Cutting, J.
This action was instituted for the alleged wrongful conversion of the plaintiff’s property. The defendant justified as an officer, having attached on mesne process and sold on execution the property, in favor of certain individuals, to enforce liens for personal services rendered for one Hiram Crommett, who had sub-contracted with the plaintiffs in those suits to run the lumber. The action was referred, by a rule of court, and the referee has reported in favor of the plaintiffs, unless his findings constitute a legal defence, and two questions, as matters of law, are presented to the court for their determination.
1. “ Is it necessary, in order to enforce the lien for services, that the logs, on which the labor was performed, should be specifically inserted in the writ, as the property to be attached, and the officer therein ordered to attach them, instead of the property of the defendant, as is usual in all writs of attachment ? ”
The lien was.created by the statute of 1848, chap. 72, sec. 1, and is sought to be enforced by sec. 2, which provides that: “Any person having a lien as aforesaid may secure-the same by attachment.”
There is no pretence that the lumber-was-- ever the property of Crommett, the defendant in the original suits, whose goods and estate only the officer in the writs was com[586]*586manded to attach. Suppose those writs had not only directed the officer to attach the goods and estate of the defendant, but for want thereof to take his body; with equal propriety it might be contended that the bodies of the present plaintiffs could have been taken, as that their property could have been attached. The officer had no concern with the averments in the declaration, or with endorsements of an attorney on the writ, when inconsistent with the express commands to him within directed. If a contrary doctrine should prevail, the people could not be said, to be “ secure in their persons and possessions from all unreasonable seizures,” for then meum and teum would become convertible terms, at the will and pleasure of the officer.
What then, it may be asked, would be the laborer’s remedy, inasmuch as his claim can only be enforced when he resorts to the provisions of the statute by a suit and judgment against his employer, to be secured only by an attachment? This question has already been answered in the case of Bicknell v. Trickey, 34 Maine R., 281, where the court say: “ The proceedings under this statute (1848, chap. 72) are therefore to be¿viewed in a double aspect. So far as the debtor is concerned they are in personam, and, as against him, the plaintiff may insert any and all claims which by law can be joined. So far as regards the general owner of the property, and against whom the laborer has no legal claim, when the person with whom he has contracted is other than the owner of the lumber, the proceedings are strictly in rem.”
Now, proceedings in personam authorize, on mesne process, attachment of the property of the defendant to respond the exigency of the writ and satisfy the judgment; whereas, proceedings in rem only authorize the attachment of the thing, and in that particular are in the nature of a libel, and in suits where the defendant is both the debtor and owner of the property on which a lien is attempted to be enforced, ordinarily no difficulty arises in embracing both proceedings in the same process. And the embarrassment has arisen in [587]*587a great measure by an erroneous idea that the remedy of the contractor and his sub-contractor is the same; whereas the former has his security on the goods and estate of his debtor, that is, in personam, as well as on the specific property benefited by his labor, which may be in rem, and after judgment it is optional with the creditor on which species of property he will levy his execution. In such cases an attachment of the debtor’s goods and estate might include the property on which the services were bestowed, without any other specific directions to the officer in the writ, for indeed, such property would belong to the debtor, subject only to the lien. Perhaps when such property has been transferred by the debtor, after the contract, and before the institution of the suit, a specific insertion in the writ would become necessary. But a sub-contractor has no claim against the owner of the property — his claim is only against the property (in rem), and the person and property of his employer (in personam). So that in such suits two classes of respondents become interested, viz: the contracting debtor and the thing specifically attached, in which the former may appear and defend against the claim on his personami property, and the latter, by its owner, against all lien claims.
But heretofore, and until the enactment of the statute of 1855, chap. 144, the res could not be legally represented in court. This act provides, that “ In all suits brought to enforce the lien given by the act to which this is additional, such notice shall be given, to the owners of the lumber, as the court shall order, and the owner may come into court and defend such suit.” The construction of this statute raises the second question presented in the report, viz: “ Is it necessary, in order to preserve the lien on logs so attached, that the log owners should have due and seasonable notice of the pendency of the suit, as prescribed by law?”
