Pearsons v. Tincker , 36 Me. 384 ( 1853 )

Appleton, J. —

The lien given by R. S. c. 125, 35, is only for the benefit of the person performing labor upon or furnishing materials for a vessel. The plaintiff might have enforced this lien for his own but not for the labor of another. The note given for the labor of Mudgett by Snowman, the defendant, in the suit on which the vessel was attached, cannot be regarded as labor performed or materials furnished by the plaintiff. The claim in either case is persbnal, and must fee enforced in the name of the party to whom it accrued. Mudgett could neither directly nor indirectly assign his lien so that it could be enforced in the name of an assignee. The plaintiff by uniting in onev suit his claim for labor and the note given him by Snowman, and taking judgment for both demands, has lost the lien to which he was otherwise entitled. Bicknell v. Trickey, 34 Maine, 273.

The vessel attached in the suit against Snowman, was receipted tor by Mr. Woodman, and was permitted to go to sea, without the jurisdiction of this State. When judgment was entered up in that suit and execution issued thereon, the present defendant had ceased to be sheriff, and Mr. Redman had been appointed his successor. No demand was ever made on the defendant, or on any deputy of his, within thirty days after the rendition of judgment. The plaintiff’s execution against Snowman, is not shown within that time to have been placed in the hands of an officer, for the purpose of preserving the lien created by attachment. Nothing whatsoever has been done to fix the liability of the defendant. Bicknell v. Hill, 33 Maine, 297.

The fact, that the vessel was out of the jurisdiction of the ‘State, does not relieve the plaintiff from the necessity of seasonably placing his execution in the hands of ah officer, by whom a demand might be made upon the deputy sheriff, who made the attachment in the original writ. In Phillips v. Bridge, 11 Mass. 242, the execution was duly delivered to an officer, by whom a demand was made on the attaching officer. In that case the liability of the officer, who made the attachment, is made to depend on the plaintiff’s diligence “in obtaining their judgment and execution and delivering the latter to the officer, who made the attachment, or to any other deputy of the same sheriff, or to the sheriff himself.” In no case has an officer been held, when the execution has remained during the thirty days, next after judgment, in the office of the clerk, or in the hands of the plaintiff or his attorney.

The fact, that Mr. Redman, the sheriff of Hancock county, called on Mr. Woodman for the vessel, in consequence of the directions of Wardwell, the defendants’ deputy, to him, and that Mr. Woodman said “ he should take no advantage of Redman’s not having the execution in his hands,” cannot affect the rights of this defendant. Mr. Woodman could make any waiver he might judge expedient for himself, but he was in no way authorized to compromise the interests of the sheriff. If the vessel had been delivered to the defendant or to his deputy, it must have been surrendered to the owners, for no officer within thirty days from judgment had the execution in his hands or could legally demand and receive the property attached. Plaintiff nonsuit.

Shepley, C. J., and Tenney, Rice and Hathaway J. J., concurred.