Snyder v. Crothers

Decided November 2, 1874

Supreme Court of Pennsylvania · decided 1874-11-02

242, October Term, 1874. Snyder built an oil tank for defendant and filed a statement of his claim, which, however, was not verified by affidavit. Crothers took a rule to quash the lion for this reason. The rule was made absolute and Snyder took this writ of error. A. M. Brown and Thos. S. Wilson, Esqs., for plaintiff argued that the provision of the act is merely directory. Donahoo vs. Scott, 2 Jones 45 ; Calhoun vs. Mahon, 2 Harris 56 ; Lybrandtvs.

Decided 1874-11-02

¶1On November 2, 1874, the judgment was affirmed in the following opinion :

Per Curiam.

¶2It is made the duty of the lien claimant by the act of April 8th, 1868, P. Laws 753, to file a statement of his claim or demand verified by affidavit.

¶3Clearly the affidavit is as essential to comply with the law, as the statement itself, unless waived by the subsequent conduct of the defendant. But of such a waiver there is no evidence. The plea expressly sets up the want of the affidavit as a special defense. The question before us is not upon the sufficiency of the affidavit of defense, but of the statement as the means of protecting the lien. We cannot, therefore, raise a constructive waiver out of the affidavit of defence, when the party has already expressly pleaded the defect. Judgment affirmed.