— The condition in the conveyance from the plaintiffs to McCriilis, is subsequent; the fee in the land, therefore vested in the grantee on the delivery of the deeds. There has been no re-entry for the forfeiture, on account of the breach of the condition; and so far as our consideration is demanded in this case, we must regard the forfeiture as waived for the present, and the title to remain as it was at the time of the conveyance. 1 Shep. Touchst. 118, and seq.; 4 Kent’s Com. Lecture 56.
The deeds convey the land to the grantee, his heirs and assigns. They give the right to cut timber, with no limita*291tion as to the person who may do it, subject to a lien thereon, ■for the payment of five dollars for every thousand feet cut, board measure. The right to dispose of the timber by the grantee subject to this lien, to be taken off by himself, or by others whom he may employ under a contract, such as that made by him, and James and Alvin Haynes, must be conferred, when the grantee has the power to convey the entire estate by the terms of the deed, subject to the same lien. The case is unlike that of Emerson v. Fiske & al. 6 Greenl. 200, where the title of the land was not intended to be conveyed, and the entire ownership of the timber continued in Emerson, who had given those, under whom the defendants claimed it, the right to cut it exclusively for him.
The timber may be considered as having been lawfully removed from the land, and driven to the boom, by virtue of a contract, which the plaintiffs had fully authorised. At the time of the conveyance, the statute of 1848, chap. 72, was in force. That secured a lien upon all logs, masts, spars, and other lumber, in favor of those who aided in cutting, hauling or driving them for their personal services.
This lien is analogous to liens upon vessels and upon buildings, in favor of laborers, who have been employed in their construction. It takes away none of the rights of the owner, nor the one interested therein, by a lien or otherwise, any further than is necessary for the security of those who are presumed to have added something to its value, equal to the expense, at least, incurred. It is in the power of the owner, who wishes to dispose of such property, to guard against any loss from the lien which may exist afterwards upon it by the authority of the statute, by taking other security for his purchase money, besides retaining an interest in the property itself. The statute in its prospective operation, and in this case it can have no other, is no abridgment of the rights of the citizen, secured to him, by the constitution of the State, in Art 1, sec. 1, of “acquiring, possessing and protecting property.” Tt subjects the property to the payment of debts, which the owner has directly or indirectly caused or authorized, in its *292improvement, under a knowledge, that the property is so charged. In principle it in no respect differs from the lien at common law, in favor of mechanics, who have bestowed labor upon the article which it attaches. The statute provides for its existence in cases where the possession is not supposed to be in the one, to be benefitted by the lien.
It was evidently intended by the legislature, that the lien of laborers was not to be postponed to that of other individuals. Their claim commences immediately upon the performance of services in converting standing trees into logs, masts, spars, and other lumber, where it may be enforced in a manner, which shall be speedy, simple and effectual. The statute protects the laborer in his earnings, without obliging him to follow the property which he has aided in making more valuable, after it has been taken into possession of those persons, who may have attempted to sustain a prior lien; and frees him from exposure to loss, arising from the tardy and uncertain process, of attempting to secure any interest, remaining after such liens have been discharged, when it may have passed from the scene of his labors, and so changed that its identity can no longer be traced. The exception in favor of the Commonwealth of Massachusetts, and the State of Maine, in the statute, confirms this view. The lien, which is preferred to that of the laborers, is what was expected to be proper in the sales of land, for the security of the purchase money. And the statute will not admit of the construction, that there is to be a still farther exception in favor of other grantors, who may attempt to provide the same kind of lien, when the plain language itself, expressly forbids it.
But it is insisted, that the lien under the statute, cannot extend to lumber, to which the one claiming the lien contributed nothing, in cutting, hauling or driving the same. The mischievous results of a more liberal application of the provision, pointed out by counsel in certain cases, are very apparent, and we cannot suppose for a moment that the lumber, which was taken and sold in satisfaction of the debts, in favor of the laborers represented by the defendant, was in each case exclu*293sively that which the creditor aided in cutting and hauling. The case finds, that the logs cut and hauled by the several companies of men, could not be distinguished by the defendant. But in the passage of the logs from the forest to the boom, they were so intermingled that the labors of the distinct companies were not distinguishable. There were no artificial badges upon the several parcels of logs, so that those cut by one company could be separated from those cut by another j and although the logs cut by some of the companies were of different sizes and qualities from those cut by others, it was manifestly a case of the confusion of goods, which may take place in reference to lumber. Hazletine v. Stackwell, 30 Maine 237.
Assuming that the counsel for the plaintiffs are correct in their proposition that the lien of each laborer is confined to the lumber, which he aided in removing from the land, it may be proper to ascertain who are to be regarded in this action as responsible for the intermixture ; and what was the character of the acts, which caused it.
The plaintiffs, their grantee, and those, whom the latter employed to cut, haul and drive the logs, knew constructively at least, that those who should bestow labor upon them in these operations would have a lien thereon for the value of their personal services. They were all affected by that knowledge after the logs were cut and hauled. The men who were employed merely as operatives, had no authority to put thereon their own distinguishing marks, or to interfere in directing the mode in which they should be removed from the landings and driven to the boom. And their claim ought not to be taken away by any of the parties, including the plaintiffs, who were interested in the lumber, by an intermixture, which the laborers had no power to prevent. The plaintiffs conveyed the land, and gave authority for the removal of the timber. Every process in cutting, hauling and driving the logs was in the prosecution of their original intention, ■when they made the conveyance.
