plates, in consideration of being allowed to do the owner's printing for an indefinite time, has no lien on the plates on account of repairs and alterations, when, after several years, the owner withdraws the printing from him, since such an agreement waives the right to a lien. 181

DIVISION III.

ENFORCEMENT OF ARTISANS' LIENS.

At Common Law.

§ 784. At common law a lien on a chattel for work and materials gave no right to sell the chattel to enforce the lien.182 Accordingly, there was no adequate method of foreclosing the lien, although it has been held that a common-law lien on lumber and shingles manufactured from logs supplied for that purpose may be enforced in equity.183 Sometimes the lien was asserted as a defense to a suit brought by the owner to recover the property or damages for its conversion.18* And a common-law lien on a ship has been held enforceable in admiralty.185

Under Statutes.

785. In several of the states, statutes have been passed provid ing methods of foreclosing mechanics' liens on personalty, though these methods differ somewhat in the different states. Under a statute giving justices of the peace exclusive jurisdiction of suits to enforce such liens, the jurisdiction is not affected by the amount of the lien debt.186 The affidavit for the enforcement of a laborer's lien under the Georgia act must allege that the work was done by the plaintiff claiming such lien.187 Such an affidavit, which sets out the contract, its execution, the demand of payment, and its refusal, and that 12 months have not expired since the completion of the contract, is

181 Stickney v. Allen, 10 Gray (Mass.) 352.

182 Doane v. Russell, 3 Gray (Mass.) 382.

183 Arians v. Brickley, 26 N. W. 188, 65 Wis. 26, citing 4 Kent, Comm. 643. 184 Curtis v. Jones, 3 Denio (N. Y.) 590; Martin v. Hawthorn, 57 N. W. 87, 3 N. D. 412.

185 The Marion, Fed. Cas. No. 9,087, 1 Story, 68; The B. F. Woolsey, 7 Fed. 116; The Two Marys, 10 Fed. 919, 16 Fed. 699.

186 Busfield v. Wheeler, 14 Allen (Mass.) 139. 187 Hoyt v. Glenn, 54 Ga. 571.

sufficient; 188 and an affidavit alleging demand of the debt on the day it fell due sufficiently shows demand after maturity.189 Under the New York statute, to authorize a warrant of seizure in a suit to foreclose a lien upon a chattel, the affidavit need not state, as the statute requires in the case of warrants of attachment, that the claim is due over and above all counterclaims known.190 In a suit to foreclose a lien arising under a statute which provided that every person performing work in, with, about, or upon any threshing machine should have a lien on it for the value of his services, it was held that a petition in intervention, alleging that the intervener was the owner of the machine, and that the defendants who employed the lien claimant were not the intervener's agents, was demurrable, the actual ownership of the machine being immaterial.19 For the same reason it has

been held that on the trial of a suit to foreclose a laborer's lien on personalty evidence that the title to the property which is the product of his labor is in another than the person with whom he contracted to do the work is inadmissible.192

§ 786. When a suit is brought to enforce a lien on slate, under the Maine statute, it must be shown affirmatively that the attachment was made within 30 days next after the slate arrived at the port of shipment.193 And in Louisiana the holder of labor tickets payable to bearer, issued by the owner of a shingle mill to its employés in place of money, cannot, on the insolvency of the mill owner, claim a privilege on the shingles on hand at the time of the assignment, in the absence of evidence that the original holders of the tickets performed labor in the manufacture of the shingles in question.194 In Maine, a judgment in rem against the property attached, in an action to enforce a lien for labor on granite, will not be rendered where defendant is the general owner of the property, and made the contract for the labor, and no general notice has been given of the suit. The reason given is that, if the defendant is the only person interested in the prop

188 Moody v. Travis, 76 Ga. 832.

189 Favors v. Johnson, 4 S. E. 925, 79 Ga. 553.

190 Blake v. Crowley, 44 Hun (N. Y.) 344.

191 Chuch v. Garrison, 16 Pac. 885, 75 Cal. 199.

192 Moody v. Travis, 76 Ga. 832.

193 Union Slate Co. v. Tilton, 73 Me. 207.

194 McLane v. Creditors, 16 South. 764, 47 La. Ann. 134.

MECH.LIENS-52

(817)

erty attached, there is no necessity for judgment in rem; if he is not the only person so interested, no valid judgment in rem can be rendered till all persons so interested have become parties to the suit, or had notice so to do.195 Where the suit to enforce a lien on personalty is in the form of an action of assumpsit except for the allegation in the declaration that it is brought to enforce a lien, the suit may be maintained in personam, even though the lien is held invalid; 196 but where the suit is brought against a purchaser of the property, who has not assumed the lien debt, it is error to render personal judgment against him.197

195 Martin v. Darling, 3 Atl. 118, 78 Me. 78.

196 Union Slate Co. v. Tilton, 73 Me. 207.

197 Ferguson Lumber Co. v. Low (Ark.) 17 S. W. 879.

(818)

CHAPTER XIX.

LUMBERMEN'S LIENS.

DIVISION I. WHO ENTITLED TO LIEN.

787. Origin of Lumbermen's Liens.

788. Construction of Statutes.

789. Contractors.

790. Other Lien Claimants.

DIVISION II. SERVICES FOR WHICH LIEN IS GIVEN.

DIVISION III.

PROPERTY SUBJECT TO LIEN.

§ 798. Logs and Lumber.

799. On One Man's Logs for Work Done on Another's.

800. On Products Manufactured from Logs.

DIVISION IV. Loss AND DISCHARGE OF LIEN.

DIVISION V. PROCEEDINGS TO ENFORCE LIEN-Cont'd.

§ 825-826. Attachment.

827-828. Trial.

829-830. Judgment.

831. Execution.

2

DIVISION I. WHO ENTITLED TO LIEN.

Origin of Lumbermen's Liens.

§ 787. In several states of the Union the lumbering industry is of great importance, and the claims of laborers engaged in that work have given rise to statutes creating and regulating lumbermen's liens. As we have seen,1 there may be a common-law lien on lumber or timber as well as on anything else, but as possession is essential to common-law liens, and as most of the work done on logs and lumber is done by persons who have no exclusive possession, it has been felt by the legislatures that the common-law lien was inadequate to secure properly the wages of the lumbermen. Accordingly in the timber states there are statutory lumbermen's liens, which differ from the common-law lien in not requiring possession, as well as in other particulars, and which, although similar in their general scope, differ from one another in some details. An act declaring that the provisions of a previous act giving a lien for supplies furnished for cutting and driving logs in the counties named therein shall be in force. in Lincoln county is not void for uncertainty. But where a new county is created out of parts of four old counties, in three of which a log-lien law is in force, a provision in the act creating the new county that such county shall be "subject to the general laws established for county government" is not sufficient to extend the log-lien law to the new county. And a clause that "no liens for supplies shall be had under this act except in the counties of Oconto and Douglas" is insufficient to create a lien for supplies in such counties.

1 See ante, § 764.

2 See ante, § 761.

3 There can be no common-law lien on logs in favor of one hired to cut them, since his possession is not exclusive. Fitzgerald v. Elliott, 29 Atl. 346, 162 Pa. St. 118. See post, § 792.

4 Garland v. Hickey, 43 N. W. 832, 75 Wis. 178.

Shevlin v. Whelen, 41 Wis. 88.

• Abraham v. Agnew, 53 N. W. 504, 83 Wis. 246.