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Mechanical jurisprudence.—No. 4
TIIE
,‘!, 1
E’iL4NKLIN
JdllR~;AI,
ANI) FOR TIIE
~~ECIIANICAL
.JURISl’RUJHPEE.-No.
RY I’. On
A. UROWNE,
FRdNKLIX
I”“,LN*L.
4.
ESQ.
Mcchnnics’ Liens.
J11the last number of these essays, I commenced
the consideration tV11a.t is the nature of the preference given ? and examirlctl the operation of a previous nzortgage; I Shall now enquire .Ys ~ygwd~~ II sd9eprent iKo~tgage. 12111;;1. If the Mortgage is given cfftar &e commencement of the /&/~/j~~,rr, the mechanics and material men have the prior claitn. All the: debts contracted for or in the erecting and constructing a building, without regard to the particular period of time that the work tvas d~c, or materials were Ibund, have in point of preference rela1ictu back to tlle,dq of the commancemenl of the hihfing. The words to the conmrelrceare ‘6 before any Iren, which originated subsequent ~i(prt~of t,he said house or other building :” hence it becomes important to enquire what is the commencement of a b?diMllg. ILUIC :L The recornnaencemeizt of a house after a slight interval of ~q~~~ion of buildin*, is not a commencement withm the meaning of‘ tllis act, and t11c1-2 T OI’C it’ t11txowx’r of an z~~lfin,is?~edhouse sell it, and takes a mortgage recorded, the meli,r the l>ut.clrirse money, which is immediately chiulich xtl material men who arc soon after employed to jnish tlic huil:lil:g. shall be preferred to the mortgage. ‘I‘hat I!IC above decision comes within the btter of law, no one could dcu\ . hr the building was ori,ginul$/ commenced before the judgrncnt. lim it was contended that accortlmg to the true meaning and spirit of‘ liic act, the commencement of’ the completion of the house was, as f;i,. ;is resuected the lien creditors concerned in the completion, the c-c,,l,,rr,zcr;nctlt of tile br~ilrling. And of this opinion was Yates, Justice, ill the cast of The Aurerican Fire Insurance Company ~1.Pringle: but ‘l’ilghmon, C. J. and Brcckenridge, J. were of a different opinion. 21 S. and IL. 138. 11~11: 3. Uut if instead of proceeding @stated in the above rule, the house had been finished sulbcientl for particular purposes, as for instance, for a warehouse or a store, g ut not for a dwellin house, and it time it had bad remained in that situation for ears, during wbrc 3 been mortgaged, and afterwards it Kad been completely finished, in that cnsc the mortgage would have been prsferred to the lien credrtors concerned in the limshing. The above rule may be fairly collected from the opinion given by the C. J. in the American Fire Insurance Company z, Pringle.* 01‘tht: cluestion,
* I’c~+u~psit quay be expected commcuccment of the building.
of me to point out what particular act is the
This may not be so easily done as is anticipated. For instance, suppose fi-ames, sashes, doors, floor-boards, kc. are prepared for a building at the carpenter’s shop; that at a subsequent day the cellar or fowldation is dug, and at another day, still later, the first stone is laid. When,
A!41ZI;IlICAN MECHANICS
MAGAZINE,
295
two funds. at is a prin+e of equity that,a pers& having two funds, out of which to rccelve his debt, shall not, by his choice, disappoint another having but o)lC; and if, &x&ore, a rportgage Creditor has two or nlore premises mortgag’ed to Itim to secure the payment of his debt, and upon on? of thelrt 1necha111cs and imtermt tnen erect ;1 builJir,gr the r;ourt will oblige hits to t:tke his c!ebt out of the.pren~ises plot bufi; upon, if suflirient, ilr~c.ileavy the other for the lien cret1itol.s. ‘rhis was the case of the itlympic ‘i’hentr.e, where the gable end of an old building was torn ~IO\VII, EW_Ia buildnlg ww erccteti adjoining ori that side, and opening ther$o, on another lot, the Court dlrectetl two morigages wbrch were given on the two lots txevionsty to ttle cnmmencement of the builtlinw, to be p&l out of the proceeds of tilt: jut lot, leaving the value of-Pt If: new building to the lien creditors. As regards CLPrezioug Judg7mnt. Rule 1. %be same rule, as in the mortgage case, will hold, with re. spcct to a judgment. obtained prior to the commcmenmt of the tJLiit& ing, even though the builder at the time of the contraction of Ihc debt?; to the mechanics and material nq had only an equitable iilteres$, iI1 the leg+ estate afterwards. the -lot, and acquired It was contended that the Judgment in the first instance was a lien on the eq2GtubZe interest only, and not on the legal estate which came to the builder after the lien of the mechanics had attached, and there13ut the court considered this arfore that they l~ad the preference. gunkent in the same light as the Supreme Court did the similar one in J_,gIe ZJ.Ducornb, and gave the ireference to the judgment creditor. See the cast of John~Vandrvender, 2d Browne’s rep. 303. Rule 2. But where the builder acquired both legal and equitable IThere
