RICHARDSON, et al. VS CLEAVELAND & HUGGINS, 5 Port. 251

GOLDTHWAITE, J. Cleaveland and Huggins, filed a petition in the County Court of Mobile county, alledging, “they had furnished stores, provisions, merchandise and materials, to the steam boat Ophelia, to the value of fifteen hundred and five dollars and eighty-eight cents, that the amount of their account for these articles, furnished by them, is justly due them by the owners and master of the said boat and has never been paid.” They further represent, “that the .steam boat is commanded by Sardine G.

Stone, that she is, as they believe, duly enrolled, registered and licensed, that she has been employed in navigating the rivers of Mobile bay; that the said articles were furnished at the special request of the owners and mas-> ter of said boat, at Mobile, and at divers times, from the seventh day of January, in the year eighteen hundred and thirty-five, to the twentieth of April, in the year eighteen hundred and thirty-six, as per ,.tlie'account now filed.

And further, they represent, “that the said boat is about to leave the port of Mobile; and that neither the master or owners reside in Mobile.” The petition prays process to issue for the seizure of the said boat, in the nature of admiralty process, according to the form of the statute in such case made and provided, so that the said vessel be made answerable for the payment of the debt so due, and all costs.

The facts stated in the petition, were verified, by the affidavit of one of the petitioners, and the Judge of said Court by his fiat, directed admiralty process to issue, according to the prayer of the petition, returnable to the second Monday of June, eighteen hundred and thirty-six. Process was issued against the boat, her tackel, apparel and fur-niturer which were seized by the sheriff, and released by him on the order of the clerk of said Court, that bond had been given according to law.

On the fifth of May, eighteen hundred and thirty-six, John Richardson, Edward Sims and Rucker Redding, entered into bond, payable to the plaintiffs, in the sum of three thousand dollars, — the condition of which recites, “that whereas Cleaveland and Hoggins, had filed in the County Court of Mobile county, process in the nature of a libel, in admiralty proceedings, against the steam boat Ophelia, of which said John Richardson is owner, for goods, wares and merchandise, and supplies, furnished by them to said boat, to the amount teen hundred and five dollars and eighty-eight c^fiti.- ¿i/: Now, if the said John Richardson, shall well and truly, answer the demand so filed as aíbresa|tkÍMnSlilÉ€ this obligation to be void.” V A citation and monition to all. persons, jpkften ing to have an interest in the said boat, was sued, but no return appears on the record.

On the twenty-third day of June, eighteen hundred and thirty-six,' an appearance was made in the following terms: “Came the plaintiffs by their attorneys, and also came John Richardson, professing to be owner and proprietor of said steam boat, Ophelia, ” who moved the Court by .his attorneys, “ to quash the libel aforesaid, and to dismiss the whole proceedings, upon the ground of a want of jurisdiction in the Court, and because the proceedings were unauthorised by any statute of the State.” The motion was overruled, and Richardson then making it appear to the satisfaction of the Court, that he was the owner of the steam boat Ophelia, offered to fde an answer to the libel, in writing, which he then produced, denying most of the allegations : This answer, was on motion of the libel-ants, rejected, for the reason that it was not vere-fied by the oath of the claimant The Court then proceeded to determine the cause, without the intervention of a jury, this course being agreed to by the claimants and libelants, — and awarded the sum of one thousand and twenty-five dollars and sixteen cents, to the libelants, decreeing that they had a lien on the boat for that sum, and condemned the said boat, her tackle, apparel, engine and furniture, for the payment of the said sum and the costs of suit.

The Court also, after reciting that Richardson, as the owner of said boat, had entered into stipulation with Sims and Redding as sureties, by means whereof the boat had been released, so that she could not then be had, for the purpose of sale, under the condemnation, aforesaid, proceeded to decree, that Richardson, Sims and Redding, pay the said sum so ascertained to be due, and the costs of suit, and that the libelants should have execution against them.

To reverse this judgment, Richardson, Sims and Redding, have sued out a writ of error to this Court, and have assigned the following as reasons for a reversal. 1st. The Court erred in not quashing the libel. 2nd. Im not receiving the answer of Richardson. 3d. In rendering judgment against the securities in the replevy bond, and— 4th. In condemning the boat, her tackle, &c. for the debt.

