2.
By the common law material men have a lien on a foreign ship for
supplies of materials furnished for such ship, which may be recovered in
the admiralty. 9 Wheat. 409. But they have no lien for furnishing
materials for repairs of domestic ships. Wheat. 438.
3.
In several of the states, laws have been enacted giving material men a
lien on houses and other buildings when they have furnished materials
for constructing the same.
MATERIALITY. That which is important; that which is not merely of form but of substance.
2.
When a bill for discovery has been filed, for example, the defendant
must answer every material fact which is charged in the bill, and the
test in these cases seems to be that when, if the defendant should
answer in the affirmative, his answer would be of use to the plaintiff,
the answer would be mate-rial, and it must be made. 4 Price, R. 364; 13
Price, R. 291; 2 Y. & J. 385.
3.
In order to convict a witness of a perjury, it is requisite to prove
that the matter he swore to was material to the question then depending.
Vide 3 Chit. Pr. 233; 3 Dowl. 104; 10 Bing. 340; Perjury.
MATERIALS. Everything of which anything is made.
2.
When materials are furnished to a workman he is bound to use them
according to his contract, as a tailor is bound to employ the cloth I
furnish him with, to make me a coat that shall fit me, for if he so make
it that I cannot wear it, it is not a proper employment of the
materials. But if the undertaker use ordinary skill and care, he will
not be responsible, although the mate-rials may be injured; as, if a gem
be delivered to a jeweler, and it is broken without any unskilfulness,
negligence or rashness of the artisan, he will not be liable. Poth.
Louage, n. 428.
3.
The workman is to use ordinary diligence in the care of the materials
entrusted with him, or to exercise that caution which a prudent man
takes of his own affairs, and he is also bound to preserve them from any
unexpected danger to which they may be exposed. 1 Gow. R. 30; 1 Camp.
138.
4.
When there is no special contract between the parties, and the
materials perish while in the possession of the workman or undertaker,
without his default, either by inevitable casualty, by internal defect,
by superior force, by robbery or by any peril not guarded against by
ordinary diligence, he is not responsible. This is the case only when
the material belongs to the em-ployer and the workman only undertakes to
put his work upon it. But a distinction must be observed in the case
when the employer has engaged a workman to make him an article out of
his own materials, for in that case the employer has no property in it,
until the work be completed, and the article be deli-vered to him; if,
in the mean time, the thing perishes, it is the loss of the workman, who
is wholly its owner, according to the maxim res perit domino. In the
former case the employer is the owner; in the latter the workman; in the
first case it is a bailment, in the second a sale of the thing in
futuro. Domat. B. 1, t. 4, 7, n. 3; Id. B. 1, t. 4, 8, n. 10.
5.
Another distinction must be made in the case when the thing given by
the employer was to become the property of the workman, and an article
was to be made out of similar materials, and before its completion it
perished. In this case the title to the thing having passed to the
workman, the loss must be his. 1 Blackf. 353; 7 Cowen, 752, 756, note;
21 Wend. 85; 3 Mason, 478; Dig. 19, 2, 31; 1 Bouv. Inst. 1006-7.
6.
In some of the states by their laws persons who furnish materials for
the construction of a building, have a lien against such building for
the payment of the value of such materials. See Lien of Mechanics.
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