It is admitted, that the deputy of the defendant returned an attachment of logs of certain marks named, of sufficient value to pay the debt and costs, on a writ in favor of the plaintiff against Thomas Stinson. Thai he was indemnified for so doing; that an execution issued on a judgment recovered in that suit was in possession of that deputy within thirty days after judgment, with orders to levy on the property attached; and that he neglected to do it; *544that the labor, for which that judgment was obtained, was performed by the plaintiff by “ driving logs, masts and spars of six several marks alleged in said writ; and that said Stinson had contracted to drive said lumber, with the owners thereof.”
The plaintiff acquired a lien upon those logs, for payment of his labor upon them, by the provisions of the Act approved on August 10, 1848, c. 72.
Proof was offered in defence, that those logs were “ owned by three or four individuals in different proportions, some owning one mark and some another of the six marks, and that they were all mingled in one drive and run together; and that the value of all the logs was at least ¡$5000.”
It does not appear, that they were not so “ mingled in one drive” by the consent of the owners. Or that more of the property of any one owner, would necessarily have been sold, than would pay the amount for driving his own logs.
There is nothing in the facts admitted, or proposed to be proved to show, that the deputy would have been required to take the property of one person to pay the debt of another, when such person had done nothing to subject it to such liability ; or that he would have been required to do any unlawful act, by making sale of the property attached. The defence entirely fails. Defendant defaulted.
Tenney, Appleton, Hathaway and Rice, J. J., concurred.