Atwood v. Williams

By § 35, c. 125, B. S., it is provided that any person, who shall perform labor or furnish materials for or on account of any vessel, building or standing on the stocks, or under repairs after having been launched, shall have a lien on such vessel for his wages or materials, until four days after such vessel is launched, or such repairs afterwards have been completed; and may secure the same by attachment on said vessel within that period. This right of lien extends to the employee of a contractor with the owner of the vessel, although the contractor has received Ms pay in full from the owner. And such lien may be secured by the employee by attachment of the vessel in a suit against his employer.

On Facts Agreed. Assumpsit, on a receipt given by defendant to the plaintiff, to keep and re-deliver the brig “John Hathaway,” &c., “ which property the said officer has taken by virtue of a 'writ against Daniel Millett, and to enforce a lien provided for in c. 125, E. S., in favor of Samuel Carter,” &c. Defendant was owner and builder of the brig, and contracted with one David Millett to perform a certain part of the work. This job was performed and Millett paid. Millett hired one Samuel Carter to assist him, but failed to pay him the entire sum due him. To secure the balance dueNhim, Carter commenced an action against Millett and attached the brig within four days after she was launched. The receipt in suit was given to release that attachment. Carter obtained a judgment for his debt, and on his execution demands were duly made upon the officer, upon the plaintiff, who attached the brig, and the defendant. If the action is maintainable, a default to be entered and judgment for debt, costs and interest of the action Carter v. Millett otherwise a nonsuit to be entered. maintained, that as the lien provided for by statute, could only be enforced by attachment, it was limited to those cases only where the claim was against the owner of the property. Any other construction would authorize the Legislature to confiscate any man’s property. Bill of Rights, § § 20, 21. The defendant here had no right to appear in the action against Millett, and his property cannot rightfully, be taken away by force of a judgment to which he was not a party, and could not defend it. That the lien lies only against the owner of the property was apparent from § 37 of c. 125, R. S. Besides, the law prescribes no course by which the lien may be enforced, and in that respect was clearly defective, and was repealed by § 1, c. 159, of Acts of 1850. The credit here was given to Millett, not for or on account of defendant or his vessel. Furthermore, if plaintiff had a lien, it was lost by negligence in not recording the attachment. maintained, that the language of the statute provision, and the object to be accomplished, include such a case as this. That the same question had recently been before the U. S. District Court, and decided according to the plaintiff’s construction, in Purrington v. Hull of New Ship. That the lion must be secured by attachment of the vessel and the suit must be against the person contracted with. Ames v. Swett, 33 Maine, 479. A decision sustaining this construction in an analogous matter was found in Spofford v. True, 33 Maine, 283. The presumption was, that the officer did all that was required of him, and no question on that matter was allowable to defendant.