The following dissenting opinion was by
Wells J.— The plaintiff by c. 125, >§> 37 and 38, Rev. :Stat. had a lien upon the house of the defendant’s testator, for work and labor performed by him.
*523The estate of the testator has been rendered insolvent, and a commission of insolvency has issued, and it is contended by the defendant, that the insolvency in such case puts an end to the lien.
The statute secures the benefit of such lien by an attachment of the property, upon which the labor is performed, in an action against the debtor.
The statute declares, that the person performing the labor ££ shall have a lien to secure the payment of the same,” and ££ sucli person may secure the benefit of such lien by an attachment.”
The first acts containing provisions similar to the one now in force, were passed on the 25th and 29t.h of March, ] 837.
The law of 1821 provided for the dissolution of attachments by the death and insolvency of the debtor.
If the Legislature had intended, that the lien should cease upon the death and insolvency of the debtor, one would suppose that such provision would have been inserted in the acts passed in 1837, or in the Revised Statutes, when these several subjects underwent a revision.
The lien is created before the attachment. It is a vested interest in the property, upon which the labor is performed, and the attachment is given as a mode of perfecting such interest. The lien is created under the law by the labor and the materials. And the laborer or material man has a property in the house, upon which he has bestowed his labor, or for the repair or erection of which, he has furnished materials.
Those liens, which are dissolved by death and insolvency are created by the attachment only. Such creditors have no other priority than merely causing the property of their debtors to be attached. Their debts are not more meritorious than those of other creditors.
But the lien under consideration, is as much a vested interest in the subject, to which it is attached, as a mortgage would, be.
Suppose the Legislature had provided that mortgagees of personal property should perfect their title by suit and at-*524t'achment, within 90 days, after' the time of payment had elapsed, would a commission of insolvency defeat their claim ? There would appear to be as much reason for affirming that it would, as in the present case to say that the lien is destroyed by such an event.
The death of the mortgager or pledger does not defeat the pledge, nor should, it have that effect upon the lien of the plaintiff. The very object of the lien is to protect the holder of it against insolvency. The necessity of it is increased where the debtor dies insolvent. Nor is it just, that the labor and materials, which are not the property of the. deceased insolvent, should be devoted to the payment of his debts generally, or to the support of his wife and children.
But it is said that no provision is made for rendering judgment against the administrators or executors of insolvent estates, in such cases. When the Legislature declares a right to exist, it confers all necessary means, by which such right can be established. The Legislature declares the lien to exist, (i shall have a lien to secure the payment of the same,” and has pointed out the course to be pursued to render the lien effectual. . It is by an action at law, and it would necessarily follow that an appropriate judgment could be rendered in such action.
Under the late bankrupt law of the United States, liens are secured, arising from attachments, though no mode for so doing is pointed out in the law itself.
Although the bankrupt is discharged from all his debts, and is not ordinarily to be subjected to have executions against him, yet to preserve the lien, and to give effect to the provisions of the act, it is necessary that there should be a special judgment ■and execution, so as to enable the creditor to levy upon the property attached.
In form it is a judgment in personam, in substance a judgment in rem, binding the specific property attached. Davenport et al. v. Tilton, 10 Metc. 320. ■ The plaintiff can have such judgment and execution as will enable him to secure the lien upon the property attached.
*525I cannot bring my mind to the conclusion that it was the purpose of the Legislature to annul the lien upon the death of the debtor and a commission of insolvency, nor that the law is so defective, as not to furnish a remedy to the plaintiff.