Finney, Lee & Co. v. Steamboat Fayette , 10 Mo. 612 ( 1847 )

Scott, J.,

delivered the opinion of the Court.

On the 2nd February, 1842, the plaintiffs in error commenced proceeding in the Court of Common Pleas of St. Louis county, against the steamboat Fayette, for the purpose of recovering a claim for supplies furnished said boat. The last item of the account bore date on the third November, 1841.

The defendant in error, by D. C. Alexander, representing himself as the owner of, said boat, filed two pleas to the plaintiffs’ demand, which being substantially the same, only one of them is copied. The 2nd plea was as follows:

“And for further plea in this behalf, the said David C. Alexander says, that the said plaintiffs ought not to have and maintain their aforesaid action against the above named defendant, because he says, that by an act of the Legislature of the State of Illinois, one of the United States of America, entitled “An act authorizing the seizure of boats and other vessels by attachment in certain cases,” it is provided, among other things, that the wages of marinéis, boatmen and others, employed in the service of such boats and vessels as run upon the navigable waters within the jurisdiction of said State, shall have preference over all other debts due from the owners and proprietors, and shall be first paid; and it is also further provided by said act, that any person having a demand contracted for wages as a boatman, may have an attachment, to be issued by any justice of the peace having jurisdiction thereof, against such boat or vessel, in any county where such boat or vessel may be found., which said attachment may issue against such boat by name only, and shall authorize and direct the seizure and detention of the same, with the engine, machinery, sails, rigging, tackle, apparel and furniture. And the said Alexander saith that one George Thurston, to-wit: on the fourth-day of December, 1841, in the county of Tazewell and State of Illinois aforesaid, had a just and legal demand against said steamboat Fayette, which accrued on account of wages as a boatman on said steamboat Fayette, and that the demand of the said Thurston was within the jurisdiction of a justice of the peace in the said State of Illinois. And the said Thurs-ton, heretofore, to-wit: on the 4th day of December, 1841, at the county of Tazewell aforesaid, sued out an attachment from a justice of the peace, duly and legally commissioned and acting as a justice of the peace, within and for said county of Tazewell, against the said steamboat Fayette, and prosecuted said attachment suit to final judgment against said boat, and the same was by a legal order or execution of the said justice of the peace issued upon said judgment, sold by the constable of said Tazewell county, according to the laws of the State in such case made and pro-, vided. And the said Alexander became the legal purchaser thereof, and the same was delivered to him at such sale; all of which will more fully and at large appear by the record and proceedings in said justice’s court still remaining, and which are in the words and figures following, that is say: George Thurston vs. Steamboat Fayette; suit commenced by at-attachment, December 4th, 1841; debt $34 34, on a note for services or wages on board the said boat as watchman and deckhand.. Attachment issued on complaint in the following words, (to-wit:) State of Illinois, Tazewell county, ss. This day personally appeared before the undersigned, a justice of the peace in and for said county, George Thurston, who, after being duly sworn, deposed and saith, that the steamboat Fayette is indebted to him for wages while he was employed as boatman on board and in the service of said boat in the capacity of watchman and deck hand, in the sum of thirty-four dollars and thirty-four cents, and prays an attachment against [said boat.] Sworn to and subscribed before me, this 4th day of December, 1841. Geore Thurston. [Seal.] Alden Hall, J. P. And after plaintiff entering into the following bond, to-wit: Know all men by these presents, that we, George Thurston and David C. Alexander, are held and firmly bound unto the people of the State of Illinois, for the use and benefit of the owners of the steamboat Fayette, who may-institute a suit hereon, in the penal sum of seventy-eight dollars and sixty-eight cents, for the payment of which we bind ourselves, our heirs and assigns, firmly by these presents. The conditions of this obligation is such, that whereas the above bound George Thurston hath, on the day of the date hereof, prayed an attachment at the suit of him, the said George Thurston, against the steamboat Fayette, for the sum of thirty-four dollars and thirty-four cents, lawful money of the United States, and and the same being about to be sued out, returnable on the eleventh day-of December instant, to me, at my office in Pekin, in the county of Tazewell and State of Illinois: now, if the said George Thurston shall prosecute his said suit with effect, or in case of failure therein, shall well and truly pay and satisfy the owner or owners of the said steamboat Fayette, all such costs in said suit and such damages as shall be awarded against, the said George Thurston, his heirs, executors or administrators, in such suit or suits which may hereafter be brought for wrongfully suing out such attachment, then the above obligation to be void; otherwise to remain in full force and virtue. George Thurston, [Seal] David C. Alexander, [Seal] Taken and acknowledged before me, this 4th day of December, 1841. Alden Hall, J. P.

