¶1Baldwin, J. concurring.
¶2*621This is an action to enforce a lien on a building for materials furnished the contractor, and used in the construction of the building.
¶3The finding of the referee, which, as the evidence is conflicting, is conclusive as to the facts, shows that before notice of the lien was filed, or notice given to the owner of the building, he had fully paid to the contractor all that was due him upon the contract.
¶4The Statute of 1856 intended that the liens of sub-contractors and material men, should be satisfied by the owner of the building, out of moneys due from him to the contractor, and the 3d Section authorizes him, upon being served with proper notice, “ to withhold from the contractor, out of the first money due, or to become due, to him, under the contract, a sufficient sum to cover the lien claimed by such sub-contractor, journeyman, or other person, performing labor or furnishing materials, until the validity of the lien shall be determined by the proper tribunals, if it be contested.” It was not the design of the Legislature to make him responsible, except upon notice, or to a greater extent, than the sum due to the contractor at the date of the notice. The statute furnishes to material men and sub-contractors, cheap, easy, and expeditious, means, of attaching in the hands of the builder any money due from him to the contractor, but does not prevent him from agreeing to pay for the work as soon as it is completed, or from complying with such agreement when made.
¶5Whether a different rule was established by the Act of 1858, it is not necessary to inquire, as the construction of that Act was not involved in this case.
¶6Judgment affirmed.