delivered the opinion of this court:

The scire facias, in this case, was issued on the 23rd of .December 1854, for the purpose of enforcing a claim of the *110appellees under the Mechanics’ Lien Law of 1838, ch. 205, and its supplements. The claim was for lumber furnished to Jacob P. Kridler, at different periods, from the 10th of May to the 9th of November 1854. It appears from the record, that on the 18th of September 1854, Kridler gave to the appellees his note for $824.57, at four months, in settlement of his account to that date, and which included all the items in the lien account to the date of the note. If it were conceded that the appellees have a lien which might be enforced, it is clear that to the extent which their claim is covered by the note, the piesent writ of scire facias cannot be maintained, it having been issued prematurely.

The Act of 1845, ch. 287, sec. 5, after providing that a lien is not waived by granting a credit or receiving notes or other securities, unless the same be received as payment, or the lien be expressly waived; provides, “that the sole effect thereof shall be to prevent the issuing of a scire facias or other proceedings, to enforce the said lien, until the expiration of the credit agreed upon.” Under this Act the appellees could not proceed till after the maturity of the note which was not till the 21st of January 1855. In answer to this view two grounds have been urged on the part of the appellees.

“1st. That the granting of credit, or receiving a note, applies to the case when such credit is given, and such note is received bona fide;” in this case it is alleged the credit was obtained fraudulently.

“2nd. That the delay, secured by the Act of Assembly, is a benefit conferred only upon the party to whom the credit is given, or from whom the note is received, and does not enure to the benefit of any third party unconnected with the credit. ’ ’

The record furnishes no evidence, whatever, that any fraud was perpetrated, or intended, by Kridler in the settlement made on the 18th of September. It is proved that about the last of November following, he absconded from the city of Baltimore; but it nowhere appears that he contemplated such *111a step two months before; or that any of the causes then existed, which afterwards induced him to run away and fly from justice. There is no evidence to impeach the bona Jides of the settlement of the 18th of September; it was made in conformity with his long established course of dealing with the appellees. Nor is there any force in the other ground taken by the appellees; the words of the Act expressly deny to the lienor, his remedy by scire facias, till the expiration of the credit, and there is no reason why the defence should not be as available to any one whose property is sought tobe charged, as to the party with whom the contract is made. If materials be furnished to a builder, or contractor on a credit, it could not be pretended that the claim could be enforced by scire facias against the property of the owner, before the credit had expired. In the judgment of this court the eighth prayer of the appellant ought to have been granted, which upon the facts therein stated, denied to the appellees the right to recover in this proceeding, any of the items in their lien claim filed, which were included in the note and receipt given in evidence.

The account exhibited by the appellees contains some charges, for lumber furnished after the 18th of September, which are not included in the note; but as to them a similar objection is presented. The evidence shows that according to the usual and customary course of dealing between Kridler and the appellees, he was entitled to a credit thereon, till the 1st of January ensuing. See Salmon Falls Manufacturing Co. vs. Goddard, 14 Howard, 456.

It seems to us, therefore, that as to the items of claim involved in this appeal, not included in the note, the action was prematurely broughc. This point was not distinctly presented in the trial below, but it has been suggested in the argument in this court, and it is apparent from the record that it would be fatal to any recovery by the appellees in this case upon procedendo, even if, in other respects, the claim were free from objection. Upon this state of the record, it is the duty of this court to reverse the judgment below without *112procedendo, leaving to the appellees to assert their claim by future proceedings, if they shall be so advised.

Upon the other questions presented by the bill of exceptions, and argued at the bar, it is unnecessary to express any opinion.

Judgment reversed without procedendo.