In March, 1866, the plaintiff performed work upon the vessel, and filed specifications of his lien for such work before the vessel had departed from the port where she was when the work was done. Soon thereafter the vessel departed from the port, and the only question for our consideration is, whether the specifications were filed "within twelve days after such departure," within the meaning of section 2 of chapter 482 of the Laws of 1862. Section 1 makes certain debts a lien upon vessels. It is not necessary for the claimant to execute or file any papers to create the lien. The statute does this. Section two is as follows: "Such debt shall cease to be a lien at the expiration of six months after the said debt was contracted, unless at the time when said six months shall expire such ship or vessel shall be absent from the point at which such debt was contracted, in which case the said lien shall continue until the expiration of ten days after such ship or vessel shall next return to said port, and in all cases such debt shall cease to be a lien upon such ship or vessel whenever such ship or vessel shall leave the port at which such debt was contracted, unless the person having such lien shall, within twelve days after such departure, cause to be drawn up and filed specifications of such lien," etc. The defendants claim that the specifications mentioned in this section cannot be filed before the departure, and because they were thus filed in this case, that the plaintiff's debt ceased to be a lien. *Page 537
The object of requiring specifications to be filed is to give record notice of the lien, and this is just as effectually accomplished by filing the specifications before as after the departure. It cannot be perceived how any beneficial purpose is to be served by confining the right to file the specifications to the twelve days immediately succeeding the departure, while it cannot be thus confined without causing some manifest inconvenience. A literal construction of the words used would require that the specifications should be both drawn up and filed within twelve days, and yet this will hardly be claimed. I think it was the intention of the legislature simply to require that the specifications should be filed before the expiration of the twelve days, and this construction is confirmed by chapter 422, Laws of 1863, which may be regarded as a statute in parimateria. That is a statute to amend the law of 1862, as to vessels navigating the western and north-western lakes. That statute requires simply that the specifications shall be filed before a certain date after the debt has been contracted. There is no requirement that they shall be filed after the departure of the vessel, and yet, if there were any good reason for requiring them to be thus filed, it would apply to such vessels as well as to vessels navigating other waters.
But if I am wrong in this construction, there is another view of the case equally fatal to the judgment. These specifications were delivered to the proper office before the departure of the vessel, and they were there on file during the twelve days after such departure. If the filing before the departure of the vessel was a nullity, it became operative when the vessel departed. (Hathaway v. Howell, 54 N.Y., 97.)
The judgment should be reversed and new trial ordered, costs to abide event.
For affirmance, LOTT, Ch. C., GRAY and REYNOLDS, CC.
For reversal, EARL and DWIGHT, CC.
Judgment affirmed. *Page 538