Raymond v. Whitney , 5 Ohio St. 201 ( 1855 )

Brinkerhoff, J.

The fifth section of the act referred to in the statement of the case is as follows:

“ That the owner, master, steward, consignee, or other agent of such steamboat or other water-craft, may discharge the property seized, upon entering into bond to the officer taking the same, with two good and sufficient sureties, within the county where such craft may have been seized, in double the amount of the demand sworn to be due by plaintiff, agent, or attorney, conditioned that such property, or double the amount sworn to be due by plaintiff, agent, or attorney, shall be forthcoming to answer the judgment under such seizure.”

It must be admitted, that this statute is, in many respects, obscure and indefinite, leaving a wide scope for judicial construction, and making, in the course of proceedings under it, frequent and large demands for its exercise. We are free to say, we have felt the difficulties thus presented, and, after most diligent endeavors, have been embarrassed with doubts in all our attempts to arrive at conclusions satisfactory to our own minds. But, while the legislature shall leave the act in its present obscurity, we must deal with it as best we may.

The first question presented for our determination in this case is, whether, after the seizure of the craft, and its redelivery to the owner after bond executed as provided for in the fifth section, the officer making the seizure retains, for the benefit of the plaintiff and the sureties in the bond, a lien on the craft and a right to reclaim the same, as against prior creditors making subsequent seizures, so that the same may be “ forthcoming to answer the judgment under such seizure;” or, whether such redelivery is an absolute and complete discharge of the craft, leaving the plaintiff no remedy except on the bond taken by the officer to himself; the sureties no resource but the integrity and pecuniary responsibility of their principal; and the craft itself open and unincumbered to any subsequent seizure of a prior creditor.

The former proposition -would assimilate the proceeding to that of an ordinary delivery of property to the debtoi;, or a third person, by an officer making an ordinary levy under an execution on an ordinary judgment. Wadsworth v. Parsons, 6 Ohio Rep. 449; Ohio for use of Smith v. Fuller et al., 16 Ohio Rep. 545 ; 18 Conn. 1. The latter would render it analogous to proceedings in admiralty, under the act of Congress of March S, 1847. We are of opinion that the former proposition embodies the true construction of the act; and that the word “ discharged ” in the said fifth section, implies no more than the discharge of the craft from the actual manual custody, for the time being, of the officer. And this for the following reasons:

1. The condition of the bond authorized by the said fifth section, is substantially similar to a bond authorized to be taken by an officer making an ordinary levy, and leaving the property seized in execution, in the custody of the judgment debtor; the bond alike in both cases being conditioned for the forthcoming or delivery of the property, and not for the payment of the debt; while the bond authorized to be taken by a marshal, under the act of Congress referred to, is conditioned for the payment of the debt; or, in the words of the act, “ to abide and answer the decree of the court in such case; and such bond or stipulation shall be returned to the said court, and judgment on the same, both against the principal and sureties, may be rendered at the time of rendering the decree in the original cause.” Conkling’s U. S. Admiralty 446.

2. The tenth section of the act under which these proceedings were had, provides that after “judgment rendered, the owner or owners,” etc., “ may appeal from such judgment on entering into the required bond or recognizance, as in-other cases of appeal; and on such appeal being perfected, the officer who may have seized such property, shall restore the same,” etc. Now, “ the required bond or recognizance, as in other cases of appeal,” is conditioned for the payment of the debt or claim to be adjudged, as in cases in admiralty, and works an absolute release in all cases of the property seized or attached — the remedy on the appeal bond serving as the legal substitute for liens acquired by preceding process. And it will be observed that the word “ restore ” is here used, and not the word “ discharge,” as in the fifth section, and the same word is also used in the sixth section,directing the re-delivery of the property to the owner, in case of judgment in favor' of the craft; thus indicating either that the legislature intended to employ the latter in a much more restricted and less comprehensive sense than the former, or else that it was so very careless in the selection of its phraseology, as fully to justify the application of the last reason we shall assign for the construction we have adopted.

3. Again : This construction seems to be necessary, in order to harmonize the fifth section-with the theory of subsequent proceedings under the act, and save them from apparent absurdity. To illustrate: Suppose the craft to be duly seized and discharged by forthcoming bond, as in this case. Suppose the casé proceeds to judgment, which judgment being in rem, is against the craft by name, and against it alone, and that execution ordering a sale of the craft, and which is the only final remedy known to the proceeding, issues. Suppose, further, that the craft is not delivered to the officer either by owner or sureties, but remains in their custody, in the bailiwick of the officer holding the execution, and actually under his eye and within his reach. Now, under these circumstances, cannot the officer retake the craft, and proceed to expose her to sale, either for the payment of the plaintiff’s claim, or for the reimbursement of the sureties ? He cannot, if the discharge under the bond was an absolute discharge ; and the process in his hands, though fully capable, as a matter of fact, of efficient execution, is, by the construction of law, divested of all life and practical energy whatsoever ; and the plaintiff is turned over to seek, by a new suit, such remedy as he may have on a bond given to the officer. But in a proceeding in admiralty under the act of Congress, this inconsistency is avoided; as that act, as will be seen from the clause quoted, authorizes judgment on the bond, against both principals and sureties, at the same “ time of rendering the decree in the original cause.”

Finally. We believe that general equity, and especially the safety of innocent sureties, who are always favorite subjects of legal protection, will be best subserved by the conclusions to which we have arrived.

We are next to determine whether a judgment rendered under the first seizure, may, in a proceeding in chancery instituted by the plaintiff and sureties for the assertion and protection of their own priorities of lien, as against creditors making subsequent seizures, be impeached for fraud and collusion between the plaintiff and the owner of the craft, in the obtaining of said judgment, and with a view to defeat the remedies of other creditors. We think it may. A judgment of a court having full jurisdiction of the parties and of the subject matter, and remaining in full force, is conclusive as against parties and privies. But the defendants to this bill, and complainants in the cross-hill, were neither parties nor privies to the proceeding against the boat, and they never had a day in court. It is contended, however, that counsel for the complainants in the cross-hill, appeared in behalf of the boat on the trial in that proceeding, and that, for this reason, the judgment should conclude the complainants in the cross-bill. We are not of that opinion. The circumstance may he competent evidence on the question of fraud and collusion in obtaining the judgment, but is not, in law, conclusive of that question.

Waiving the question as to whether the facts stated in the original bill of complainants entitled them in chancery to the relief sought, we think that, as all the parties are now before the court, and as the proceedings and rights of the parties since the filing of the original bill, have become somewhat complicated, the case ought to be permitted to proceed to a final determination of their rights and claims in the premises.

But here were two sales, the plaintiff being the purchaser in both, and having, between the sales, expended money in the repair of the craft. Which sale shall stand ? and if the latter, shall the plaintiff be reimbursed out of the proceeds of sale, for his repairs ? Inasmuch as the irregularity of the prior sale arose from no fault of the purchaser; as the repairs were made in good faith, and were in themselves proper to be made; and especially as the last sale was an advantageous one for the owners and their creditors, having produced, after deducting the amount claimed for repairs, a larger sum than the first sale, we are of opinion that the claim for repairs ought to be allowed.

The case will be remanded to the district court for the determination of the questions of fact raised by the cross-bill, and for decree accordingly, on the principles here indicated.