Any shipcarpenter, caulker, blacksmith, joiner or other person, who shall perform labor, or furnish materials for or on account of any vessel building, or standing on the stocks, &c., shall have a lien on such vessel, &c. R. S., 1841, c. 125, § 35.
As in other cases, we must resort to the common law, to ascertain the meaning of the term “lien;” and it is there thus defined: “A general lien is the right to retain the property of another for a general balance of accounts; but a particular lien is a right to retain it only for a charge, on account of labor employed, or expenses bestowed upon the identical property detained.” 2 Kent’s Com. 634. The author adds, “ The one is taken strictly, but the other is favored in law. The right rests upon principles of natural equity and commercial necessity.”
The lien referred to in the statute cannot be a general lien; the language forbids such construction. But in its character, it is the same as a particular lien, at common law.
The principle embraced in the statute is founded in natural justice, that the party, who has enhanced the value of the property, by incorporating therein his labor or materials, shall have security on the same, though changed in form, and inseparable from the property. But justice does not require, that he should be allowed the security, in the same property, for the price of materials, which became no part thereof.
Materials, sold by one party to another, under the representation that they would be wrought into a vessel, which the latter contemplated building, or which was in the process of construction by him, and afterwards diverted from that purpose, by being disposed of by the purchaser, or taken and sold on an execution against him, so that they never became a part of the vessel, have not been bestowed upon the identical vessel, for which they were purchased; but may in fact have been incorporated into another vessel, to which the lien could with greater propriety attach.
If the doctrine advocated by the plaintiffs’ counsel should prevail, the laborers upon a ship, and those who provide mate*82rials -which are actually used in its construction, may be deprived of their respective liens thereon, by a previous suit and attachment, in favor of a party who has sold materials for the same ship, but which have never been used upon it.
It cannot be doubted, upon a true construction of the statute, that the lien provided thereby, can extend no further, than to be security for the price of the labor and materials actually expended upon the property to which it attaches.
About one-half of the iron which the plaintiffs sold and delivered to A. Scammons & Co., was incorporated into the vessel, and the balance thereof was otherwise used by the purchasers, and remained in the yard and was sold by the officer who had attached it; at the same time of the sale of the iron, the vessel was also sold by the officer, subject to all liens thereon, she then remaining unfinished upon the stocks. Subsequently, the plaintiffs instituted their suit, to secure and enforce their lien upon the vessel for the iron furnished by them. The defendant, as sheriff of the county of Hancock, made return upon the writ in that action of the attachment of the vessel; judgment was afterwards rendered in the action for the full price of all the iron delivered; an execution was issued on that judgment, and within thirty days after the rendition of the judgment, the vessel was duly demanded of the defendant that it might be taken and sold on the execution; and the defendant neglected to deliver the same. To recover damages for that neglect, this action is brought, the judgment remaining in no part satisfied.
The value of the iron, not used about the vessel, was merged in the judgment, and could not be separated from the value of the other portion. This was a waiver of the lien. Bicknell v. Trickey, 34 Maine, 373. The vessel having been previously sold to satisfy other debts, it could not be sold again, unless to enforce existing liens. Upon the delivery of the vessel, when demanded of the defendant, it could not have been legally sold upon the plaintiffs’ execution; and they have lost nothing by his neglect. The law requires no useless cere*83mony, and the defendant was guilty of no omission of duty, for which the plaintiffs are entitled to damages.
Plaintiffs nonsuit.
Hathaway, Appleton, May and Goodenow, J. J., concurred.