We have seen that, prior to this statute, a judgment might be recovered on a lien claim in an action wherein the interest of a third party had not been represented; and inasmuch [588]*588as the execution might be satisfied by the property of the judgment debtor without resort to that of such third party, no injury might be sustained by him. But whenever his property has been taken, such third party would not be precluded by such judgment, (it being inter alios acta,) from having his day in court, and in a suit against the officer he has heretofore been permitted to show that such judgment did not embrace a lien claim to its full extent, and to controvert any facts tending to establish the lien. Thus suits were unnecessarily multiplied, and an innocent officer not unfrequently subjected to expensive litigation in settling the rights of parties, which might as well have been settled in the original suit. Hence the necessity of the statute of 1855, making it imperative on the party attaching property owned by a third person, to give such owner due notice of the pendency of the suit, and an opportunity to defend against it. Having appeared and defended, or having had the notice and neglected, the lien judgment is conclusive upon him and his property, to which the lien was alleged to have attached.
The act, then, of 1848, and the additional act of 1855, creating a lien on certain lumber, and prescribing the mode of perfecting and enforcing it, have materially changed the law of lien on such property. Since those enactments, so far as it regards the party other than the defendant, the suit is substantially a proceeding in rem, and is in the nature of a libel against the lumber of a third party, who may legally come into court and “ defend such suit.” What suit? Certainly the suit on which his logs have been seized.
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Cutting, J.
This action was instituted for the alleged wrongful conversion of the plaintiff’s property. The defendant justified as an officer, having attached on mesne process and sold on execution the property, in favor of certain individuals, to enforce liens for personal services rendered for one Hiram Crommett, who had sub-contracted with the plaintiffs in those suits to run the lumber. The action was referred, by a rule of court, and the referee has reported in favor of the plaintiffs, unless his findings constitute a legal defence, and two questions, as matters of law, are presented to the court for their determination.
1. “ Is it necessary, in order to enforce the lien for services, that the logs, on which the labor was performed, should be specifically inserted in the writ, as the property to be attached, and the officer therein ordered to attach them, instead of the property of the defendant, as is usual in all writs of attachment ? ”
The lien was.created by the statute of 1848, chap. 72, sec. 1, and is sought to be enforced by sec. 2, which provides that: “Any person having a lien as aforesaid may secure-the same by attachment.”
There is no pretence that the lumber-was-- ever the property of Crommett, the defendant in the original suits, whose goods and estate only the officer in the writs was com[586]*586manded to attach. Suppose those writs had not only directed the officer to attach the goods and estate of the defendant, but for want thereof to take his body; with equal propriety it might be contended that the bodies of the present plaintiffs could have been taken, as that their property could have been attached. The officer had no concern with the averments in the declaration, or with endorsements of an attorney on the writ, when inconsistent with the express commands to him within directed. If a contrary doctrine should prevail, the people could not be said, to be “ secure in their persons and possessions from all unreasonable seizures,” for then meum and teum would become convertible terms, at the will and pleasure of the officer.
What then, it may be asked, would be the laborer’s remedy, inasmuch as his claim can only be enforced when he resorts to the provisions of the statute by a suit and judgment against his employer, to be secured only by an attachment? This question has already been answered in the case of Bicknell v. Trickey, 34 Maine R., 281, where the court say: “ The proceedings under this statute (1848, chap. 72) are therefore to be¿viewed in a double aspect. So far as the debtor is concerned they are in personam, and, as against him, the plaintiff may insert any and all claims which by law can be joined. So far as regards the general owner of the property, and against whom the laborer has no legal claim, when the person with whom he has contracted is other than the owner of the lumber, the proceedings are strictly in rem.”
Now, proceedings in personam authorize, on mesne process, attachment of the property of the defendant to respond the exigency of the writ and satisfy the judgment; whereas, proceedings in rem only authorize the attachment of the thing, and in that particular are in the nature of a libel, and in suits where the defendant is both the debtor and owner of the property on which a lien is attempted to be enforced, ordinarily no difficulty arises in embracing both proceedings in the same process. And the embarrassment has arisen in [587]*587a great measure by an erroneous idea that the remedy of the contractor and his sub-contractor is the same; whereas the former has his security on the goods and estate of his debtor, that is, in personam, as well as on the specific property benefited by his labor, which may be in rem, and after judgment it is optional with the creditor on which species of property he will levy his execution. In such cases an attachment of the debtor’s goods and estate might include the property on which the services were bestowed, without any other specific directions to the officer in the writ, for indeed, such property would belong to the debtor, subject only to the lien. Perhaps when such property has been transferred by the debtor, after the contract, and before the institution of the suit, a specific insertion in the writ would become necessary. But a sub-contractor has no claim against the owner of the property — his claim is only against the property (in rem), and the person and property of his employer (in personam). So that in such suits two classes of respondents become interested, viz: the contracting debtor and the thing specifically attached, in which the former may appear and defend against the claim on his personami property, and the latter, by its owner, against all lien claims.
