Parker v. Williams

77 Me. 418 | Me. | 1885

Walton, J.

This is an action to secure a laborer’s lien on logs. It is before the law court on a statement of facts found and reported by a referee. The Lewiston Steam Mill company appears as claimant of the logs, and objects to a judgment against them for several reasons.

1. It is claimed that the plaintiff has no lien, because it is not alleged in the writ that the logs were, or were supposed to be, logs of the claimant, or that the owner was unknown. We think such an allegation is not necessary. The writ must show that the suit is brought to enforce the lien ; but the statute giving a lien on logs expressly declares that all the other forms and proceedings therein shall be the same as in ordinary actions of assumpsit. E. S., c. 91, § 42.

2. It is insisted that the attachment was invalid, because the officer went to a pile of logs containing three million, and undertook to attach six hundred thousand, without selecting or separating the portion attached from those which were not attached. It is a sufficient answer to this objection to say that there is no evidence that the officer undertook to attach a quantity less than the whole. The referee has found as a fact that all the logs were attached. True, the officer in his return, estimated the logs attached at six hundred thousand; but the fact is that he attached the whole pile, and the only error was one of judgment in estimating the amount in the pile. Such an error will not invalidate an attachment.

3. It is next insisted, if the whole pile was attached, that the attachment was invalid, because it included logs on which the plaintiff had performed no labor. It is true that more logs were-attached than those upon which the plaintiff had performed labor. But this was because the Steam Mill company had so intermingled the logs on which the plaintiff had labored with other logs, all being marked alike, that the former could not be distinguished from the latter; and in such a case, it is not only the right, but. it is the duty of the officer to attach the whole. It is conceded that such is the law when the intermingling is carelessly or fraudulently done. And we think it is equally true that such is the-law when, without the consent of the plaintiff, the intermingling-has been designedly done. So held in Spofford v. True, 33 Maine, 283, where the question was ably argued by counsel and’: fully considered by the court.

4. It is next claimed that if there was a valid attachment, 'it has been lost, because the officer did not take and retain possession of the logs, nor legally record his attachment. It is not denied that the officer recorded his attachment, but it is ■denied that he recorded it in the right place. It is claimed that it should have been recorded in the oldest adjoining town, instead of the plantation where the attachment was made. We think the attachment was properly recorded. Attachments made in towns are to be there recorded. E. S., c. 81, § 26. But the word " town, ” when used in a public statute, includes ■cities and plantations, unless otherwise expressed or implied. E. S., c. 1, § 6. Eule 17. We do not think it is otherwise ■expressed or implied in the statute providing for the recording •of attachments. On the contrary, it seems to us that the same reasons exist for having attachments made in plantations there recorded, when the plantation is organized and has a clerk’s ■office in which they can be recorded, as exist for having them :recorded in the towns in which they are made. True, another provision in the same statute declares that when an attachment :is made in an " unincorporated place, ” it shall be recorded in the oldest adjoining town in the county. But we do not think an ■ organized plantation which has a clerk and other plantation ■officers, is an " unincorporated place, ” within the meaning of •this statute. We think it refers to places in which there is no ■ clerk or clerk’s office in which attachments can be filed or recorded. Eangely Plantation is not such a "place. ” It is an ■organized plantation, having a clerk and other plantation officers, ■and we think attachments there made should be there recorded. ‘The attachment in this case was there made, (the referee •expressly so finds,) and it was there recorded; and it is the ■opinion of the court that it was properly recorded. Consequently, it is of no importance whether the officer took and retained ■possession of the logs attached or not; for the attachment, being "legally recorded, would be valid without such possession. Still, 'it is a fact that the officer did take possession of the logs, (such possession as he could and the nature of the property would ¡permit,) and, through the agency of a keeper, retained it, till he was wrongfully deprived of it by the steam mill company. Such a dispossession of an officer does not dissolve an attachment. He may pursue the property and retake it by a writ of replevin, or he may maintain trespass or trover for its value. Lovejoy v. Hutchins, 23 Maine, 272; Brownell v. Manchester, 1 Pick. 232.

It is the opinion of the court that, upon the whole case as reported by the referee, the plaintiff is entitled to recover of the defendants, Williams and Parker, the sum of sixty-three dollars and thirty-one cents; and that he is entitled to a judgment against the logs attached on his writ, with costs, as awarded by the referee.

Judgment for plaintiff' against Williams and Parker, and against the logs attached on his writ, sixty-three dollars and thirty-one cents with costs, as awarded by the referee.

Peters, C. J., Virgin, Libbey, Emery and Haskell, JJ., concurred.