Ames v. Dyer , 41 Me. 397 ( 1856 )

Appleton, J.

“Alien,” says Shaw, C. J., in Sumner v. Hamlet, 12 Pick. 76, “is the right to the custody of the property of another, with a right to hold and retain the same against the general owner as indemnity or for security for some debt or obligation.” By the civil law a lien, jus retentions, is defined to be “ a right to detain a thing until a demand is satisfied.” Lindley, Thebaut, § 232. It may result from the rules of the common law; it may arise from the contract of parties; or it may be created by statute. But whatever its origin, it rests upon the idea that the party having it has the right to retain the thing itself, whatever it may be, as by keeping or carriage, till the services in relation thereto, by work and labor, or by materials furnished, shall have been paid and satisfied by the general owner of the property upon which the lien exists.

By R. S., c. 125, § 35, it is enacted, that “any ship carpenter, caulker, blacksmith, joiner, or other person, who shall perform labor or furnish materials for or on account of any vessel building or standing on the stocks, or under repair after having been launched, shall have a lien for his wages or materials,” &c..

The plaintiffs claim to recover the value of their labor in making a set of moulds by which the ship Oliver Jordan, upon which the lien is claimed, was constructed, and for materials used in making the same. The question presented for determination is whether, by the statute, they have such lien.

The moulds for a vessel cannot be regarded as a part of the materials with which it is constructed. They are used in its building as patterns in a foundry, or the last for a shoe. They may be indispensable for the construction of a vessel, as are the tools of the carpenter or joiner, or the ground upon which the keel is laid, and the ship finished, but they do not enter into its structure. The materials of which the moulds are made do not belong to the vessel, nor does the title to them pass to its purchaser. They may be again used, if another vessel of the same tonnage and form is to be built; or they may be modified for another of different size and dimensions. “ The whole theory of a lien for labor and materials,” says Sandford, J., in Phillips v. Wright, 5 Sandf. 342, “ rests upon the basis, that such labor and materials have entered into and contributed to the production or equipment of the thing upon which the lien is impressed.” Subsequently he adds, “ can it be said that materials are furnished for and towards building a ship, when no part of them enters into or becomes a part of the ship ?”

In Swett & al. v. James, 2 R. I., 270, it was regarded as necessary to create a lien, that the materials furnished should be incorporated in and become a part of the building upon which it was claimed to exist.

The plan of a house, the model of a ship, the moulds by which its timbers are to be hewed, may be necessary and even indispensable, but they do not enter into any structure so as to be a part of its materials, and cannot be regarded as within the provision of the statute by which a lien is given in certain cases to the laborer and the material man.

The writ is to be amended by striking out the claim for a lien, and the defendant to be defaulted.

Tenney, C. J., and Rice, Cutting, and May, J. J., concurred.