They were in their hands, or in the hands of those who *294had been employed by virtue of their contract, through all the different stages of their progress from standing trees, till they were indiscriminately turned into the streams, and the river, and driven to the boom. Every thing done to the timber from the first to the last of these operations, was just what the plaintiffs expected would be done, and in doing which there was no violation of any contract, which had been made with them touching the ultimate object, or the mode by which it was brought about. The logs were constructively in their possession for the purpose of preserving their own lien thereon, subject to the statute lien of the laborers, if the latter existed at the time of the attachments by the defendant’s deputy, and had so been from the time they were cut. Bradeen v. Brooks, 22 Maine, 463.
Is it then for the plaintiffs to claim to hold the logs free from the laborers’ lien ? Before they can do this successfully, would not justice demand, that they should show, that they had done all in their power to preserve it; that it should be proved, that they had stipulated that nothing should take place, which should impair it, instead of claiming a discharge of it, a forfeiture of the rights, under the statute, by at least their own want of care ? If the lien was lost, it is manifest, that it was done by the omission to perform some duty in some of the agents employed in driving the logs, which the plaintiffs should have required to be done.
We cannot doubt, that the plaintiffs must be treated as having so far caused the mixture of the logs, that had the confusion been done wrongfully, the lien of the laborers is not extinguished. This brings us to the other inquiry, what was the character of the acts, which caused the confusion? Was the intermixture brought about by fraud, by accident, or by carelessness or inadvertence ?
In view of all the facts in the case, it would be too much to say, the confusion originated in fraud. There is a manifest want of all'the material elements of fraud in the plaintiffs and in all those, who had any agency in driving the logs and causing the mixture. On the other hand, it cannot be said, *295that the intermingling was the fruit of accident. The plaintiffs, their grantee, and those who contracted to cut, haul and drive the logs under him, must have known fully their situation. The parties to the deeds, knew or were bound to know all the claims existing upon them, and the propriety of such a course as would continue them in their full vigor. There may have been a want of knowledge of the nature of the laborer’s claim, and its extent, but this ignorance of the law cannot excuse the plaintiffs, so that they can invoke it for their own beneñt at the expense of those, who rendered the services. No care was taken to keep separate the logs hauled by the different companies of laborers respectively, by the agents employed, after they were placed upon the landings, and no marks were put upon them for the purpose of enabling them to make the proper division. It has the character of an intermixture produced by negligence or inadvertence.
What is the rule applicable to a confusion, caused by negligence or inadvertence, when the separation cannot be made, and the whole mass is different in quality from those parcels, which produced it ? Judge Story, in his Treatise on Bailments, sect. 40, deduces the rule, from the authorities, in these words: — “If the mixture is undistinguishable, and a new ingredient is formed, not capable of a just appreciation and division, according to the original rights of each, then the party, who occasions the wrongful mixture, must bear the whole loss.” In the case of Lipton v. White, 15 Vesey, 432, Lord Chancellor Eldon says, “ The defendant White, as far as he is concerned is involved in it simply in consequence of his own undertaking. No misconduct or fraud is imputed to him. He is culpable, not morally, but only for having applied too little attention to his own interest.” The condition of the plaintiffs in some respects, is not essentially unlike that of White in the case referred to. White had undertaken, that articles belonging to the plaintiff and the other party should be kept separate. His agent and lessees omitted to do it. A mixture took place of articles of different qualities; and no account was kept of those which came from the plaintiff, and not *296being distinguishable, the plaintiff was held entitled to the whole. In the case at bar, no moral wrong Avas imputable to the plaintiffs; but such an inattention to the lien of the laborers is shown, that they are so far responsible for the negligence, which was the cause of the confusion, that they cannot claim to hold the logs discharged of the statute lien for their own benefit, and turn over to persons, Avho may be irresponsible, those individuals, who performed the services and for whose protection the provision of the law was made.
In this case, the several parcels of logs, cut by the different companies of workmen, all belonged to the plaintiffs, so far as the lien in their favor extended, subject to the statute lien of those Avorkmen. Was it then a mixture of property of different values, belonging to different individuals ? Each parcel of logs was the property of each laborer, who had rendered personal service in their removal from the land, so long as his claim was in full force, and nothing but the lien excepted from the operation of the provision of the statute, could supersede it. As between such laborer and the plaintiffs, all the other parcels, according to the facts of the case, were the property of the latter. If the confusion had been caused by carelessness, for which they are responsible, and each laborer failed in consequence to distinguish the logs to which the lien originally attached; and the logs were of different qualities, so that he could not obtain those of similar value to his own, he would be entitled to sufficient to satisfy his claim, from the whole mass produced by the confusion. From the facts agreed, the defendant as the representative of the Avorkmen who caused the attachments to be made, is not responsible in this action to the plaintiffs.
In the case of William McMaster v. James and Alvin Haynes, he appears by the documents in the case to claim for services rendered for them, in cutting and hauling logs ; he also claims the sum of six dollars and thirty-seven cents, for the payment of expenses in getting into the woods. Without the statute, the laborers would have no right by attachment upon the lumber, in satisfaction of their services against those *297who did not own it. The lien is restricted to the “ personal services” of the one, who claims the benefit of it, and cannot extend to the charge last referred to.
It does not appear, that any distinction was made_ in the sale of logs to satisfy that part of the claim which was for personal services, and the other portion of it. But it appears from the statement of facts, that the suit is still pending, and upon leave granted, the writ may be amended by striking out the charge to which the lien does not attach, and no objection will exist to the application of so much of the proceeds of the sale, as will satisfy the residue, if he should obtain judgment therefor. Gilbert v. Hudson, 4 Greenl. 345.
Plaintiffs nonsuit.