Meiggs v. Scannell

Murray, C. J., delivered the opinion of the Court—Terry, J., concurring.

This was an action of replevin for the bark Madonna.

The only question involved, appears to be, whether, in a suit against a vessel for any of the causes set out in the statute, it is necessary to attach her, so as to acquire a lien against subsequent purchasers.

The learned counsel for the respondent contends, that the statute of this State, authorizing suits to be commenced against boats and vessels, does not create a new right, but provides a" remedy; that no lien is given by the statute, except the plaintiff attaches the vessel, as directed by the three hundred and twenty-first section of the Practice Act.

It makes no difference, for the purposes of this case, whether the statute actually gives a lien or not, for the service rendered, thing done, or supplies furnished. As soon as the vessel is seized by a Court of Admiralty, a lien attaches in favor of the party at whose suit the seizure is made. In Averill v. The Steamer Hartford, 2 Cal., 308, it was decided, that service of process in the manner provided by the statute, was equivalent to an actual seizure. Adopting this decision as correct, the lien of the plaintiff in the suit of Conway v. The Bark Madonna, attached as soon as service was had in that suit. I do not think that it was the intention of the Legislature to provide, that a lien should only be acquired by attachment; this would virtually be denying a right to creditors for small sums. It would be almost impossible for a mechanic or merchant of small capital or credit, who had a claim of a few hundred dollars against one of our large river steamers, or some sea-going vessel, to give the necessary bonds to detain her until his suit could be determined, and, in the meantime, she might be run off and sold free of all such debts or incumbrances.

The frequency of such practices, and the injustice resulting therefrom, was the reason for the passage of similar statutes in the West and South, and no doubt influenced the-Legislature of this State in enacting the law under consideration. The inconveniences that may result from the construction which we have given, if any should arise, is a proper subject for legislative revision, but inasmuch as the rule has been so long settled, we deem it best to adhere to it.

Judgment reversed, and cause remanded.