Scudder v. Balkam

Rice, J. The question presented by the exceptions, on which reliance was had at the argument, was, whether a party who had furnished materials for the construction of a vessel, on credit for a given period, can avail himself of the lien given by § 35, c. 125, R. S., by an attachment, before the term of credit had expired. The intention of the statute was'to give to Jhose persons who performed labor, or furnished materials for the construction or repair of vessels, additional facilities for securing payment for such labor or materials. The statute in no way modifies or changes the obligation of the contract; it applies to the remedy only. The peculiar advantages which it affords to a lien claimant are, that he may resort to the vessel upon which the labor was performed, or for which [293] tbe materials were furnished, without regard to the question of ownership, and his attachment, when made, shall have precedence of all other attachments. To avail himself of these advantages, however, he must be in a situation to make a valid attachment. But before he can make such an attachment, he must have an existing right of action. His right of action must of course depend upon the terms of his contract. If his action be not maintained, his attachment is forthwith dissolved,* under the general law. The law has dispensed with none of the elements, in this class of cases, which are ordinarily necessary to give a right of action. If therefore the plaintiffs chose to give so extended a credit that no action could be maintained until after the time, during which a lien could be secured, had elapsed, they must be deemed to have voluntarily waived their lien, and relied upon the personal security of the parties to whom credit was given. The case being before us on exceptions, the question whether the verdict of the jury was sustained by the evidence, cannot be considered. Exceptions overruled. Judgment on verdict.