then7 ye
f ask, did this building commence, within the meaning of the act of Assembly? ‘rhe bee;inning to make the frames, Src. at the shop is likrd{y the commenceThe digging the foundation or cellar is not the commenccmeut oi a building. ment of the erection of the building, but a preparation thereto; the laying of the &St foumlation stm is the act which has alwavs been commemorated as And hencg it is that in many instances, the commencement of a building. But neither a consideration of it is attended with much form and ceremony. the literal meaning, nor a recurrence to thk ceremonies used gn public ocxxIn sions, removes our di&ulties nor solves the question we have_supposcd. \Vc ardor to do these. we nnlst have a recurrence to the Act of Assembly. must cndeavour to give such a construction to the act as will work I;O itl~ju+ tice OF inconvenience to .any one. This will be very diilicult. Justice to the community at large seems to require that the b&ding should be s:iui to bc commenced at the time of some act publicly done upon tile premises, that by viewing the same they may know that the bz&Iin~ hus cotnmeaced, and may be put up& their guard against the mechanics’ liens. But on the other hand, if the preference is to those jl&ments and rnortg:l~~+ onl_y which oSginated after tlus public act on the pre&es, the lumber nwctmt who previouslpfurnlsiles lumber at the carpenter’s shop, when there H :~a no mortgage or judgment, may be deprived of the benefit of his claim by a murt~~ge or judgment given between the time of his so furnishing his nrutcrials a:~i tile pubiic act done on the premises as aforesaid; yet the supreme court h:r\. e &xi&d that for lumber, furnished at the carpenter’s shop, :i llclr 15crcntcc!. Y
296
THE FRAXICLIN hURNA1,
A~uJ~
estate after the c!ate $ a ju$ment against him, and proceecied erect a buildmg, m doing whrch, he contracted debts, to a-,eckan$ and material men, .they. were preferred to such judgment cre,jitor, The distrnctrqn III this case,arrses upon the rule of law that a ,judg ment does not bmd c@ey acqecz~edpy.wrf. This will be found to be decnled In the same case of John ~~~~~1~. vender, 2d Hrowne’s rep. 304. Another lot, let to another person on terms similar to those ahove recited, was assigned to Vandevendcr after the date of the jutlt,_ ments : and the court gave the proceeds of that house and lot to & lien creditors.
ON INERTIA. ,T~J--I ah aware of haviclg S:titl more in my former COl~~l~~l~nicati~,lI Inrrtia, than can easily be established; and should it toru out little hyperbolical, still JnUly Of Jny namesakes, RU>OJJ~your rc&rr;, may be benefitted by learning how near my assertion comes to tke truth. Ilad 11said, that the gravitating force of matter is, of nccesjify, 01>poscdby an equal degree of force, under all circumstances, n-IretIm ;I body be at rest or falliog, and that when no other force is preseat, ItterPicl is always ut home to perfortn the ofice, and in goneral, that $orce is always opposed byforce of equal energy; I presume I shoultl have been consistent with the established theory of inertia : but tlw 1 question whcthcr any one would have been senously disposed to COIIin vucuo, suppo~*ted by frovc~rt.it. Nut I assert, that, cc 6oL?yJfnlhzg 3271f&g-, is stzill as truly sul)l30rtcd~rona fulling as when resting qm on
a
:, rrhtc.
suppose an unresisf.ing body to be subjected to the action of a eon&nt force, indcfinitcly small, the consequence would be unifornr motion, and infinite velocity; the same would be the result, suppositlg the body to be infiuenced by two opposing constant forces, of uncc@ energy; fix the less would annul so much of the greater, am1 the surplus would be a single force; but here we have a single force acting upon nothing, to which I object. It appears then that less than a constant Force? even the slightc;st possible impulse, would comruuuicate to an unresrsting body, infinite velocity j and if me consider that the force would only have to run away with itself, it will be found abundantly suflicient. Ilow can motion be produced at all, unless the moviug force hF greater than the resistance, is a question that naturally sug$!sts itso& P consider the question fairly answered, by asking how Teat can ha produced upon the same principle, by friction, &c. without. atlmitting the argument advanced by some? that movin bodies incline to r& The difficulty 1 conceive to arose from con Bountling the terms porvor and force, when they evidently mean very different, things ; for esam* plc, power is sometimes used to express simple force, as in fulWa
,‘!, 1
E’iL4NKLIN
JdllR~;AI,
ANI) FOR TIIE
~~ECIIANICAL
.JURISl’RUJHPEE.-No.
