¶1The plaintiff labored, cutting and hauling logs, for James J. Twombly, and sued him for his wages, *456intending to secure his statute lien upon the logs on which he had wrought.
¶2The defendant, a deputy sheriff, to whom the plaintiff’s writ against Twombly was delivered for service, attached the logs thereon November 23, 1853.
¶3The plaintiff recovered judgment against Twombly, on which execution was duly issued, January 18, 1855, and delivered to John H. Wilson, a deputy sheriff, for collection, who duly demanded the logs attached, which the defendant did not deliver, and hence this action was commenced against him.
¶4By statute of 1848, chap. 72, entitled “ an act giving to laborers on lumber a lien thereon,” it is provided in sec. 2 that “ any person having a lien as aforesaid may secure the same by attachment, &c.” It is obvious that such attachment must be made by virtue of a legal precept, in some form conferring the requisite authority upon the officer acting under it.
¶5The writ against Twombly, upon which the logs were attached, commanded the officer (the defendant) “ to attach the goods or estate of James J. Twombly, and particularly a quantity of logs lying in Penobscot river, (describing, by their marks the logs upon which the plaintiff had worked,) upon which the plaintiff claims to have a lien, by virtue of a statute entitled “ an act to secure to laborers on timber a lien thereon.”
¶6The declaration was in the common form, on an account against Twombly, annexed, and contained no allegations of any claim upon the logs; nor did the precept authorize the defendant to attach the logs only, as “ the goods or estate of Twombly.”
¶7The plaintiff’s execution, upon which Wilson demanded the logs, was against the goods, chattels, and lands of Twombly, and for want thereof against his body. It neither commanded or authorized the officer to take the property of any other person than the judgment debtor.
¶8It does not appear that Twombly ever owned the logs, or *457had any interest in them, except as an operator under another person or persons, and there was evidence in the case that he had received his pay for hauling them, and had sold and conveyed whatever interest he had in them, to Leadbetter, before they were attached by the defendant, by whose return upon the writ, it appears that they were not attached as Twombly’s property.
¶9To render the defendant liable in this suit, the attachment of the logs must have been authorized by his precept against Twombly. It must have been a valid attachment, which, when made, he would have been bound to preserve, and the demand made by Wilson must have been, for property attached, which he could lawfully dispose of, and appropriate the proceeds thereof, in payment of the execution in his hands, and which the defendant was under legal obligations to deliver to him for that purpose.
¶10The instructions of the presiding judge, to which exceptions were taken, assumed that the precept against Twombly authorized the attachment, and that the attachment was valid, and that the execution authorized the demand, upon which the defendant was bound to deliver the logs attached.
¶11They held the defendant liable, without any regard to the • question whether or not Twombly had any interest in the log’s at the time of the attachment, or at any other time.
¶12There was error in the instruction given, and as agreed by the parties, the default must be taken off, and the action stand for trial.