*163
By the Court.
Nisbet, J.
delivering the opinion.
The Act of 1841, which allows liens to certain persons employed on board steamboats and other water-craft, engaged in the navigation of certain rivers, is in derogation of common right, and must be construed strictly. So construed, those who institute proceedings under it, are to be held in the pleadings to 'bring themselves within all its conditions. All the exceptions taken in this case but one, depend upon this requirement. Our duty is, therefore, chiefly by a comparison of the affidavit of the petitioner for the lien, with the Act, to determine whether, in the particulars specified in the assignment, the defendant in error has brought himself within its provisions.
[1.] It is claimed as error in the Court below, that it was held that the affidavit of the defendant did sufficiently set forth that the services claimed to have been rendered, were rendered on board the Magnolia, whilst engaged in navigating the Flint river. The Act requires that the person suing out the lien, shall be employed on board the boat navigating and running on the river. The affidavit states, that the owners of the steamboat Magnolia, a craft navigating Flint river, are indebted to them, &c. We hold this sufficient. The construction of the plaintiff in error is, that the services must be rendered on board the boat whilst in the act of traversing the river. We do not think so, but believe that the language of the Act relates to boats, &c., engaged, as a business, (for a season for example,) in navigating the river, and applies to them, whether in motion, or at rest temporarily. And in this particular we sustain the Court below.
[2.] The 2d objection to the pleadings is, that It does not appear from them, that the claim was prosecuted within twelve months from the time it fell due. The presiding Judge overruled this objection, and thereon exception is taken.
The Statute requires the claim to be prosecuted within twelve months from the time it Is due, and the affidavit is silent as to this matter, but refers to a bill of particulars, which it is said is to be taken as part and parcel of it, and from which, it is said, it appears that the proceedings were instituted within twelve months from the time the claim was due. We hold the account referred So as part of the pleadings, and if it showed the required fact, the *164objection would be well answered. But it does not; that is, only in part. One of the divisions of the account current, it appears, bears date less than twelve months earlier than the date of the institution of the proceedings. That part of the account amounts to some six hundred dollars. As to that sum, so far as this exception is concerned, the proceedings comply with the Statute; as to the remainder of the claim, they are insufficient.
[3.] The 3d exception is taken upon the refusal of the Court below to sustain this objection to the affidavit, to wit: that it does not show that a legal demand was made upon the owners of the boat. The law requires that a demand should be made for the debt, upon the owners of the boat; and the affidavit states that demand was made upon the owners of the boat, and also upon her captain, Albert G. Butts. The objection goes upon the ground, that there ought to be a personal demand upon the owners or their agent, and that the affidavit ought to state that it was so made, and name the owners or the agent. We think the objection well taken.
The Statute is very stringent against owners. The proceeding is summary, and partakes very much of an ex parte character. ' The right of defence is limited. The owners are not served with process — are not notified to appear and defend. The only substitute for this is, the demand which is required as a preliminary step to taking out the proceedings. It ought, therefore, to be a personal demand upon the owners or their agent, and who they are, or who he is, ought to appear. The averment as to the demand, ought to be stated in such form, with such distinctness that an issue may be formed on it. We therefore sustain this exception.
In connection with'this exception, I consider another, which is foundpd on the refusal of the Court below to sustain this objection to the affidavit, to wit: that it contains no averment that the owners refused to pay upon demand. The Statute makes the demand and refusal preliminary to the suing out the proceeding to recover the debt, and the affidavit says nothing about it. Demand alone is not enough. The Statute makes the right to the lien to depend upon a refusal, and that must be averred. For aught that is apparent from the pleadings, the owners of this boat were not only willing, but importunate, to pay, and that the proceed*165ing against them is merely vexatious. It is enough to say, however, that the Statute requires a demand and refusal.
[4.] The 5th exception is to the judgment of the Court, that it was not necessary for the judgment to be entered up against the owners as well as the boat. We think it is necessary, because the Act makes it necessary. After the judgment is taken, the Clerk is required to issue execution against the oumers and also against the boat. Execution must be founded on a judgment.
[5.] The Court ruled the affidavit sufficient as to the averment that the boat had arrived at a landing, port or place of destination to which it was freighted, and that is excepted to. In relation to this matter, the affidavit sets forth, that the boat “had discharged her freight and laid up at or near Rope Work Shoals, on said Flint river, in the said county of Baker.” The Act authorizes proceedings against the boat and her owners, “in any County in which said steamboat or water-craft may then lie, upon the same arriving at the landing, port or place of destination to which the same has been freighted’’ The affidavit does not, in this particular, conform to the Statute. It should have stated that the place at which she had laid up, and where she had discharged her freight, was either the landing, the port, or the place of destination to which she had been freighted. There.is a reason for this. The Legislature, no doubt, intended by this provision to prevent the stoppage of the boat in passing. A power in any boat-hand, captain, pilot, engineer, first or second mate, fireman, or any other person employed on a steamer, to arrest her in any County, whilst passing to her place of destination, would be not only oppressive to owners, but unjust to the owners of freight, and in restraint of navigation and commerce. The place at which this boat is stated to have laid up, may or may not have been her place of destination. She may have stopped and discharged her freight temporarily, from low water, or some other of the causes which are well known to hinder the navigation of our smaller streams. In this regard, we think the Court was in error.
[6.] A motion was made in the Court below to amend the pleadings in this case, and the Court said the petitioner could amend any and every defect, even to the extent of substituting an entire new affidavit, petition, &c. This was after judgment, and pending a motion to set it aside. I know of no proceeding in Law or *166Equity where the doctrine of amendment can be carried to this extent. Let the judgment be reversed.