On the first assignment of error, the constitutionality of the acts of the legislature conferring jurisdiction on the County Court,' to proceed in cases of this nature, has been drawn in question, as well as the technical accuracy of these proceedings, under those acts. The questions will be separately examined. 1. The acts of eighteen hundred and twenty-four, and that of eighteen hundred and thirty-six, are the only enactments on which the libelants rest their cause, and in order correctly to understand the points which are raised, it may be necessary to recite so much of them as bear on the case. The first

section of the act of eighteen hundred and twenty-four, provides, that all ships, vessels, steam boats and other registered, enrolled or licensed craft, built, repaired, fitted or furnished, within this State, are hereby declared to be liable and chargeable, for all debts contracted by the owners, masters or consignees thereof, for, or by reason of any work done, or materials or supplies found, provided or furnished, by any merchant, trader, ship-builder, mechanic or workman, for, upon or concerning the building, repairing, fitting, furnishing, supplying, or equipping such, .ship, vessel, steam boat, or other craft, in preference to any other debts due, and owing from the owners thereof.

Section 2. Provides, that, “it shall be lawful fur all and every of the said merchants, traders, ship. builders, mechanics and workmen, to file process in the nature of a libel, in admiralty proceedings, in the Circuit and County Courts of this State, against such ship, vessel, steam boat, or other craft, her tackle, apparel and furniture: whereupon process shall issue, and such proceedings shall be had, towards the recovery of such debts, as are usually had in the Courts of admiralty, for the recovery of mariner’s wages, and other debts actually contracted, upon the high seas.”

Section 3. Provides, “that all the description of persons named in the proceeding sections, may join in one action, and that all suits against the ship, &c. may be consolidated, and one definitive judgment given, comprehending all the debts, &c. which shall be demanded, supported either by process or petition, while one or more of such suits are pending.

Section 4. Provides, “if the master or owner, or his or their agent or attorney, will enter into stipu-ulation or bond, with sufficient securites, to answer all the demands which shall be filed against the ship, &c. the same shall be released and discharged from such lien.”

Section 5. Provides, that “no ships, &c. shall continue to be liable for such debts, longer than the time which shall intervene, between the contracting of such debts, and the time of her proceeding on her voyage next after such debts may be contracted.”

Section 6.

Provides, “that all issues at the request of either party, shall be tried by a jury; and all such issues shall be made up by the parties under the direction of the Court, — ‘-the clerks of the said Courts to have the same power in vacation, as is exercised by the clerks of the Circuit and District Courts of the United States, and shall take the bonds or stipulations as aforesaid, which shall not be void for want of form, but shall be proceeded on and recovered, according to the plain intent and meaning thereof.” The act of eighteen hundred and thirty-six, extends the lien on steam boats or other water craft, to any person who shall furnish materials, labour or stores for the use of any steam boat, &c. within the State of Alabama, on the order or by the direction of the master or clerk of the same; but provides, that if the lien shall not he enforced, on or before the first day of July next, ensuing, the furnishing of the materials, labor or stores, such-lien shall cease to exist.

The mode of enforcing the lien shall be before any Court having jurisdiction of the amount, and shall he in the nature of a libel, &c. and on an order of seizure, the boat, &c. to be taken; but the claimants of such boat may replevy, on entering into a bond with sufficient security, to pay such judgment as may be rendered on such libel — and the lien is further extended to all goods, &e. received as freight and not delivered. The objections which have been urged to the jurisdiction thus professed to be given, are founded on the first and eighth sections of the fifth

article of the constitution, and the twenty-eighth

section of the first article. If the two statutes are to be construed in pari materia, any objection based on the twenty-eighth

section of the bill of rights, must necessarily fall to the ground, as the right of trial by jury, is expressly saved at the instance of either party, by the sixth

section of the act of eighteen hundred and twenty-four, and it will become necessary to inquire, what is the true meaning of this clause in the constitution, or how far applicable to cases of this and the like character: that such is the construction universally given to statutes on the same subject matter, is a rule too well settled, now to be questioned; and the Court entertains no doubt, but that the rule is properly applicable here. The acts certainly do not contain dissimilar or repugnant provisions. The last does not attempt or profess to repeal the former, and we can arrive at no other conclusion than that both were intended to be operative and to form together one system. The first

section of the fifth article, provides that the judicial power of this State, shall be vested in one Supreme Court, Circuit Courts to be held in each county in the State, and such inferior Courts of law and equity, as the General Assembly may from time to time direct, ordain and establish. The eighth section, that the General Assembly, shall have power, to establish a Court or Courts of Chancery, with original and appelate equity jurisdiction: and until the establishment of the said Court or Courts, the said jurisdiction shall be vested in the Judges of the Circuit Courts, respectively.