“Attachment issued 4th day of December, 1841, delivered to John M. Turney, constable, returnable before me at my office, in Pekin, on the eleventh day of December, instant, at 1 o’clock P. M., in the following form, to wit: State of Illinois, Tazewell county, ss. The people of the State' of Illinois, to any constable of said county, greeting: Whereas, George Thurston hath complained on oath, before Alden Hall, a justice of the peace in and for said county, that the steamboat Fayette is justly indebted to him, the said George Thurston, in the sum of thirty-four dollars and thirty-four cents, for wages as a boatman, while he was employed on board of said boat in the capacity of watchman and deckhand, and the said George Thurston having given bond and security accord-ding to the directions of the act in such case made and provided: we therefore command you that you attach the said steamboat Fayette, if the said boat be found in your county, and detain the said boat with her engine, machinery, rigging, apparel and furniture; and the said boat, so attached in your hands, so to provide and secure, that the said boat with her engine, machinery, rigging and furniture may be liable to further proceeding thereon according to law, before the undersigned justice of the peace, and make return to me of your proceedings, at my office in the town of Pekin, in said county, on the eleventh day of December instant, at 1 o’clock P. M., and have you then and there this writ, hereof fail not at your peril. Given under my hand and seal, this the 4th day of December, 1841. Alden Hall, J. P., [seal,] justice’s costs, ¡‘¡1 18. December 11th, 1841, attachment returned endorsed as follows, to wit: Served the within attachment on the 4th day of December, 1841, on the following property, to wit: The steamboat Fayette. John M. Turney, C. T. C., costs, ¿*1 00. The owners of said boat not present, and no notice having been given to them of the pending of said suit, the cause continued to the 27th inst., at 1 o’clock, P. M., and notice issued as follows to wit: Notice is hereby given to the owners of the steamboat Fayette, that on the 4th day of December, 1841, a suit was commenced by attachment, against said steamboat Fayette, by George Thurston, before the undersigned a justice of the peace, in and for Tazewell county, State of Illinois; said attachment issued for the collection of the sum of thirty-four dollars and thirty-four cents debt, said by the said George Thurs-ton to be due him from the said steamboat Fayette, for wages as a band, while employed in running said boat in the capacity of a deckhand and watchman, and was returnable before me at my office, in Pekin, in said county, on this 11th day of December, 1841; and the said attachment having been returned, served by attaching said boat, and no appearance having been entered by the owners of said boat, the cause continued to' the 27th inst., at 1 o’clock, P. M., at my office, in Pekin, in said county, at which time and place the cause will be tried, and unless you shall appear at the time and place for said trial, judgment will be rendered by default, and the said steamboat Fayette ordered to be sold to satisfy the same. Given under my hand, this 11th day of December, 1841.— Alden Hall, J. P. Notice delivered to John M. Turney, constable, returned endorsed as follows, tb-wit: The within notice not served;. John M. Turney, C. T. C. Pekin, December 27, 1841. Cause continued to the 5th day of January next, 1 o’clock P. M., and notice issued to the owners of said boat and delivered to John M. Turney, constable, as follows to-wit: Notice is hereby given, to the owners of the steamboat Fayette, that on the 4th day of December, 1841, a suit was commenced by attachment against said steamboat Fayette, by George Thurston, before the undersigned a justice of the peace, in and for Tazewell county, and State of Illinois. Said attachment issued for the eollection of the sum of thirty-four dollars and thirty-four cents debt, said by George Thurston to lie due him from said steamboat Fayette, for wages as a hand, while employed in running said boat, in the capacity of deckhand and watchman; that the said attachment was returnable •before me, at my office, in Pekin, in said county, on the 11th day of December, 1841; and the said attachment having been returned served, by attaching said steamboat Fayette, and no appearance having been entered by the owners of said boat, the cause was continued to the 27th day of December, 1841, at 1 o’clock, P. M., at my office, in Pekin, in said county; and notice issued to the constable, notifying the owners of said boat of the time and place of trial, which notice has been returned by the constable without service, and the cause adjourned to the fifth day of January next, at 1 o’clock, P. M., at my office, in Pekin, in said county; •and unless you shall appear at the time and place of trial, judgment will be rendered by default, and the said boat ordered to be sold to satisfy the same. Given, under my hand, this 27th day of December, 1841.— Aldea Hall, J. P. Notice returned endorsed as follows, to wit: Executed by putting up three copies of the within notice, December. 28, 1841, as the law directs. John M. Turney, C. T. C. Costs, #0 75. January 5, 1842. Plaintiff appeared, and no appearance having been entered on the part of the owners of the steamboat Fayette, plaintiff claimed on a note in the following form, to wit: Due George Thurston from steamboat Fayette, thirty-four dollars, for value received. St. Louis, Oct. 9, 1841. $34. 00. C. F. Speyer, Cl’k. S. B. Fayette. And after hearing the proof and allegations of plaintiff, judgment is rendered against the said steamboat Fayette, for thirty-four dollars and thirty-four cents debt, and costs of suit.

