Clark v. Thorp — 15 N.Y. Super. Ct. 680

Majority

p. 680

Burton E. Clark v. Thomas S. Thorp, and another.

Headnote

1. In a complaint on a bond, given to procure tlie discharge of a warrant of attachment, issued under the Act, entitled, “ Of proceedings for the collection of demands against ships and vessels,” the plaintiffs should, in order to sustain the bond as a statute security, not only aver the facts, showing that such warrant of attachment was duly issued, and that the bond was executed by the defendants, and that the claim of the creditor has not been paid; but also, that the bond was delivered to the officer by whom the attachment was issued, in such wise, that it became his duty to grant a discharge of the warrant.

2. If such averment be made, it will be presumed that the officer did his duty; that the applicant for the discharge obtained the benefit thereof; and that so the bond became operative in the plaintiff’s favor as a statute security: although it be not averred that the officer approved the security, nor that the discharge was granted, nor that the vessel was released from the custody of the sheriff The acceptance of the bond by the officer would import that he approved of the security.

3. And, if the warrant was not in fact discharged, nor the vessel released, the defendant must set up such facts as a defence.

4. But, where the complaint does not aver that the bond was delivered to the officer, nor that he approved of the security, nor that an order for the discharge of the warrant was granted, nor that the vessel has been released from custody, such complaint cannot be sustained upon the bond, regarded merely as a statutory security.

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6. But such a bond is, nevertheless, a valid security, and not a merely voluntary obligation; the seals import consideration; and the condition being the payment to the plaintiff of the claims, etc., exhibited, -which should be established to have been subsisting liens upon the vessel, and a breach of the condition being alleged, the complaint is sufficient, notwithstanding it does not show the full compliance with the statute.

(At Special Term.

Before Woodruff, J.)

June 18th, 1858.

Demurrer to complaint. The action is brought upon a bond given by the defendants to procure the discharge of a vessel from an attachment, issued under title 8, of chapter 8, of part 3, of the Revised Statutes. (2 R. S. 493.)

That statute, after providing the claims for which a ship or vessel may be attached, (the same being liens on the ship or vessel ;) the facts to be stated in an application therefor; the officer to whom application shall be made; the warrant to be issued by such officer; the duty of the sheriff in executing the warrant; the exhibition of other claims, if any there be; arid the proceedings under the warrant of attachment—then provides that the owner, etc., may apply to such officer for a discharge of the warrant; and, by § 13, he “ shall execute and deliver to the officer ... a bond to the creditors, ... in a penalty, etc. . . . with such security as shall be approved by such officer, conditioned that the obligors therein will pay the amount of all such claims and demands as shall have been exhibited, which shall be established to have been subsisting liens on such vessel ... at the time of exhibiting the same respectively.”

And, by § 14, “upon such bond being executed and delivered, the said officer shall thereupon grant his order, discharging the warrant that may have been issued by him.”

By § 16. “ In the suit upon such bond, the attaching creditors, respectively, shall state, in their declaration, their respective demands, alleging the work to have been done, or the materials or articles furnished, or the expenses incurred at the request of the master, owner, agent, or consignee of such vessel, as the case really was, averring that the claim therefor was a subsisting lien on such vessel, at the time of the exhibition thereof; . . . and shall assign as a breach of the condition of such bond, the nonpayment of the claim of such creditor.”

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The supposed defects in the complaint herein, are stated in the Opinion of the Court.

The defendants demurred, upon the ground that the facts stated therein were not sufficient to constitute a cause of action; and the particular grounds relied upon are also stated in the Opinion.

Stewart Bitch and Woodford, for the plaintiff.

Wm. A. Harderibrooh, for the defendants.

The action is brought upon a bond given in order to procure the discharge of a vessel which was attached-under, and in pursuance of title 8, of chapter 8, of part 3 of the. R. S. The complaint states all the facts requisite to show the exigency under which, by the provisions of the statute, a bond to procure such discharge was proper. It then avers an application by the owners for an order to discharge the vessel, and that “ thereupon, and in consideration thereof, and for the purpose of procuring said discharge, the defendants did, under seal, and in pursuance of the provisions of the statute above mentioned, make, execute, and deliver to the attaching creditor, the bond set forth in the complaint.

The bond is in due form, and the breach of the condition is sufficiently alleged. It has not been objected before me, on the argument of the demurrer, that in any of the above particulars, the complaint is defective.

It is claimed, however, that the complaint does not aver that the bond was approved by the officer to whom the application for the discharge was made, nor that it was delivered to, or accepted by him, nor that any discharge of the vessel was granted by the officer, or was procured upon, or by reason of the execution of the bond.

The statute requires (§ 13) that the bond, for the execution of which the statute provides, shall be delivered to the officer to whom the application was made, and that it shall be executed by the applicant for the discharge of the vessel, with such security as shall be approved by such officer. And by § 14, “ upon such

p. 683

bond being executed and delivered,” it is made the unqualified duty of the officer to discharge the warrant. If the complaint had averred that the bond had been executed and delivered to the officer, in such wise that it became his duty to grant a discharge of the warrant, I should think that sufficient. It might, I think, for all the purposes, both of pleading and proof, be assumed that the officer did his duty, and if his subsequent refusal constituted any defence to the action, such refusal, and the continued detention of the vessel might be set up by the defendant as an answer to the action. And had the averment been, that the bond' was delivered to the officer, I think, also, that it would not be going too far to say, that as that word is used in the statute, it would import that he received it as a sufficient bond.

But in this complaint there is no averment that the bond was delivered to the officer; that he ever saw it; that he approved of the security; that the steps were taken by the owners upon which it became the duty of the officer to discharge the warrant; that such warrant has been discharged, or that the vessel has ever been released from custody, or that the defendants ever obtained the benefit contemplated by the execution of the bond.

If, therefore, this complaint cannot be sustained without showing that the statute has been complied with, the demurrer must be sustained.

But I think that the complaint may be, and must be, sustained upon another ground. There is no sufficient objection to the bond, as a voluntary undertaking under seal by the obligors to pay to the obligees “ the claims and demands exhibited, which should be established to have been subsisting liens upon the vessel.” Such payment is made the condition of the bond. The seals to the bond import consideration, and of course consideration enough to sustain the bond as a valid, binding security to the plaintiff. The statement in the complaint of the occasion of the execution of the bond does not affect the sufficiency of the consideration thus implied in the sealing and delivery, although that statement shows the motive and object for which it was executed and delivered. Prima facie, the bond is valid and binding. If, in truth, after it was received by the plaintiff, the purpose and object of the bond was defeated, and the vessel was still detained, that must (if it be any defence) be set up by the defendant.

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I think the demurrer to the complaint should be overruled, but with leave to the defendant to withdraw the demurrer, and answer the complaint within ten days, upon the usual terms. Ordered accordingly.