It is urged that a Court, whose proceedings are according to the course of admiralty practice, must in consequence of the form of proceeding, become a Court of Chancery, within the meaning of the eighth

section before recited, and that such powers cannot be exercised by any other than the Circuit Courts, until the creation of a separate Court of Chancery. Admitting the proceedings in admiralty and equity causes to be similar, it does not follow but that the jurisdictions are entirely distinct and variant.

To illustrate the distinction between the jurisdiction, let it be supposed that money has been advanced on a valid contract, and a bottomry bond agreed to be given on a vessel — the admiralty would have no jurisdiction before the bottomry was forfeited, and equity none after-wards-, but yet a specific performance of the contract, could be decreed in equity, compelled by its process of attachment, and the admiralty would have jurisdiction alone, after the specific execution of the bond of bottomry was thus compelled. — Andrews vs Essex Ins. Co.

So without doubt, Courts of law might be invested with power to call on the parties to make disclosures of the facts of the case on oath, yet the character of the proceedings would not be changed, by the means which were used to elicit the truth.

Admiralty as well as the law must be bound by fixed and certain rules, which admit of little or no variation; but ‘‘equity is that wherein the law by reason of its universality is deficient.” It may relieve against cases of accident, surprise, confidence abused, trust.violated, and undue influence exercised; but the cases are few', if any, in which these, or similar considerations, can influence either a Court of law or admiralty in arriving at its judgment on the facts presented, and the relief against them would still have to be sought in the proper forum, a Court of Chancery. But it is said that by the second

section of the third

article of the Constitution of the United States, “all admiralty and maritime jurisdiction is vested in the Courts of the United States, and it is contended that this jurisdiction must be exclusive. It is sufficient to say that such a construction has never obtained within our knowledge, and the ablest commentators on constitutional law have held the jurisdiction of the State Courts to be concurrent in all cases, arising within the body of a county. — Danes et al. vs Newbrig.

We have therefore no difficulty in arriving at the conclusion, that the legislature has the constitutional power to confer this jurisdiction on the County Court. The technical accuracy of the libel, and its conformity with or variance from, the statutory enactments, next demand our consideration.

It is alleged, that the libelants are merchants in Mobile, that they furnished, stores, provisions, merchandise and materials to the steam boat Ophelia : that the amount of their account is justly due to them by the master and owners of said boat: that the boat is duly enrolled, registered and licensed: that she has been employed in navigating the rivers of Mobile bay: that the articles were furnished at the special request of the owners and master of said boat at Mobile, and at divers times, from the seventh day of January, eighteen hundred and thirty-five, to the twentieth day of April, eighteen hurt» dred and thirty-six: that the boat is about to leave Mobile, and that neither the owners nor master reside there.

The description of the personal character of the libelants, is sufficiently averred, as well as the description of the vessel, to bring the libel within the terms of the first statute, which would alone be necessary to meet such cases, as are not covered by the latter.

So likewise are the articles alleged to have been furnished, (or at least some of them,) within the words used by both acts; but there is some difficulty in reconciling the libel with another important requisition of the statute of eighteen hundred and thirty-six, which makes it necessary to create a lien, that the stores, &c. should be furnished for the use of the boat; nor can it be said that there is any allegation in the libel, which distinctly avers, that the materials were furnished for the building, repairing, fitting, furnishing or equipping, or that the stores were furnished for supplying, the steam boat, so as to bring the case within the words of the act of eighteen hundred and twenty-four: yet the expression used that the materials, &c. were furnished to the steam boat, and at the special request of the owners and master, would seem to be equivalent to the assertion, that they were furnished for the use of the boat; — we therefore incline to the opinion, that taking the whole libel together, no other inference can be drawn from it, than this, that the stores and materials were furnished for the use of the steam boat, at the request of, and consequently, by the direction of the master.

