Bryan v. Steamer Enterprise, 53 N.C. 260, 8 Jones 260 (1860)

Dec. 1860 · Supreme Court of North Carolina

53 N.C. 260, 8 Jones 260

ELIAS BRYAN v. THE STEAMER ENTERPRISE.

Where an attachment was sued out against the owner of a vessel, under the 27th and 28th sections of the 7th chapter of the Revised Code, it was held that a prosecution bond, made payable to the “ owner” of the vessel, by that description, was sufficient.

The 6th section of the 7th chapter of the Rev. Code, authorising the sale of perishable articles levied on under an attachment, applies only to cases of original attachment, and not to those against vessels authorised by the 27th and 28th sections of the 7th chapter of the Revised Code, and it was held, therefore, that a sale, by the sheriff, of a vessel so- levied on, under 'this act, was void, and did not discontinue the suit.

This was an attachment under the statute, Revised Code, chapter 7, sections 27 and 28, to subject a vessel to the payment of a debt for work done by plaintiff on said vessel, tried before Bailey, J., at Spring Term, 1860, of Chatham, Superi- or Court.

The following is a copy of the affidavit and the prosecution bond :

“ State of North Carolina, Chatham county.

“ Elias Bryan, maketh oath before me, one of the justices Of said county, and State aforesaid, that the steamer Enterprise is indebted to him in the sum of one hundred and ninety dollars and forty-seven cents, to the best of his knowledge and belief, for work and labor done upon, and provisions furnished to the steamer Enterprise.

Sworn to and subscribed before me, this the 6th of August,, ■. 1857.”

“State of North Carolina, Chatham county.

“ Know all men by these presents, that we, Elias Bryan and John W. Scott, are held and bound unto the owner of the steamer Enterprise, in the sum of three hundred and eighty dollars and ninety-five cents, to be paid to him, his heirs, executors, administrators and assigns. The condition of the above obligation is such, that, whereas the above bounden Elias Bryan, hath this day prayed an attachment in his favor, against the steamer Enterprise, for the sum of one hundred and ninety dollars and forty-seven cents, and hath obtained the same, returnable to the Superior Court of Law, to be held at the court-house in Pittsborough, on the third Monday of September, 1857. Now, if the said Bryan shall prosecute his said suit with effect, or in case he fail therein, «hall well and truly pay, and satisfy to the said defendant all such costs and damages as shall be recovered against said plaintiff, his heirs, executors and administrators, in any suit or suits, whieh may be hereafter brought for wrongfully suing ■out said attachment, then, this obligation to be void; otherwise to remain in full force and virtue.”

The attachment issued, and the sheriff returned it with an endorsement thereon, setting out that he had levied the same upon the steamer Enterprise, and that the vessel having remained in his possession for thirty days unreplevied, he had, upon the certificate of three freeholders, that the said vessel was perishable property, sold the same to the highest bidder.

■Upon the return of the writ and bond to the Superior Court at Pali Term, 1858, one William P. ElEott, intervened for his interest in the vessel, and filed a plea in abatement, praying to have the attachment quashed, for the reason, that the same u had been issued -without bond taken and returned according to the provision of the act of Assembly in such cases-made and provided.”

To this plea, in abatement, there was a replication by plaintiff,-setting out the -substance of the above recited -bond.— There was a demurrer t® -the replication and a joinder in demurrer by the plaintiff.

Upon the argument, it was adjudged by the Court, that ihe demurrer -be sustained, the plea held good, and attachment quashed. Plaintiff appealed to this Court.

Cantwell and Ilowze, for the plaintiff.

Phillips, for the defendant

Battle, J.

The last two sections of our attachment law, as contained in the 7th chapter of the Revised Code, were intended to give a lien “ on any ship, steamboat or other vessel, for or on account of any work done, or materials furnished, &c,” in favor of those who might do the work, or furnish the materials, &c., and to provide the mode of proceeding, by which that lien should be made effectual; (see Rev. Code, chap. 7, sections 27 and 28). Among the provisions, for this end, it is declared that any creditor, who intends to avail himself of the remedy, shall, by himself, or his agent, or attorney, before suing out his attachment, “ first verify his debt, and the manner in which it was contracted, by affidavit, and shall enter into bond, conditioned, for the indemnity of the defendant, in the manner provided by law.” The plea, in abatement, put in by the owner of the steam-boat, who inter venes to protect his interest, brings up for consideration the question, as to whom this bond, for the indemnity of the defendant, shall be made payable.

It is manifest that the proceeding, under this statute, is one m rem, and we, accordingly, so held it to be in the case of Cameron v. The Brig Marcellus, 3 Jones’ Rep. 83. It is equally clear, that the owner of the vessel or steam-boat, or any other person claiming an interest in her, may intervene and have himself made a party defendant, for the purpose of protecting that interest, as we held in the same case. The person who came in and was made party in this case, contends that fie is the proper defendant, and that the bond, which the plaintiff gave, upon taking out his attachment, should not have been made payable “ to the owner of the steamer Enterprise,” but “ to the defendant,” or perhaps, more properly, “ to the person who shall become defendant.’'" It is very certain that the bond cannot be made payable to any particular person by name, because the proceeding being in rem, there is no such person to receive it, or for whom the magistrate, who issues the attachment, can accept it. To make it payable, as contended for by the defendant, involves a technical difficulty, which, if possible, ought to be avoided. A bond being a deed, or instrument under seal, must b© made to some obligee, to whom, or for whom, it may be delivered ; Marsh v. Brooks, 11 Ire. 409; Latham v. Respass, Busb. Rep. 138 ; Gregory v. Dozier, 6 Jones’ Rep. 4. Now, in a case like the present, the bond, when it is given, cannot be made to “ the defendant” as a certain obligee, because there is no defendant, who can be described by his Christian and surname, or simply by the description of “defendant.” But there is always some person who is the owner of the vessel or steam-boat, and to him, by the description of “ owner,” the bond may be made payable, and for him the magistrate may accept the delivery of it from the plaintiff. Should the absolute owner intervene, he may, of course, have a remedy on the bond, in case of its breach, and we think that any person, who can show a sufficient interest in the vessel or steam-boat, to be permitted by the court to intervene for that interest, will be taken to be “ the owner,” for the purpose of a remedy on the bond. Our opinion then is, that the plea, in abatement, cannot be sustained.

But the defendant, through his counsel, has raised an objection in the argument here, that the plaintiff’s action was discontinued by the sale of the boat, upon the ground, that the thing attached being gone, there was nothing to keep the case in Court. "We are satisfied, that the 6th section of the attachment law, which provides for the sale of perishable articles, applies only to cases of original attachment, and not to those against vessels and steam-boats, authorised by the 21111 and 28th sections of the act. The sheriff, therefore, had no authority to sell, and his sale was, consequently, null and void, and left the boat in the same condition in which it was before. It does not appear that the sale was made at the instance of the plaintiff, but if it had been, it could not, being void, have the effect to discontinue the proceeding. The judgment must be reversed, and a procedendo issued.

Per Curiam,

Judgment reversed.