But heretofore, and until the enactment of the statute of 1855, chap. 144, the res could not be legally represented in court. This act provides, that “ In all suits brought to enforce the lien given by the act to which this is additional, such notice shall be given, to the owners of the lumber, as the court shall order, and the owner may come into court and defend such suit.” The construction of this statute raises the second question presented in the report, viz: “ Is it necessary, in order to preserve the lien on logs so attached, that the log owners should have due and seasonable notice of the pendency of the suit, as prescribed by law?”
We have seen that, prior to this statute, a judgment might be recovered on a lien claim in an action wherein the interest of a third party had not been represented; and inasmuch [588]*588as the execution might be satisfied by the property of the judgment debtor without resort to that of such third party, no injury might be sustained by him. But whenever his property has been taken, such third party would not be precluded by such judgment, (it being inter alios acta,) from having his day in court, and in a suit against the officer he has heretofore been permitted to show that such judgment did not embrace a lien claim to its full extent, and to controvert any facts tending to establish the lien. Thus suits were unnecessarily multiplied, and an innocent officer not unfrequently subjected to expensive litigation in settling the rights of parties, which might as well have been settled in the original suit. Hence the necessity of the statute of 1855, making it imperative on the party attaching property owned by a third person, to give such owner due notice of the pendency of the suit, and an opportunity to defend against it. Having appeared and defended, or having had the notice and neglected, the lien judgment is conclusive upon him and his property, to which the lien was alleged to have attached.
The act, then, of 1848, and the additional act of 1855, creating a lien on certain lumber, and prescribing the mode of perfecting and enforcing it, have materially changed the law of lien on such property. Since those enactments, so far as it regards the party other than the defendant, the suit is substantially a proceeding in rem, and is in the nature of a libel against the lumber of a third party, who may legally come into court and “ defend such suit.” What suit? Certainly the suit on which his logs have been seized. How defend ? Most assuredly, like any other adverse party, by controverting every material allegation in the plaintiff’s writ, such as personal services performed on the lumber specifically described, and so as readily to be identified, and any other averments which may be necessary to bring the lien claim within the statute; for, in the language of the court in the case before cited, “ the identity of claim and of property, must co-exist, and must be traceable till the fruits of the judgment have been obtained by a satisfaction of the [589]*589execution. The identity of the property must be established, else the lien cannot attach; the labor must be shown to have been done upon the specific property seized, for provision is made for nothing else.” Such facts, therefore, it is incumbent on the plaintiff both to allege and prove before he can recover a judgment, the execution of which may be satisfied by the sale of the property claimed. If not from the declaration in the writ, how is the court to be informed that it is a suit in which it is necessary for the owners to be summoned, and what order to issue and on whom to be served ? Whatever it may be essential for the plaintiff to allege and prove in order to perfect his lien judgment, it will be competent for the owner to controvert and disprove. And, before the statute of 1855, it may be questionable how far a party had. the constitutional privilege of seizing and confiscating tho property of another, in violation of private rights, without an opportunity to be heard. Marsh v. Flint, 27 Maine R., 479.
But in such a suit, since there may be two parties interested in the defence, viz: the debtor and the log owner, a question may arise as to the mode of conducting it. When that question is duly presented it may require an answer. In the present case the plaintiffs, who were such owners, had no opportunity to appear; the statute of 1855 was violated, and consequently the pretended lien was vacated, and the judgments recovered under sueh circumstances, and the executions issued thereon, were no protection to the officer. The questions proposed to the court being answered in the affirmative, judgment must be rendered on the award in favor of the plaintiffs.