The opinion of the Court was drawn up by
Whitman C. J.—The Judge, at the trial, ruled, that there was no evidence, that the plaintiffs agreed, that Rufus Dwinell’s receipt, for the property attached, should be taken by the defendant’s deputy-; and we do not see how he could have ruled otherwise. It was not in evidence that it had been done by their attorney in the action. Norton and Sinclair, who induced the deputy to make the attachment, were not the agents of the plaintiffs. They were both on the note in suit, one as promisor, and the other as indorser, and interested in having the debt secured from the property of Tibbets and Dwinell. In what they did, they acted independently of the plaintiffs, and with a single view to their own interests. The plaintiffs do not appear to have had any knowledge of their interference ; and much less, is there any reason to suppose that they knew of any receipt taken for the property attached. It would seem that, finding the deputy had made the attachment by recurrence to his return, they required him to have it forthcoming to satisfy the execution, which they subsequently obtained. *139Tlie argument, that the plaintiffs, by availing themselves of the attachment., became affected by all the incidents attending the making of it, is not well founded. Such incidents, further than appeared in the deputy’s return, were affairs exclusively between him and Norton and Sinclair; as much so, as if any stranger to the suit had, by his interference, induced the deputy to do the same or similar acts.
As to the motion for a new trial, there is more ground for dissatisfaction with the decision. The complaint is, that the verdict is against evidence, or the weight of evidence. Its amount cannot be accounted for, but by supposing that the jury must have disregarded the defence set up, that the logs attached were encumbered, at the time, by what is called a lien, in behalf of the proprietors of the land, from which the timber was cut, for the value of it, as it was, when standing; which had been agreed to be at the rate of four dollars per thousand feet. And it has been surmised, that the jury were induced to do so, upon the supposition, that no such lien could exist, unless the permit of the proprietors to cut the timber, was in writing, with a reservation therein, of such lien; which is but a refusal on the part of the proprietors to part with their property in the timber, to the persons cutting it, till paid for its value as when standing. However it may have occurred, that they did so disregard the lien, is, perhaps immaterial, provided the evidence was such that they should not have disregarded it; and provided, also, it can be clearly ascertained that they did disregard it.
That they must have disregarded it, would seem to be satisfactorily inferable from the following data. None of the testimony can fairly be considered as estimating the value of the timber, when demanded of the deputy, who attached it, as it was, when cut and hauled and turned into the Penobscot river, at more that six dollars per thousand feet.; and the quantity got into the river did not exceed 465 thousand feet. The value of the timber, in such case, could have amounted to only 02790. The amount of the lien, as subsequently enforced by the agent of the proprietors of the land, was not Jess than 01965. This would leave but §825, for the net *140value of the timber, which, with interest thereon from the-time of demand upon the deputy, to the time of trial, would have amounted to not exceeding twelve hundred dollars, whereas the verdict returned was for {$3185,32.
The next question is; should the jury, from the evidence, have been satisfied, that the timber, when attached, was encumbered with the lien. It is believed to be quite a matter of notoriety, that proprietors of timber lands seldom, if ever, grant permits to cut timber on their land, without previous payment, or good security therefor, unless with a reservation of the lien for the value. Indeed, it may be regarded as seldom, that any other security is ever obtained or relied upon. And a proprietor, and especially an agent of a proprietor, would be regarded as acting very indiscreetly in omitting to be so secured. Hence it might, upon' slight evidence, be believed that such precaution had been taken. But, independent of any such presumption, the evidence in this case was such, that it would seem to have been unquestionable, that the permission had been granted with the usual reservation of the right of lien; and that it had been enforced by the agent of the proprietors. Wadleigh, one of their agents, is positive, that, in granting the permit, whether it was verbal or in writing, the right of lien was reserved. Luther Ewinell says the permit was in writing, and in possession oMiimself and his partner for more than a year, though now lost; and that the right of lien was reserved in it. And Sinclair says, if the permit was in writing, it contained the reservation. And Wadleigh and Sinclair both, have the impression that the permit was in writing. And Bennet, and some of the other witnesses, speak unequivocally to the enforcement of the lien as reserved. With such a mass of evidence, all directly tending to establish the existence of the lien, and its enforcement, we think the jury should not have hesitated to admit it; and whether the reservation was in writing or by verbal agreement, was unimportant. We think, also, that there cannot reasonably be a doubt, that the jury, by some means or other, were induced to think it inadmissible.
Exceptions overruled; but a new trial granted upon the motion filed.