Birkbeck v. The Hoboken Horse Ferry Boats — 17 Johns. 54

Majority

p. 53

*Birkbeck against The Hoboken Horse Ferry Boats

Headnote

The aet,sess.22. c. 1. (2 R. S. 493.) authorizing the arrest of ships or vessels, for debts contracted by the. master, owner, or consignee, for or on account of such ships or vessels, in this state ; and the act, sess. 40. c. 60. amending' the same, extends only to ships or vessels navigating the ocean, or at most, to such as sail coastwise from port to port: and a lorry boat, plying across a river, as from New- York to the opposite shore of New~ Jersey, is not Hable to attachment under the'se statutes.

THIS was a proceeding by attachment, commenced in the Mayor's Court, of the city of New-York, and removed into this court by certiorari, against two horse ferry boats, under the act, sess. 22. c. 1. (1 iV. II. L. 130. 2 Rev. S. 493.) authorizing the arrest of ships or vessels, for debts contracted by the master, owner, or consignee, for, or on account of, such ships or vessels, in this state ; and the act of the 28th of February, 1817, (sess. 40. c. 60.) amending the former act. The first section of the act, sess. 22. c. 1. provides, “that ships or vessels of all descriptions, built, repaired, or equipped in this state, and owned by any person or persons not resident therein, shall be liable for all debts contracted by the master or commander, owner or consignee, thereof, on account of any work done, or any supplies or materials furnished by any mechanic, tradesman, or others, for, on account, or towards the building, repairing, fitting, furnishing or equipping, such ships or vessels ; and that debts, so contracted, shall be a lien upon such ships or vessels, their tackle, apparel, and furniture; and shall have preference to any and all other debts, due and owing from the owner thereof, except mariners’ wages.” And, by the fifth section, it is further enacted, “ that the said lien shall cease immediately after such ship or vessel shall have left this state.” The amending act extends the provisions of the former act, “ to ships and vessels owned by persons resident within this stateand, also, provides, “ that the said lien shall, in no case, endure bevond twelve days after such ship

p. 54

or vessel shall leave the port, in which the same may have been so arrested.”

The plaintiff’s declaration stated that, on the 17th of Feb-ruarlh 1817, and on divers days and times, between that day and the 3d day of November, in the same year, at the request of the owners of the boats or vessels known by the description of The Hoboken Horse Ferry Boats, being two in number, (and then, with their tackle, &c., in the custody of the sheriff of the city and county of New- York, by virtue *of a warrant issued by the recorder of Neto-York, commanding the sheriff to attach the same, lying in the city of New-York,) he, by himself and his servants, as blacksmiths, did and performed work and labor, care and diligence, in and about the building, and equipping of the said boats, and found materials for the same, amounting, in the whole, to 2923 dollars and 25 cents; and the plaintiff averred, that the boats had not been out of, or departed from, or left the port of New- York, since the performance of the work and labor, and furnishing of the materials, and also averred a demand of payment from the owners, and their refusal.

Swartwout and others, Brown and Hone, appeared and defended in respect of their several interests. Swartwout and others, as owners of the boats, pleaded, 1. Non assumpserunt. 2. That the supposed debt, or lien, of the plaintiff, arose on, or about, the 2d of November, 1817; that the boats were arrested on the 2d of December, in the same year; and that, before the arrest, to wit, on the 10th of November, the boats left the state of New- York, whereby the supposed lien of the plaintiff ceased. To this plea the plaintiff replied, denying that the boats had left the state, &c.

The defendant Brown pleaded, that the two boats, respectively called the Hoboken and the Manhattan Island, were built by him, for the Swartwouts, and that he furnished the materials ; that the Swartwouts, for securing to him the payment of 6,000 dollars, part of the consideration for building the boats, executed two bottomry bonds to him, each conditioned for the payment of 3,000 dollars, one, dated the 1st of May, 1817, upon the Hoboken, and the other, dated the 1st of June, 1817, upon the Manhattan Island; that the said bonds were executed and delivered on the days on which they respectively bear date ; that the lien of the plaintiff arose on, or about, the 2d of November, 1817, subsequent to the execution and delivery of the said bonds, and the prior lien of this defendant, arising from his being employed to build the boats, &,c.; and that neither of the sums secured by the said bonds, or any part thereof, have been paid and satisfied. To this plea, the plaintiff replied, that he executed, and furnished all the iron work, and iron necessary for the equipment of the said boats, from the commencement, and during *the progress of the building and equipping of them, to wit, on the 17th of Feb

p. 55

ruary, 1817, and on divers days and times between that doy and the 3d of November, in the same year: and that his debt and lien arose on the 17th of February, and not on the 2d oí November, as alleged by the defendant Brown.

