No. 23.

#### Benjamin F. Coleman, plaintiff in error, *vs.*Williamson M. Freeman and Edward Barnard, defendants in error.

[1,] Where a statute creates a specific lien, in favour of masons and carpenters, on buildings erected by them, and also gives them a *specific remedy*for the enforcement of such lien, a court of equity has no jurisdiction to enforce it, unless there be some impediment or difficulty charged to exist, which would render the remedy given by the statute unavailable.

In Equity, Bill and demurrer. Tried before Judge Alexander, in Muscogee Superior Court. May Term, 1847. N

This was a bill in equity, brought by the plaintiff in error, against the defendants in error, in Muscogee Superior Court, returnable to May Term, 1847.

The complainant alleges by bis bill, that in 1846, at the instance and request of said Williamson M. Freeman, the complainant, as a mason, entered into a contract with said Freeman, for the laying of brick in the construction of a bouse, and also for plastering, and furnishing materials for finishing and completing the same. That afterwards, in pursuance of the said contract, the said Freeman being in possession of the premises upon which said work was to be done and performed, the said lot being in the city of Columbus, and distinguished in the plan of said city as lot number 195, on Broad Street; the complainant did perform the work on said *138premises, as a mason, in constructing said house, and* in furnishing materials for finishing the same, to the value of over one thousand dollars;- a hill of particulars of the work done,- and. materials furnished, is appended to the hill, with prayer of reference to the same. That, after the completion of the work specified, and the furnishing of materials- as aforesaid, he entered,- and caused to he recorded, in the clerk’s office of the Superior Court of the said county of Muscogee, his said claims thereon,-in terms of the statute in such cases made and provided; to which claim so recorded, he prays leave of reference as often as- necessary.

That after the completion ofsaid work, and furnishing materials as aforesaid, the defendant Freeman, being still possessed of said premises, sold and transferred,,the possession of said premises to Edward Barnard the other defendant in error, who entered thereon, and is now in the occupation of the same. And *that the said*Barnard, at the time of, and before he purchased said premises as aforesaid, had notice of the complainant’s claim, and knew that the saíne was due and unpaid, and also- that the same had been recorded in proper time, in the proper office, according to the provisions of law; and having such notice as aforesaid, of said facts,- the said Barnard required and caused the said Freeman to give' him an indemnity against the said claim of the complainant, and that said Barnard is now in possession, after the said indemnity so given, or has reduced the same to cash or its equivalent. That the' said Freeman is entirely insolvent, and complainant can only secure the demand due to him as aforesaid,-by having his said lien enforced by the sale ofsaid premises.

The bill then prays, that the defendants may account with' the complainant, and that said premises may be sold for the purpose of satisfying the said complainant’s claim and enforcing his- lien on the same, and for further relief’ &c.-

At the return term of this hill, the defendants, by their counsel, filed a general demurrer, alleging that, from all that appeared from the said bill, the complainant had an ample, complete and adequate- remedy in a court of law, and for that cause should not be further entertained ; and for further cause alleges, that the bill o-f complaint set forth no lien, there’ being no exhibit of the' same in- or to the’ said bill.

At the said term, Judge Alexander presiding, the bill and demurrer came' on- to- be argued and- determined-; whereupon, after *139argument, the Court below sustained the demurrer aud dismissed ■the bill, and the complainant by his counsel excepted, and, assigns .the said decision for error.

Johnson 5s Williams, for plaintiff in error.

This is afoill filed by plaintiff. It alleges that the plaintiff is a ■master mason of Muscogee; that, ,as such, he made a contract to do certain work for Freeman, which he performed ; that he duly entered his lien under the statute; that there is a certain amount due ; that, after the work was performed, Barnard took from Freeman the premises, with notice of the 'lien, and also took indemnity from Freeman; that Freeman moved -to Upson, and ■is insolvent.

The defendant demurred*to the 'bill; the Court sustained the demurrer; the plaintiff excepted and assigns the same for error.

The Court has jurisdiction to enforce the lien. *A. K. Marshall,*535; 1 *Vesey,*416; 1 *Stewart,*566.

The remedy at law is doubtful and difficult. *Hotchk.*1 *Com. L. R.*362; 2 *Stewart,*420; 1 *Ves.*416; 16 *Wendell,*465.

Barnard is a trustee. *See Story.*The legislature prescribed the right, and .did notintend to restrict the remedy. *Hotchkiss,*

Sturgis, for the defendant in error.

*By the Court.*

Warner, J.,

delivering the opinion.

The complainant seeks the assistance of a court of eqdity, to [l,] enforce a lien created in his favour as a mason, and to decree the sale of a house built by him in the city of Columbus, by virtue of his alleged lien created by the act of1834. *Hotchk.*623. This act creates a lien in favour of masons and carpenters who build or repair houses in the city of Columbus, where personalsecurity is not taken, *•“ superior in dignity, and of higher claim, than any other incumbrance*whatever,” provided the requisitions of -the -aqt shall be complied with.

The act also affords the mason or .carpenter having sugIi lien, a *specific remedy*to enforce the same, by levy and sale of the pre. mises.

There was a general demurrer to the complainant’s bill in fho Court below, on the ground, that he bad an ample, adequate and *140complete remedy at law. The Court below sustained the demurrer and dismissed the bill; whereupon the complainant excepted, and now assigns the same for error in this Court.

The complainant sets up a lien created by the act of 1834 in his favour ; that act also gives him a *specific remedy*; no reason is alleged in his bill, why the specific remedy prescribed by the act for the enforcement of his lien, is not adequate and complete; and surely this Court cannot anticipate any obstacle or legal barrier, or difficulty, which may lie in his way, when he has not thought proper to state any. This case comes fully within the principle of the case of *McGough & Crews,*vs. *The Insurance Bank of Columbus and McDougald, 2 Kelly R.*154. In that case the complainants had sued out a summons of garnishment under the statute, and then filed their bill on the equity side of the court, to which there was a demurrer for want of equity. We sustained the demurrer, on the ground that the complainant did not show by his bill a.ny reason why he had not an *adequate remedy*by his common law process of garnishment.

If the complainant in this case had stated any ground of equitable interference, such as that the remedy prescribed by the act could .not be made available on account of any impediment which it would be the peculiar province of a court of equity to remove, or have shown that its assistance was indispensably necessary to enable him to enforce his common law remedy, then he might have been entitled to its aid ; but nothing of the kind is alleged : therefore let the judgment of the Court below, sustaining the demurrer, be affirmed.

Judgment affirmed.