Citation Numbers： 19 Abb. Pr. 50
Judges： Olbeke
Filed Date： 1/15/1865
Status： Precedential
Modified Date： 1/12/2023
The application, upon which the warrant in this matter was granted, contains substantially all that the act of 1862 requires.
It contains the amount and items composing the debt; it states by whom and when it was contracted, and in the verification states that the amount is justly due over and above all payments and deductions or discounts.
It states, indeed, that the debt was contracted by the owners of the vessel without specifying their names. It is, certainly, better to specify the names, if they are known to the applicant; but I do not think the omission a fatal defect. The specification of items accompanying the application, when first presented, omitted the year. This was a mere clerical inadvertence, which_ could in no respect have misled any one; and it was afterwards amended by the judge who granted the warrant.
The counsel for the owners of the vessel contends, that a specification of items should have been filed prior to the application; but it is evident, on referring to section 2 in connection with section 5, that the prior filing of a specification is only required whenever the vessel has left the port at which the deht was contracted. The act in no other case requires such filing;
' It would be just as improper to file a specification prior 1¿o the application, and to state such filing in the application when the vessel had not left the port, as to refer to an assignment or transfer of the debt when such had not taken place since the debt was contracted. As to the fact of the departure, I think . there is no sufficient evidence of it even now before me.
The undertaking presented at the time of the application was, in one particular, defective.
It does not make the obligors liable if the applicant should not prosecute within three months any bond which may be given upon the discharge of tlje warrant, as provided for by section 12 of the act; but the power of amendment in such cases is .very fully and specifically given by statute. (2 Rev. Stat., 556; same stat., 3 Rev. Stat., 5 ed., §§ 35, 36.)
The obligors, as the latter section provides, have made application to amend' the bond, and have submitted one for approval. The bond, when properly amended/shall, in the words of the statute, “ be deemed valid from the time of the execution thereof.” t
Two warrants have been issued in this matter,—one to the sheriff of Kings county, the other to the sheriff of the county of New York, in order to have the vessel seized in whichever county she may be, there being some doubt of her precise position in this respect. It appears now that she has been the whole time within the limits of the county of New York, but the sheriff of Kings county has' seized her under the belief that she was within his baliwick. The authority of a sheriff is confined to his own county. It has been held, indeed, that he may perform certain ministerial acts out of his county, as to make a panel or return, a writ, but he cannot execute a writ ©r warrant out of it. The mistake of the sheriff of Kings in this matter was made in consequence of the impression that, as the vessel lay near to the shore of Kings county, she was within its legal limits. Of course such a mistake would make him liable only for nominal damages at most; but if she is within the limits of the county of New York, as seems to be conceded, she can only be seized by the sheriff of that county, and the sheriff of Kings cannot retain her under any pretext.
In the amended bond reference is made to the 11th instead of the 12th section. This must be corrected. Indeed, if the necessary number of months is mentioned, there is no need of a reference to any particular section.
The amended bond, when corrected, must be again submitted to" me.