Opinion by

Petition filed by Langworthy ngainst Dorsey for a mechanc’s lien, to secure payment of a note given for the lumber furnished by the plaintiff for •defendant’s building. Plea general issue, and also that the mote was given for an illegal consideration, to-wit: for lumber, &c., furnished for the building of a nine pin alley. Plaintiff, in his replication, alleged that in furnishing the lumber he did not know that it was to be used for such illegal purpose as a nine pin alley, &c. Trial by jury waived, and cause submitted to the court. Judgment for plaintiff and the lien granted.

It is now contended that this judgment, under the evidence in the bill of exceptions, is erroneous. This evidence clearly proves that the lumber was used for a nine pin alley and gambling house, and that said Langworthy knew- that it was to be used for a nine pin alley. A mere nine pin *342alley of itselffis not unlawful. The evidence does not show that Langworthy knew the lumber was to be used for a gaming house, or any other unlawful purpose. To make good the defence it should appear that the plaintiff knew at the time of the sale that the lumber was to- be put to an unlawful purpose, and that he sol'd it with the intention of having it used for such unlawful purpose. Chitty on Con. 659; Story on Con. § 226.

The evidence does not show Langworthy to have been pa/rticeps criminis -in any unlawful transaction connected with the sale, and -therefore,, we think the court below decided correctly.

Judgment affirmed.