Hopkins v. Rays

• Decision Date: 27 July 1894
• Court: New Hampshire Supreme Court
• Parties: HOPKINS v. RAYS et al.

44 A. 102

68 N.H. 164

HOPKINS

v. RAYS et al.

Supreme Court of New Hampshire. Coos.

July 27, 1894.

Exceptions from Coos county.

Action by Margaret C. Hopkins against Rays, McPherson & Co. and others. Judgment for plaintiff, and defendants bring exceptions. Overruled.

Assumpsit to enforce a lien for labor and supplies to the amount of $570.46, furnished by the plaintiff to the defendants in cutting and hauling logs. Facts found by a referee. The defendants were engaged in cutting and hauling logs from their lot in Kilkenny. The plaintiff furnished them with supplies to the amount of $390.46, which went into the general enterprise, and drew logs as directed, for which there was due the sum of $180. The logs taken from the lot were drawn to different places. Those attached by the plaintiff were not drawn by her teams, but came from the same lot as those for the drawing of which a lien was claimed. The claimant contended that the plaintiff was not entitled to judgment in rem, (1) because the logs to be attached were not described with sufficient definiteness in the precept to the officer, and (2) because the plaintiff had no lien on the logs attached for the item of $180, those logs not having been drawn by her. The court ordered judgment on the report for the plaintiff in rem, and the defendants excepted.

Ladd & Fletcher, W. & H. Heywood, and Shurtleff & Sullivan, for plaintiff.

Drew, Jordan & Buckley, for other creditors. Alland G. Fay, for claimant.

SMITH, J. The precept in the writ commanded the officer to attach all the logs drawn by Rays, McPherson & Co., and lying by the Kilkenny Railroad in Lancaster, Kilkenny, or Northumberland. The officer's return shows an attachment of all hard-wood logs lying upon the pond in and about the mill yard of Whipple's (the claimant's) mill in Lancaster. The logs attached were lying on the mill pond, three or four rods from the railroad. At the time of the attachment they had been purchased by Whipple of the defendants, subject to whatever lien the plaintiff had. The description of the property was sufficiently definite to enable the officer to find and take possession of it The property was logs. The particular logs were those drawn by the defendants, and were distinguishable from other logs there by certain marks upon them. The place or places where the logs might be found were the towns of Lancaster, Kilkenny, and Northumberland, and the particular locality in the towns was the Kilkenny Railroad, or, in the language of the precept "lying by the Kilkenny Railroad." The logs were found on the ice in Whipple's mill pond, on the line of the railroad, and three or four rods from it Logs lying no further than that from the track of a railroad may well be said to be "lying by the railroad." They were doubtless lying as near the railroad as bulky articles of that nature could be safely or conveniently placed. No question as to their identity is raised. The fact that they had been drawn by the claimant some two miles from the place where the defendants delivered them to him is of no importance, except so far as it might...