| Me. | Jul 1, 1852
The opinion of the Court, Shepley C. J., Wells, Rice, Hathaway and Appleton, J. J., was drawn up by
The plaintiff, owning certain lands, contracted with J. H. Haynes & Co. for cutting and hauling logs and other lumber and for running the same, for all which he has paid them in full, according to the provisions of his contract. The defendant, a deputy sheriff, seized the same on writs in favor of the several plaintiffs in those suits, who claimed a lien thereon for their labor. It is for this seizure this suit is brought.
It has been decided, in Bicknell v. Trickey & al., that in enforcing the lien for labor upon lumber, the proceedings must be regarded strictly in rem, and that by joining such privileged claim with others, the laborer must be considered as having waived his special rights, and as merely standing on an equality with the general creditors of his debtor.
The only questions arising in this case are, in what suits, under which the defendant justifies, has the lien been lost ?
In the suit, Samuel Nash v. J. H. Haynes & Co., are found charges for “ the labor of eight oxen three months and nineteen and half days, at thirty dollars per month, f 112,46, and one ox-sled, to haul loads in the woods, $3.
The Act is entitled an Act giving “ to laborers on lumber a lien thereon.” The lien thus given is “ for the amount stip
In the suit, James Nash v. J. H. Haynes & al., is an item for five days detention, $>5, which makes part of that judgment in favor of the plaintiff. The lien for the rest of the claim is unquestioned. It would seem that the plaintiff, remaining with his employer, ready to render such services as should be required of him, might be viewed as remaining under his contract, and that he ought not to suffer because no special services were required of him. The detention might have been as a matter of prudence on the part of his employer, in the expectation that it might be expedient to continue longer in the work in which they were engaged, or in the anticipation of a rise in the water, which did not occur. If he was detained by his employer, ready to do service for him, but from any unforeseen cause, his labor was not needed, he is certainly entitled to his compensation. That he remained with his employer, that he was rightfully there, and that he is justly entitled to compensation for this as his other time, is conceded by the default in that action. The service in this instance was in remaining with those for whom he was laboring at their instance and for their benefit.
The defendant must be defaulted for the value of the masts sold to pay the judgments in favor of Samuel Nash and Royal F. Nash.