Tine only remaining point in relation to the form, of the libel, is the allegation respecting the time when the stores, &c. were furnished.

Without a reference to the account which is set out in the record, and contains items of charges, during each month of the year eighteen hundred and thirty-sis, anterior to the time when the libel was filed, the allegation would be insufficient, as it would not appear from the statement made, that all the articles were not furnished in eighteen hundred and thirty-five, after the boat had left the port, by which the lien would have been divested; or that they were not furnished previous to the ninth of January, eighteen hundred and thirty-six, in which case the lien under the act of eighteen hundred and twenty-four, would never have attached, but as by a reference to the account, this is made certain, we consider the libel as sufficient. 2.

The next assignment of error which will be considered, is, that which embraces the refusal of the Court, to receive the answer of Richardson to the libel, unless sworn to. It will be seen by a reference to so much of the libelas contains the prayer, that the parties interested, are not required to answer on oath, nor have any interrogatories been propounded to the libel-ants. By the general rules of admiralty practice, answer may be required to be on oath.

This practice is incorrect and unsafe, according to Bun-lap, unless in the opinion of the libelant or his proctor, it may be necessary to resort to the conscience of the respondent, in order to substantiate the case; for the answer being required to be on oath, and being so made, might by the general course of admiralty proceedings,be required tobe disproved by two witnesses, (though under our statute, the rule would be different.) (See also the opinion of Chief Justice Marshal, in the case of the Matilda. ) As the libelants in this case, did not think proper to require the answer of the respondent to be on oath, they had no right to have it rejected for the want oí verification.

The act of eighteen hundred and twenty-four, contemplates, that the trial of all issues shall be had before a jury, at the instance oí either party, and on such trial, as in all other cases of jury trials, the evidence in the cause would be submitted to it, independent of the oaths of the parties. For this error, the judgment must be reversed, and the cause remanded, but as the other questions presented on the record are properly raised, and as the practice in cases of this nature, is new in this State, we deem it not improper to express our opinions in relation to them. 3.

It is assigned as error, that the Court erred in rendering judgment against the sureties on the re-plevy bond. It will be perceived on a reference to the statutes, that the conditions which are prescribed for the bonds, are not in all respects similar, and from this supposed variance, it was at first thought that the legislature might have intended to create a difference in the effect to be given to them : but we are satisfied that on a bond being taken under either statute, the specific lien on the boat seized, is discharged, and that it was the intention to substitute the bond in lieu of it.

Thus the condition required by the act of eighteen hundred and twenty-four, is “to answer, all demands which shall be filed;” that of eighteen hundred and thirty-six, “to pay such judgment as shall be rendered on said libel.” The act of eighteen hundred and twenty-four, prescribing that the proceedings shall be according to the course of admiralty, it only remains to inquire whether this is the uniform course in Courts of admiralty.

It is believed to be without exception that all stipulations, or bonds in the nature of a stipulation, are considered as the thing itself, and judgment is rendered against the stipulators, or jidei jussores in the first instance. Neither is the form essential, although prescribed by statute, if the same effect is intended by the one actually entered into.

This practice is convenient, and it in all cases furnishes a remedy, which it is just should be advanced in such a manner, as to attain the ends of justice with as little delay and expense as practicable; and when it is considered, that the judgment on the bond, is at all times within the discretion of the Court, no difficulty it is presumed, can arise from an improper exercise of it. 4.

The condemnation of the boat, after a stipulation had been entered into, and the lien thereby discharged, was erroneous, for the libelants would, "by such judgment, have two remedies, when one alone was contemplated by the act; it is true that the judgment of condemnation in this case might not operate so as to divest any rights, acquired after the giving of the bond, but as it was clearly irregular, the judgment, would for this cause, have been reversed, if such had not already been the result produced by the second assignment. Aik. Dig. 390. 1b. 604. 2 Ed. 3 Mason 6. Gilpin R. 474. 2 Bro.

Civ. & Adm. law 416 Dunlap’s Ad. prac. 207. Dunlap’s prac. 121-122-123. 4 Hall’s Law Jour. 488. The Palmyra 12. Wheat 1. The Struggle 1 Gall. 476