Debt on note, $34 34

Costs of justice, 1 18

Do. continuance and note, 37 1-2

Do. do. do., 37 1-2

Swearing one witness, 6 1-4

Witness fees, J. Alexander, 50

Const, fees, J. M. Turney, 1 75

Order of Jan. 1842, delivered to J. M.

Turney, constable, 25

Order of sale issued Januarj- 5th, 1842, in the following form, and delivered to John M. Turney, constable, to~wii: State of Illinois, Tazewell county. The people of the. State of Illinois, to any constable of said county, greeting: Whereas on the 4th day of December, 1841, George Thurston did commence a suit before the undersigned, a justice of the peace, in and for said county, by attachment against the steamboat Fayette, which attachment was returned, served by attaching said boat on the 4th day of December, 1841, returned on the 11th day of December, 1841, and judgment in said cause having been rendered in favor of the said Geoi’ge Thurston against the said steamboat Fayette, for the sum of thirty-four dollars and thirty-four cents, and four dollars and forty-eight cents costs. You are therefore ordered to make sale according to law, of said boat, or so much thereof as will satisfy the judgment and all costs of suit, and make due return. Given under my hand and seal, this 5th day of January, 1842. Alden Hall, J. P., [seal.] Order of sale returned endorsed as follows, to wit: Served on the steamboat Fayette, Jan. 5, 1842. John M. Turney, C. T. G. After legal notice the above named property was sold on the 15th day of January, 1842, for the debt and costs of the within named; and D. C. Alexander was the purchaser. Jan. 15, 1842. John M. Turney, C. T. C. Costs of sale, $3 50. By means whereof, and by force and virtue of the aforesaid legal proceedings in the said State of Illinois, the said D. C. Alexander became, and was the legal owner of the said steamboat Fayette, and all her appurtenances aforesaid, and the said boat became thereby discharged and released from the debt or demand, in the said plaintiff’s declaration mentioned, and this the said Alexander is ready to verify, &c. Leslie & Hunton.”

To this plea there was' a demurrer, which being overruled, the cause was brought here by writ of error.

This case is similar in principle to that of the steamboat Raritan vs. Smith, decided at the present term of this Court. It was there determined that the rules of the maratime law', w'ere in proceedings against steamboats to govern, when there was a failure of statutory regulations. Maratime liens in respect to the mode in which they may be discharged, vary from other liens. A judicial sale will divest them, in whatever jurisdiction it may be decreed.

As to the argument that the statute of Illinois does not enact, that the demand under which the boat was sold, should be alien upon her, it may be answered, that in the construction of the priority laws of the United States, it has been decided that under them a lien attaches at the commencement of a suit. U. States vs. Hooe, 2 Or., 84. The law of Illinois gave a demand of the character of that stated in the plea, preference over all debts, and directed that it should be first paid.

The other Judges concurring, the judgment will be affirmed.