Nicoll v. Gardner

By the court,

Nelson, J.

By the 212th section of the act to reduce the several laws relating to the city of New'York into one act 2 R. L. 429, it is made lawful for the owners of wharves in that city to ask and receive to their own us & fixed rates of wharfage for all ships and vessels using their wharves, and amongst others, for every ship of the burthen of 550 tons, and under the burthen of 600 tons at the rate of $>1,87£ per day. And by the 217th section of the same act it is provided, that when any ship or vessel shall have laid 24 hours at any wharf, and the master or owner refuses or neglects to pay wharfage, or give satisfactory security for the payment of the same, being required by the ownersorwharfinger, by notice in writing, left on board with the master or one of the hands belonging to the ship, it shall be lawful for the owner or wharfinger to distrain for such wharfage on any goods or chattels found on board such ship or vessel; and so from time to time, as often as twenty-four hours’ wharfage shall become due; and the goods and chattels so distrained to sell and dispose of in the same-manner as is provided in the case of rent.

At common law the remedy by distress was incident to the right to toll, Viner's Abr. tit. Toll, H.; Cro. Eliz. 558; and in a port town any person had a right to establish a wharf upon his own land, for his individual benefit, and charge such toll as he pleased, or at such rates as he and his customers agreed upon. He possessed the right to erect the wharf because it was the lawful use of his own soil. After its erection and devotion to the public use, the public became so far interested in it that he was bound to repair it, and was liable to indictment for neglect, and the enjoyment of it could not be denied ; and for these considerations the common law gave him the remedy for his toll by distress. Hale de Portibus Maris, 77. Bradley on Distress, 133. By the act above referred to, the legislature of this state have undertaken to regulate this right by giving the corporation of the city of New York the power to direct the erection of wharves, reserving the right of the owner of the adjacent soil to the use and profit of them, (he being at the expense of the erection,) fixing the rates of toll, and giving the common law remedy for its collection by distress.

The material question arising upon the pleadings in this case is, whether the owners or wharfingers can distrain the goods of the vessel for which toll is due at any other place than at the wharf where the toll accrued ? In this case the wharf of the defendants was situate in the seventh ward, where the toll became due, and the taking by distress was in the eleventh ward, the vessel having been removed there after due notice and demand of toll. It is contended, in analogy to a distress for rent, that the goods can be taken only upon or at the premises where the toll accrued; and it is supposed also, that the statute giving this remedy sustains that view. This, I think, is a mistake, as the reference to the remedy for rent applies solely to the manner of selling and disposing of the distress. The levy must be regulated by the rules of the common law. Bent, in a technical sense, is supposed to issue out of the land on which it is reserved, and the remedy by distress is considered as belonging to the land, following the rent and not the person of the tenant. 2 Black. Comm. 41, 2. 3 Inst. 131. Co. Litt. 285, Thos. ed. n. (H.) Viner, tit. Dist. M. The remedy by distress at common law is not confined, as we have already seen, to the case of rent in arrear. It was the appropriate remedy for fines imposed and amercements made in a court leef, 2 Inst. 70, 74; and in the sheriff's toum, 2 Hawk 60, 61; also when warranted by custom for fines and amercements imposed by a steward of a court baron; besides the numerous cases where it is given by express statute. Co. Litt. 269, n. (B.) 2 Bacon, tit. Distress, G. Now it is obvious, hr all these cases, the principle contended for by the plaintiffs can have no application, and that the only limit in the operation and effect of the process is the jurisdiction of the court or officer issuing it, and so it has been decided. 2 Bac. tit. Dist. G. 2 Hawk. 60, 1. Viner, tit. Dist. L. The statute of Marlbridge, which prohibited the talcing of a distress in the highway, did not apply to these cases, it being construed to have reference only to distress for rent. Neither could the beasts of a stranger be taken, though they may have been levant et couchant on the land of the party against whom it was issued. A distress in these and the like cases is looked upon in the nature of a common law execution, to enforce a personal duty, rather than a distress for the collection of rent, which is a remedy adopted as a substitute for the forfeiture of the estate, and that pledges the annual profits of it, liable to seizure by the landlord. 1 Ld. Raym. 386. 1 Burr. 588. Bac. tit. Dist. G. 255, 341. 1 Selw. 495. This was the view of Lord Holt, in the case of Vinkensterne v. Ebden, 1 Ld. Raym. 384, which was an action of trover for an anchor, sails and cable, taken by distress for port toll, belonging to the town of Newcastle. Wharfage is a species of port toll. Hale de Portibus Maris, 77. Bradley on Dist. 133.

The rates of wharfage fixed by the statute are not technically rent, nor are "they necessarily or fairly within the term. The property to be seized need not be upon the premises or wharf, but may be floating upon the waters, and upon the nice and strict rules of common law distresses for rent eo nomine, beyond the reach of the process. The owner or master is not a tenant, and the ordinary security or pledge subject to be seized for the rent, does not exist in the case of toll. There is nothing, therefore, in the reason or fitness of the rules concerning distresses for rent, that recommends the application of those rules to this case, and nothing short of their settled application would lead us to such a conclusion. The process in this case should be viewed chiefly in the light of a common law execution to enforce the collection of a sum or sums fixed by the law, and which is valid and operative for the purpose for which it was given, to the extent of the jurisdiction authorizing it. If the vessel be removed, and the property comes to thehands of a bona fide purchaser,for a valuable consideration, previous to the levy by the distress, it may be a question whether it would be held; but that question it is not now necessary to consider.

The 6th and 7th avowries are substantially good. It is true it does not appear expressly that the goods seized were on board of the ship while she lay at the defendants’ wharf; though it does perhaps impliedly, if the statute authorizes such only to be seized, as it is averred they were seized pursuant to the statute; but we see nothing in the act limiting the talcing to such goods. The statute provides that “ it shall be lawful for the owner or wharfinger to distrain for such wharfage on any goods or chattels found on board such ship or vessel

Judgment for defendants on demurrer.