Denning v. Smith

By the Court, Savage, C. J.

The referees to whom the cause in the court below was referred annexed to their report the evidence as it appeared before them ; but, as that properly forms no part of the record, there being no bill of exceptions, that evidence, and the questions decided by the referees, are not judicially before us. If the referees erred in any matter of law or fact, the proper remedy was by application to the court below to set aside their report.

The errors assigned in the record are, 1. That the declaration is insufficient; 2. That the plaintiff’s account should have been annexed to the declaration and set forth in the record. Two other points were made upon the argument: 1. That the judgment is improperly entered against the plaintiff in error personally; 2. That the amount reported by the referees is insufficient to warrant any judgment in this mode of proceeding. The proceedings before declaration are not complained of, and are therefore conceded to be regular.

The statute directs that the declaration shall set forth briefly the plaintiff’s demand, and allege work to have been done, and articles to have been furnished at the request of the owner, master or consignee, averring a demand and refusal, and that the accounts of the respective plaintiffs shall be annexed to the declaration. The declaration in this case contains all that the statute requires. The account was annexed thereto and filed with the declaration, as appears by the return to the certiorari: but it is not set forth in the record ; nor is it required by the act that it should be so set forth, nor can it be necessary.

The. next objection is, that judgment should not have-been entered personally against the owner. The act of 1817, (Statutes, 4th vol. c. 49,) provides, that on the bond being given, the lien on the vessel ceases immediately. Until the bond is given, the proceeding is in rem, but when the vessel is discharged, I apprehend the proceeding is in person-am. Why should the plaintiff any longer proceed against the vessel % It is no more subject to an execution upon a judgment to be obtained than any other property of the owner, The Yessel is discharged from the attachment by the substitution of the owner; and, it seems to me, that thenceforward there is no use in proceeding against the vessel. Suppose the plaintiff should continue the suit against the vessel alone, for what will he have execution 1 The vessel is gone, and may never return, as this proceeding may be had against foreign vessels as well as others. The suit does not abate by the owner’s entering into bonds, because the accounts may be referred, and proceedings had, as in any other referrable case.

Who, then, is to be the defendant ? Not the vessel; she is discharged from the attachment, and the lien thereby created. The owner, master or consignee who executes the bond, from necessity becomes the defendant, and the subsequent proceedings must be against him. It is usual to continue the proceedings against the vessel, together with the owner, &c. and though it may not vitiate, yet it seems to me useless.

The only remaining objection is, that the report is for a sum less than must be sworn to, to authorize an attachment. It seems to be an answer to say, that the statute supposes less may be recovered than the amount sworn to, else why refer at all, but that the accounts may be contested 1 There is nothing in the act to countenance the" idea, that if less is reported due, the court loses its jurisdiction. The account sworn to gives jurisdiction, and authorizes the proceeding, and afterwards the suit proceeds as other suits, with the exceptions to be found in the statute itself. Upon the proceedings of the referees I give no opinion.

I am of opinion that the judgment of the common pleas be affirmed.