The following is a copy of the affidavit and the prosecution bond:
NORTH CAROLINA — CHATHAM COUNTY.
Elias Bryan maketh oath before me, one of the justices of the said county and State aforesaid, that the steamer Enterprise is indebted to him in the sum of $190.47, to the best of his knowledge and belief, for work and labor done upon, and provisions furnished to, the steamer Enterprise.
Sworn to and subscribed before me this 6 August, 1857. *Page 200
NORTH CAROLINA — CHATHAM COUNTY.
Know all men by these presents, that we, Elias Bryan and John W. Scott, are held and bound unto the owner of the steamer Enterprise in the sum of $380.95, to be paid to him, his heirs, executors, administrators, and assigns. The condition of the above obligation is such that, whereas, the above bounden Elias Bryan hath this day prayed an attachment in his favor against the steamer Enterprise for the sum of $190.47, and hath obtained the same, returnable to the Superior (261) Court of Law, to be held at the courthouse in Pittsborough on the third Monday in September, 1857. Now, if the said Bryan shall prosecute his said suit with effect, or in case he fails therein, shall well and truly pay and satisfy to the said defendant all such costs and damages as shall be recovered against said plaintiff, his heirs, executors and administrators, in any suit or suits which may be hereafter brought for wrongfully suing out said attachment, then this obligation to be void; otherwise to remain in full force and virtue.
The attachment issued and the sheriff returned it with an endorsement thereon, setting out that he had levied the same upon the steamerEnterprise, and that the vessel having remained in his possession for thirty days unreplevied, he had, upon the certificate of three freeholders that the said vessel was perishable property, sold the same to the highest bidder.
Upon the return of the writ and bond to the Superior Court at Fall Term, 1858, one William P. Elliott intervened for his interest in the vessel and filed a plea in abatement, praying to have the attachment quashed, for the reason, that the same "had been issued without bond taken and returned according to the provision of the act of Assembly in such case made and provided."
To this plea in abatement there was a replication by plaintiff, setting out the substance of the above recited bond. There was a demurrer to the replication and a joinder in demurrer by the plaintiff.
Upon the argument it was adjudged by the Court that the demurrer be sustained, the plea held good, and attachment quashed. Plaintiff appealed to this Court. The last two sections of our attachment law, as contained in chapter 7, Rev. Code, were intended to give a lien "on any ship, steamboat, or other vessel, for or on account of any work done or (262) materials furnished," etc., in favor of those who might do the *Page 201 work or furnish the materials, etc., and to provide the mode of proceeding by which that lien, should be made effectual. Rev. Code, ch. 7, secs. 27 and 28. Among the provisions for this end, it is declared that any creditor who intends to avail himself of the remedy shall, by himself or his agent or attorney, before suing out his attachment, "first verify his debt and the manner in which it was contracted, by affidavit, and shall enter into bond, conditioned for the indemnity of the defendant in the manner provided by law." The plea in abatement put in by the owner of the steamboat, who intervenes to protect his interest, brings up for consideration the question as to whom this bond for the indemnity of the defendant shall be made payable.
It is manifest that the proceeding under this statute is one in rem, and we, accordingly, so held in Cameron v. Brig Marcellus, 48 N.C. 83. It is equally clear that the owner of the vessel or steamboat, or any other person claiming an interest in her, may intervene and have himself made a party defendant, for the purpose of protecting that interest, as we held in the same case. The person who came in and was made party in this case contends that he is the proper defendant and that the bond which the plaintiff gave upon taking out his attachment should not have been made payable "to the owner of the steamer Enterprise," but "to the defendant," or, perhaps more properly, "to the person who shall become defendant." It is very certain that the bond cannot be made payable to any particular person by name, because the proceeding being in rem, there is no such person to receive it, or for whom the magistrate who issues the attachment can accept it. To make it payable as contended for by the defendant involves a technical difficulty which, if possible, ought to be avoided. A bond, being a deed or instrument under seal, must be made to some obligee, to whom or for whom it may be delivered. Marsh v. Brooks, 33 N.C. 409; Latham v.Respass, 44 N.C. 138; Gregory v. Dozier, 51 N.C. 4. Now, in (263) a case like the present, the bond when it is given cannot be made to "the defendant" as a certain obligee because there is no defendant who can be described by his Christian and surname or simply by the description of "defendant." But there is always some person who is the owner of the vessel or steamboat, and to him by the description of "owner" the bond may be made payable, and for him the magistrate may accept the delivery of it from the plaintiff. Should the absolute owner intervene, he may, of course, have a remedy on the bond in case of its breach, and we think that any person who can show a sufficient interest in the vessel or steamboat to be permitted by the court to intervene for that interest will be taken to be "the owner," for the purpose of a remedy on the bond. Our opinion, then, is this that the plea in abatement cannot be sustained. *Page 202
But the defendant through his counsel has raised an objection in the argument here, that the plaintiff's action was discontinued by the sale of the boat, upon the ground that the thing attached being gone there was nothing to keep the case in court. We are satisfied that the sixth section of the attachment law, which provides for the sale of perishable articles, applies only to the cases of original attachment and not to those against vessels and steamboats, authorized by the 27th and 28th sections of the act. The sheriff, therefore, had no authority to sell, and his sale was, consequently, null and void and left the boat in the same condition in which it was before. It does not appears that the sale was made at the instance of the plaintiff, but if it had been, it could not, being void, have the effect to discontinue the proceeding. The judgment must be reversed, and a procedendo issued.
PER CURIAM. Reversed.
Cited: Scott v. Elliott, 61 N.C. 104; s. c., 63 N.C. 217.
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