#### Paine vs. Gill.

A person who performed manual labor in running logs for or on account of the owner, agent or assignee, had a lien upon the logs for his wages, under the Revised Statutes of 1858.

If the employer had previously sold the logs and received payment for them, the laborer would be entitled to a lien on the logs for his services in running them to the place designated for their final delivery to the purchaser. The employer would be regarded, in such a case, as the agent of the purchaser, in running the logs.

Where the labor was performed before chap. 215 of the General Laws of 1860 went into force, the lien was *held,*to have been acquired under the statute of 1858, although the proceedings for enforcing the lien were had under the statute of 1860.

APPEAL from tbe County Court of *Winnebago*County.

*Paine*brought an action before a justice of tbe peace, in July, 1860, to recover possession of a lot of pine logs, &c., alleged to bave been unjustly taken and detained by tbe defendant. Tbe defense was, that one Buckstaff bad, on tbe 25tb of June, 1860, sued out an attacbment before a justice of tbe peace, to enforce a lien upon tbe logs, in wbicb case sucb proceedings were bad that tbe logs in question were, by order of tbe court, sold upon execution, for tbe satisfaction, of said lien, and were bought by said Buckstaff, who then sold them to other parties, as whose agent tbe defendant took and detained them. The services for wbicb Buckstaff claimed a lien, were rendered between tbe 18th of March and tbe 15th of May, 1860, in running a lot of logs,, wbicb one Hanville bad, in tbe December previous, made a contract to sell to Paine, and to deliver to him, at Oshkosh, *562£n ]v[ay; I860. Tbe agreement between Hanville and *Paine,*after reciting that tbe former thereby sold to tbe latter 300,000 feet of pine lumber in tbe log, &c., to be delivered as above, stated that part of tbe price was to be paid in one yoke of oxen, to be delivered on tbe execution of tbe agreement, and $300 in supplies, when required, between that time and tbe 1st of May, 1860; and it was agreed that *Paine*should have a lien upon the lumber from tbe time it was cut until it was so delivered, for tbe yoke of oxen and tbe supplies so furnished. A witness for tbe plaintiff testified that “ part of tbe logs described in tbe contract (same as in complaint) were delivered to tbe plaintiff by Hanville, on tbe 1st of February, 1860, and delivered a *second*time in Maythat tbe plaintiff bad paid Hanville for tbe logs delivered, as early as tbe 1st of March, 1860; and that tbe logs in dispute were in tbe plaintiff’s possession at tbe time they were taken by tbe parties who purchased from Buckstaff. Another witness testified that Hanville did not get through cutting tbe logs till about tbe 15th of March. Tbe justice of tbe peace gave judgment for tbe defendant, which, on appeal to tbe county court, was reversed.

*Bouck & Fdmonds,*for appellant.

Buckstaff bad a lien on tbe logs under sec. 12, chap. 183, R. S. Chapter 215 of tbe General Laws of 1860 provides for tbe enforcement of such previously existing lien. Tbe legislature bad a right to create or change tbe remedy for a lien already existing. *Von Baumbach vs. Bade,*9 Wis., 559.

*Freeman & Jaclcson,*for respondent :

1. Tbe attachment, judgment, execution and sale bound no one but tbe parties thereto and their privies. Tbe purchaser at tbe sale acquired no more title than Hanville bad in tbe property at tbe time of tbe sale. 2 Bailey (S. C.), 480 ; *Freeman vs. Caldwell,*10 Watts, 9 ; *FIngland vs. Clark,*4 Scam., 486 ; *Owings vs. Thompson,*3 id., 509; 8 Johns., 334; Crocker on Sheriffs, 202. Hanville bad no interest in tbe property at that time, and no title passed by tbe sale. *Calvin vs. Bacon,*2 Fairf., 28. Tbe title vested absolutely in tbe respondent upon tbe delivery of tbe logs by Hanville. 12 Mass., 300; 17 id., 197; 1 Pick., 389 ; 3 id., 38. 2. Tbe *563statute of 1860 was retroactive, and therefore unconstitution-aland void. 1 Kent’s Comm., 601; 8 Wheat., 493.

April 10.

*By the Court,*

Cole, J.

We are of the opinion that tbe judgment in this case must be reversed. Section 12, chap. 153, R S., provided that any person performing manual labor upon any land, *timber*or *lumber,*for or on account of the owner, agent or assignee, might, by complying with the provisions of that chapter, have a lien thereon for the amount of work and labor done, and that the lien might be enforced under that statute. But as the action to enforce the lien had to be brought in the county or circuit court, the remedy was not found to be very efficacious or complete in all cases. Therefore, to give a more adequate and prompt remedy, the legislature enacted chapter 215, laws of 1860. This law gave justices of the peace cognizance of proceedings to enforce a lien for labor and service upon logs and lumber in certain counties, when the amount claimed did not exceed the jurisdiction of a justice of the peace. It also made some changes in the proceedings by which liens were to be enforced. But still the lien was not created or given by that act, in the case under consideration. Eor section 12 of the R S., before cited, gave a specific lien upon any timber or lumber in favor of any person performing manual labor thereon. And we have no doubt that it was the intention of the legislature to make this lien prior and superior to existing liens upon this kind of property. It is analogous in principle and reason to the case of repairs and improvements upon personal property, when the law gives a lien upon the thing itself in favor of the mechanic or person who has laid out his labor or money in such improvements. The workman, then, who performed labor in running logs, had his lien upon the specific property for the amount of his wages, under the Revised Statutes, and before the law of 1860 was enacted. So, were we to hold that by force of the written agreement entered into on the 19th of December, 1859, between Hanville and the respondent, the latter was the owner of the logs when Ruckstaff performed the labor upon them, still this would not destroy Buckstaff’s lien. *564That would still exist against tbe property, and Hanville be considered as tbe respondent’s agent in employing Buckstaff to run tbe logs. But tbat contract is not one wbicb made tbe respondent tbe owner of tbe property before tbe lien accrued. By tbe terms of tbat agreement tbe logs were to be delivered at Oshkosh. Buckstaff performed bis labor and services in running them down to tbat point. It is true one of tbe witnesses for tbe respondent states tbat there was a delivery of a portion of tbe logs mentioned in tbe contract, in February. He also further testifies tbat they wére a second time delivered by Hanville in May. What sense or meaning there can be in a second delivery, is more than we can understand. If they were once delivered, Han-ville no longer had¡. possession of them. But we presupie tbe truth was tbat tbe logs were delivered by Hanville at Osbkosb accordingto the written contract. And it was in running tbe logs down to tbat point tbat tbe lien accrued.

If we were satisfied that tbe logs belonged to tbe respondent at tbe time tbe services were performed, or tbat be bad a prior lien upon them, and tbat Buckstaff's lien was created by tbe act of 1860, we might then have to inquire whether tbe legislature could make tbe latter lien superior to tbe former. But from our understanding of tbe case, we are relieved from tbe consideration of any such question. Tbe act of 1860 did not create tbe lien; it merely provided a way for enforcing it. Indubitably it is competent for tbe legislature to pass remedial statutes of that character. They create no right, but only provide a way for enforcing an existing one.

We cannot see, therefore, why tbe proceedings in tbe attachment suit of *Buckstaff vs.*Hanville, to enforce tbe lien, were not valid and regular. If so, tbe purchaser at tbe sale upon tbe execution took a good title. This view disposes of tbe case, and renders a consideration of tbe other questions discussed by counsel unnecessary.

Tbe judgment of tbe county court is therefore reversed, and a new trial ordered.