Stuart v. Morrison , 67 Me. 549 ( 1878 )

Libbey, J.

The description in the writ of the logs on which the plaintiff claims a lien must be held as embracing one lot of logs and'one mark only. There is nothing in the description by which we can separate the several characters used, and determine that they constitute several marks of different lots of logs. To establish his right to judgment against the logs for the lien claimed, the plaintiff must show that he performed labor in cutting, hauling, rafting or driving the logs described in the writ, and that the same logs are attached in the suit. He admits that he performed no labor on logs marked with all the characters contained in his writ, but claims to show by parol evidence that the description in the writ contains four distinct marks, and that he performed labor on logs of each of those marks. It is not competent for him to explain the mark by parol. We must take the description of the logs as we find it in the writ. The logs attached are not of that description. The variance between the description in the writ and the proof is fatal to the plaintiff’s claim against the logs attached.

The view we have taken of this point in the case renders it unnecessary to consider the other points raised.

The claims of Copeland, Duren & Co., of Henry F. Eaton, and of George McAllister, must be dismissed without cost. The attachments of the logs severally claimed by them were released before the return of the writ. No notice was given to owners of logs of the marks claimed by them. By the docket entries it does not appear that they were permitted to come in as parties. They have no standing in court.

The plaintiff is entitled to judgment against the defendant for $151.45 and interest from the date of the writ.

Judgment against the logs attached denied.

Appleton, C. J., Dickerson, Daneorth, Yirg-in and Peters, JJ., concurred.