RY I’. On
A. UROWNE,
FRdNKLIX
I”“,LN*L.
4.
ESQ.
Mcchnnics’ Liens.
J11the last number of these essays, I commenced
the consideration tV11a.t is the nature of the preference given ? and examirlctl the operation of a previous nzortgage; I Shall now enquire .Ys ~ygwd~~ II sd9eprent iKo~tgage. 12111;;1. If the Mortgage is given cfftar &e commencement of the /&/~/j~~,rr, the mechanics and material men have the prior claitn. All the: debts contracted for or in the erecting and constructing a building, without regard to the particular period of time that the work tvas d~c, or materials were Ibund, have in point of preference rela1ictu back to tlle,dq of the commancemenl of the hihfing. The words to the conmrelrceare ‘6 before any Iren, which originated subsequent ~i(prt~of t,he said house or other building :” hence it becomes important to enquire what is the commencement of a b?diMllg. ILUIC :L The recornnaencemeizt of a house after a slight interval of ~q~~~ion of buildin*, is not a commencement withm the meaning of‘ tllis act, and t11c1-2 T OI’C it’ t11txowx’r of an z~~lfin,is?~edhouse sell it, and takes a mortgage recorded, the meli,r the l>ut.clrirse money, which is immediately chiulich xtl material men who arc soon after employed to jnish tlic huil:lil:g. shall be preferred to the mortgage. ‘I‘hat I!IC above decision comes within the btter of law, no one could dcu\ . hr the building was ori,ginul$/ commenced before the judgrncnt. lim it was contended that accortlmg to the true meaning and spirit of‘ liic act, the commencement of’ the completion of the house was, as f;i,. ;is resuected the lien creditors concerned in the completion, the c-c,,l,,rr,zcr;nctlt of tile br~ilrling. And of this opinion was Yates, Justice, ill the cast of The Aurerican Fire Insurance Company ~1.Pringle: but ‘l’ilghmon, C. J. and Brcckenridge, J. were of a different opinion. 21 S. and IL. 138. 11~11: 3. Uut if instead of proceeding @stated in the above rule, the house had been finished sulbcientl for particular purposes, as for instance, for a warehouse or a store, g ut not for a dwellin house, and it time it had bad remained in that situation for ears, during wbrc 3 been mortgaged, and afterwards it Kad been completely finished, in that cnsc the mortgage would have been prsferred to the lien credrtors concerned in the limshing. The above rule may be fairly collected from the opinion given by the C. J. in the American Fire Insurance Company z, Pringle.* 01‘tht: cluestion,
* I’c~+u~psit quay be expected commcuccment of the building.
of me to point out what particular act is the
This may not be so easily done as is anticipated. For instance, suppose fi-ames, sashes, doors, floor-boards, kc. are prepared for a building at the carpenter’s shop; that at a subsequent day the cellar or fowldation is dug, and at another day, still later, the first stone is laid. When,
A!41ZI;IlICAN MECHANICS
MAGAZINE,
295
two funds. at is a prin+e of equity that,a pers& having two funds, out of which to rccelve his debt, shall not, by his choice, disappoint another having but o)lC; and if, &x&ore, a rportgage Creditor has two or nlore premises mortgag’ed to Itim to secure the payment of his debt, and upon on? of thelrt 1necha111cs and imtermt tnen erect ;1 builJir,gr the r;ourt will oblige hits to t:tke his c!ebt out of the.pren~ises plot bufi; upon, if suflirient, ilr~c.ileavy the other for the lien cret1itol.s. ‘rhis was the case of the itlympic ‘i’hentr.e, where the gable end of an old building was torn ~IO\VII, EW_Ia buildnlg ww erccteti adjoining ori that side, and opening ther$o, on another lot, the Court dlrectetl two morigages wbrch were given on the two lots txevionsty to ttle cnmmencement of the builtlinw, to be p&l out of the proceeds of tilt: jut lot, leaving the value of-Pt If: new building to the lien creditors. As regards CLPrezioug Judg7mnt. Rule 1. %be same rule, as in the mortgage case, will hold, with re. spcct to a judgment. obtained prior to the commcmenmt of the tJLiit& ing, even though the builder at the time of the contraction of Ihc debt?; to the mechanics and material nq had only an equitable iilteres$, iI1 the leg+ estate afterwards. the -lot, and acquired It was contended that the Judgment in the first instance was a lien on the eq2GtubZe interest only, and not on the legal estate which came to the builder after the lien of the mechanics had attached, and there13ut the court considered this arfore that they l~ad the preference. gunkent in the same light as the Supreme Court did the similar one in J_,gIe ZJ.Ducornb, and gave the ireference to the judgment creditor. See the cast of John~Vandrvender, 2d Browne’s rep. 303. Rule 2. But where the builder acquired both legal and equitable IThere