The defendant Hone pleaded, 1. After stating the lien of Brown, and the execution of the bottomry bonds, that, on the 20th o/ November, 1817, Brown, in consideration of two sums of 3,01)0 dollars each, to him in hand paid, assigned the two bonds to this defendant, by assignments endorsed thereon respectively ; and he insisted on the priority of the lien of Brown. 2. The second plea repeated the material allegations of the first plea, and also stated, that on the 19th of November, 1817, it was agreed between tills defendant and the ¡Swartwouts, that the defendant should advance to Brown, 6,000 dollars, and take from him an assignment of the bonds, and should lend to the Swartwouts 19.000 dollars, and receive from them, as his security, a mortgage or hypothecation of the boats; that, in pursuance of this agreement, the defendant, on the 20th of November, paid to Brown the sum of 6,000 dollars, who, the same day, assigned the bonds; and, also, on the same day, paid to the Swartwouts 19,000 dollars, who executed and delivered, on the 26th of November, an indenture of mortgage or hypothecation of the boats; and that neither of these sums, or any part thereof, had been paid or satisfied. There were replications to each of these pleas, which were essentially the same as the replication to the plea of the defendant Brown, except that they referred to the additional matter introduced by the pleas of the defendant Hone.

Issue was joined on the replication to the plea of the defendants, Swart wo ut and others. The defendants, Brown and Hone, demurred generally to the several replications to their pleas, and the plaintiff’ joined in demurrer. The cause was submitted to the court without argument.

The plaintiff has proceeded by attachment against two ferry boats, the Hoboken and the Manhattan Island, under the act, (1 N. if, L. 130. 2. If. S. 493.) and it appears that *tbese boats ply between the island of New-York and Hoboken, in the state of New-Jtrsey,

The parties are at issue, on a demurrer to the replications, to which various exceptions have been taken ; but, without considering these exceptions, we are of opinion that the plaintiff’s proceedings cannot be sustained, on the ground that the act, and the one amending the same, (sess. 40, ch. 60.) do not extend to vessels of this description.

The first section of the first act extends to ships or vessels of all descriptions, built, repaired, or equipped, in this state, and owned fay any person not resident therein ; and the amend-atory act extends the former act to ships or vessels owned by persons^resident within this state.

p. 56

The general terms “ ships or vessels of all descriptions, built, repaired, or equipped in this state,” are qualified and restricted by other parts of the acts to such ships or vessels as are built, repaired, or equipped in this state, for the navigation of tire ocean, or, at all events, to such vessels as sail coastwise, from one port to another port.

This, we think, is manifest from all the provisions of the statutes; the fourth section of the first act provides that, upon giving the security therein mentioned, the vessel shall be discharged from tile attachment, and be permitted to proceed on her voyage. The fifth section declares, that the lien shall cease immediately after such ship or vessel shall have left this state; and the amended act provides, that the lien shall, in no case, endure beyond twelve days after such ship or vessel shall leave the port in which the same may have been so arrested. The. first act was confined to ships or vessels owned by persons residing out of the state, which, independently of the other provisions of the act, would operate only on such vessels as performed voyages on the ocean, or from one port to another. The subsequent act, extending the same remedy to ships or vessels owned by persons resident within the state, preserves th§ distinction between vessels that do, and those that do not, leave the port, except temporarily, or for an hoar or two.

This construction gives full effect to the statutes, in the utmost latitude to’ which the legislature intended the remedy, by attachment, should be extended. It embraces ships and ♦vessels of all descriptions engaged in foreign trade, or performing voyages coastwise, from state to state ; but it excludes those boats which paver go out of sight of the port from which they move, and are used merely as ferry boats to cross a river.

The present case comes neither within the spirit or intention of the acts, nor the mischiefs intended to be remedied. We perceive no greater reason for subjecting boats of this description to a lien by attachment, than a wagon or coach, for re pairs done to them.

Judgment for the defendants.