Doe v. Monson , 33 Me. 430 ( 1851 )

Wells, J.

— By the Act of August 10, 1848, chap. 72, “ any person who shall labor at cutting, hauling or driving logs, masts, spars or other lumber, shall have a lien on all logs and lumber he may aid in cutting, hauling or driving as aforesaid, for the amount stipulated to be paid for his personal services, and actually due. And such lien shall take precedeuce of all other claims except liens reserved by the State of Maine or the Commonwealth of Massachusetts for their own use, and the lien shall continue sixty days after the logs, masts, spars or other lumber subject thereto shall have arrived at their place of destination, previous to being rafted for sale or manufacture.” And “ any person having a lien as aforesaid may secure the same by attachment,” &c.

The persons claiming the lien in this case were employed by Monson, the defendant, and not by the trustee. A lien is a qualified ownership, and, in general, can only be created by the owner, or by some person by him authorized. Hollingsworth v. Dow, 19 Pick. 228. But the language of the Act very clearly shows the intention of the Legislature, to give a lien to all persons, who should perform labor in driving logs, and therefore those, who were employed by the defendant Monson, had a lien upon them.

It appears, that there were logs of other persons driven with those belonging to the trustee. And those persons employed men to perform their portion of the labor; each one such number of men, as was supposed to be equal to his proportion of the timber collected together in one body. The different owners, employing their own men to drive logs, would not be debtors of any but of those by them employed, and the lien could attach to those logs only, which, the men, claiming it, were employed to drive. The men under Monson were not employed to drive the logs of the other owners, but the logs of the trustee. By the statute they are to have a lien for the amount stipulated to be paid, and it must be upon the logs for the driving of which they are to be paid. They were not to be paid for driving the logs of others, but those of the trustee.

The arrangement between Monson and the other owners, was not a contract to drive then logs, but for the men employed by each to unite and drive in common. It did not alter the contracts previously made between the parties, but provided a different mode for the performance of the labor, for the interchange of which, satisfaction was made in the mutual aid rendered. The men employed by Monson have no claim on 'ihe other owners for their services, nor does it appear that he has any claim on them, and consequently there is no lien on their logs, and it must be confined to the logs of the trustee, and cannot be apportioned upon the logs owned by others. If the lien extended to the logs of the several owners, whether those claiming it could insist upon satisfaction out of the logs belonging to one of them, for the whole sum due, it is not necessary to consider.

The lien being an incumbrance upon the property of the trustee, he had a right to discharge the attachment, by which it was secured, and was not bound to wait and allow his property to be sold on execution. The statute does not require him so to do, and it would be exceedingly oppressive on the part of the owners of logs, if they were not permitted to discharge such liens, and relieve their property from the embarrassments and delay incident to attachments and sales.

There are no facts presented by which it can he inferred, that the debts paid were not due. The trustee had no control over the actions brought against Monson, so as to direct the disposition of them, after he had paid the several claims for which they were brought, and his rights cannot be affected by the defaults in those actions.

The exceptions are overruled.