Getchell v. Gooden

63 Me. 563

• Court: Supreme Judicial Court of Maine
• Decided: July 1, 1874
• Status: Published

Opinion

Peters, J.

The log owners contend that the writ in this case is not sufficient, because it is not alleged that the logs had not been sixty days at their place of destination for use or manufacture at the date of the writ. But the facts, which constitute the lien, are distinctly stated. We do not see that it is necessary to declare affirmatively that an alleged lien has not been lost by lapse of time. That fact is impliedly averred in the assertion contained in the writ, that the plaintiff is entitled to a lien for his labor, and that tbe suit is brought to enforce the same. Moreover, if the writ is made within the sixty days, the attachment might not be made within that time; and it would be awkward to allege in a writ that an attachment upon the writ was seasonably made. The point raised is one of proof rather than of pleading. It is clearly made so by R. S., c. 91, § 36. Parks v. Crockett, 61 Maine, 489. Exceptions sustained.

Appleton, C. J., Cutting, Walton, Barrows and Danporth, JJ., concurred.