The opinion of the Court was by

This libel has been filed by virtue of the statute, c. 61, § 9, which authorizes a person having timber in the waters of this State, so mixed with the timber of another, that it cannot conveniently be separated to be floated to the place of market or manufacture, to drive all the timber so mixed, when no special or different provision therefor is made by law; and gives him the right to obtain compensation for his services.

The respondent, Benjamin M. Flint, appeared and claimed to be the owner of one lot of the logs designated by a certain mark, and put in an answer and special demurrer to the libel.

The libel alleges in substance, that on June 12, 1846, the logs of the libellant were in the Big Musquash stream, for the purpose of being floated to Vance’s boom in the town of Baring ; that they became so mixed with three other lots of logs designated by different marks named, that they could not be driven, without driving those other lots; and that he caused the whole to be driven; that no special provision of law for that purpose existed; that the owners of those lots of logs were at the time, and have since continued to be unknown; that the libellant on August. 5, 1846, caused fourteen thousand feet, board measure, of those logs to be seized and detained for payment of the expenses incurred in driving them.

The libel does not state, that the whole of either lot, or what proportion of either lot was seized, or from what lot or lots the amount seized was selected.

The question therefore arises, whether logs owned by one person may be seized, libelled, and sold, to pay not only the expense incurred in driving them, but also the expenses incurred in driving the logs owned by another person.

A construction of the statute, that would permit this, must *479rest, upon the conclusion, tlxat the legislature intended to allow the property of one person to be taken to pay the debt of another. If this were the design it would exhibit an attempt to violate private rights in a manner not permitted by the constitution. Such a construction should not be admitted, if the statute may receive any other reasonable one. So far is the statute from requiring such a construction, that it is apparent, that the legislature had no such intention. The person, who thus causes logs to bo floated to the place of manufacture, is entitled to a reasonable compensation, to be recovered from the “ owner,” by an action on the case, if he be known. If the owner cannot be ascertained, the property may be seized and libelled according to the provisions of chapter 132. But it is the property on which the expense has been incurred, and not other property that may be seized and libelled. The whole of the property according to the provisions of the statutes, and not a selected portion of it, is to be seized and libelled. In such case each person may appear and claim his own proportion of property owned in severalty, and receive it, or so much of it as may not be required to pay the sum expended upon it with costs.

When, by the libel, different lots designated by different marks, appear to have been driven ; and when a portion only of them appears to have been seized and libelled without any designation of the lot or lots, from which it was selected, no sufficient foundation is laid for a decree so framed as to avoid the application of the proceeds of the sale of the property of one man to pay a debt due from another.

The proceedings in this respect appear to have been irregular. The libel also is in this particular defective.

It is defective also, in that it does not allege, that the owner of those logs could not be ascertained.

The statute gives an action on the case against the owner of the logs for the recovery of the amount expended upon them. It permits a recovery thereof by a process against the property only, when “ the owner of such logs cannot be ascertained.” There is an essential difference between the allegation contain*480ed in the libel, that the owners are unknown, and that required by the statute, that they cannot be ascertained.

The libel is also defective in that it does not allege, that the libellant, after seizure of the property, “ caused an inventory and appraisement of the same, to be made by three disinterested persons, under oath, appointed by a justice of the same county,” as required by statute, c. 182, § 4. the value thus ascertained is declared by the statute to be “ the rule for deciding, where the libel shall be filed.” Such inventory and appraisement are necessary also to enable the court to make a correct and just distribution of the proceeds of the sales, and to enable it to ascertain, that all the property has been sold and accounted for by the officer, who executed the venditione exponas.

The demurrer is allowed, and the libel is dismissed with costs for the respondent, to whom the property claimed by him is to be restored.