Williamson v. Brooks , 3 Ala. 32 ( 1841 )

COLLIER, C. J.

The monition required by thefiat of the Judge, was genera], and addressed to all the world, so that all persons who were interested in resisting the lien upon the boat set up by the libel, might be advised of its pendency. Its object was not to protect' the claimant and his co-stipulator from personal liability to the libellant’s demand, but to prevent the boat from being subjected to its satisfaction, in despite of the paramount liens of others. (Dunlap’s Ad. Prac. 133.) Now the lien of the libellant was discharged as soon as the claimant intervened and entered into the stipulation. (See 4th sec. of Act of 1824, Aikins Digest, 390. Richardson, et. al. v. Cleaveland & Huggins, 5 Porter’s Rep. 268; Livingston, et. al. v. steam-boat Tallapoosa, 9 Porter’s Rep. 116.) This being the case, there was no conflicting lien in controversy; no person was to be benefitted or prejudiced by making monition, as directed by the order of seizure. The Judge, had he thought proper, could have made his order conditional, directing monition to be made, only in the event, that no claimant intervened and entered into stipulation; and having made it absolute in its terms, that cannot be made indispensable, which otherwise would be wholly immaterial.

The purpose to be effected by monition being superseded by the stipulation, the County Court erred in dismissing the libel; consequently its decree is reversed, and the causrPremanded,