then7 ye
f ask, did this building commence, within the meaning of the act of Assembly? ‘rhe bee;inning to make the frames, Src. at the shop is likrd{y the commenceThe digging the foundation or cellar is not the commenccmeut oi a building. ment of the erection of the building, but a preparation thereto; the laying of the &St foumlation stm is the act which has alwavs been commemorated as And hencg it is that in many instances, the commencement of a building. But neither a consideration of it is attended with much form and ceremony. the literal meaning, nor a recurrence to thk ceremonies used gn public ocxxIn sions, removes our di&ulties nor solves the question we have_supposcd. \Vc ardor to do these. we nnlst have a recurrence to the Act of Assembly. must cndeavour to give such a construction to the act as will work I;O itl~ju+ tice OF inconvenience to .any one. This will be very diilicult. Justice to the community at large seems to require that the b&ding should be s:iui to bc commenced at the time of some act publicly done upon tile premises, that by viewing the same they may know that the bz&Iin~ hus cotnmeaced, and may be put up& their guard against the mechanics’ liens. But on the other hand, if the preference is to those jl&ments and rnortg:l~~+ onl_y which oSginated after tlus public act on the pre&es, the lumber nwctmt who previouslpfurnlsiles lumber at the carpenter’s shop, when there H :~a no mortgage or judgment, may be deprived of the benefit of his claim by a murt~~ge or judgment given between the time of his so furnishing his nrutcrials a:~i tile pubiic act done on the premises as aforesaid; yet the supreme court h:r\. e &xi&d that for lumber, furnished at the carpenter’s shop, :i llclr 15crcntcc!. Y
296
THE FRAXICLIN hURNA1,
A~uJ~
estate after the c!ate $ a ju$ment against him, and proceecied erect a buildmg, m doing whrch, he contracted debts, to a-,eckan$ and material men, .they. were preferred to such judgment cre,jitor, The distrnctrqn III this case,arrses upon the rule of law that a ,judg ment does not bmd c@ey acqecz~edpy.wrf. This will be found to be decnled In the same case of John ~~~~~1~. vender, 2d Hrowne’s rep. 304. Another lot, let to another person on terms similar to those ahove recited, was assigned to Vandevendcr after the date of the jutlt,_ ments : and the court gave the proceeds of that house and lot to & lien creditors.
ON INERTIA. ,T~J--I ah aware of haviclg S:titl more in my former COl~~l~~l~nicati~,lI Inrrtia, than can easily be established; and should it toru out little hyperbolical, still JnUly Of Jny namesakes, RU>OJJ~your rc&rr;, may be benefitted by learning how near my assertion comes to tke truth. Ilad 11said, that the gravitating force of matter is, of nccesjify, 01>poscdby an equal degree of force, under all circumstances, n-IretIm ;I body be at rest or falliog, and that when no other force is preseat, ItterPicl is always ut home to perfortn the ofice, and in goneral, that $orce is always opposed byforce of equal energy; I presume I shoultl have been consistent with the established theory of inertia : but tlw 1 question whcthcr any one would have been senously disposed to COIIin vucuo, suppo~*ted by frovc~rt.it. Nut I assert, that, cc 6oL?yJfnlhzg 3271f&g-, is stzill as truly sul)l30rtcd~rona fulling as when resting qm on
a
:, rrhtc.
suppose an unresisf.ing body to be subjected to the action of a eon&nt force, indcfinitcly small, the consequence would be unifornr motion, and infinite velocity; the same would be the result, suppositlg the body to be infiuenced by two opposing constant forces, of uncc@ energy; fix the less would annul so much of the greater, am1 the surplus would be a single force; but here we have a single force acting upon nothing, to which I object. It appears then that less than a constant Force? even the slightc;st possible impulse, would comruuuicate to an unresrsting body, infinite velocity j and if me consider that the force would only have to run away with itself, it will be found abundantly suflicient. Ilow can motion be produced at all, unless the moviug force hF greater than the resistance, is a question that naturally sug$!sts itso& P consider the question fairly answered, by asking how Teat can ha produced upon the same principle, by friction, &c. without. atlmitting the argument advanced by some? that movin bodies incline to r& The difficulty 1 conceive to arose from con Bountling the terms porvor and force, when they evidently mean very different, things ; for esam* plc, power is sometimes used to express simple force, as in fulWa