pennsylvania
• Decided: November 5, 1888
• Docket: No. 79
• Status: Published

Opinion

Williams, J.,

The affidavit of defense set up no answer to the plaintiff’s claim on the merits. It rested wholly on the failure of the material man to give the notice of his intention to rely upon his lien as a security for his bill, which is provided for in the 2d section of the Act of 1887. We have held that Act to be unconstitutional, and, therefore, of no effect whatever, in the case of the Titusville Iron Works v. The Keystone Oil Co., decided at the present term. [Reported in 122 Pa. 627.] It is unnecessary to repeat the reasons there given. Whether Bower & Co. were within the provisions of the 2d section or not is a question of no consequence, for the Act falls as a whole. No part of it is in force, and our mechanic’s lien laws stand precisely as though it had never been passed. The court below was right, therefore, in holding the affidavit to be insufficient, and in entering judgment non obstante, and the judgment is now affirmed.

Cf. Barrett’s Appeal, 116 Pa. 486, for construction of art. hi, \ 6, of the constitution. See, also, the next case.