Fisher v. White

Burnett, J., after stating the facts, delivered the opinion of the Court—Terry, C. J., concurring. The important question arising in this case is, whether the statute gives a lien from the time the cause of action accrued, or only from the time the suit is commenced. If the lien commences when the cause of action accrued, then White would be entitled to satisfy his judgment in preference -to the mortgage, conceding that he has not waived his priority, and that the first mortgage was discharged by the taking of the second.

In the case of Averill v. The steamer Hartford, 2 Cal. Rep., it was hold that service upon a person standing in a particular relation to the vessel, was equivalent to an actual seizure of the thing, for the purpose of conferring jurisdiction upon the Court from which the process issued. And, in the case of Meiggs & Pray v. Scannell, April, 1857, it was held, that the lien attached to the vessel when the service Avas had in the suit.

These decisions, especially the last, would seem substantially [423]to determino this point. In the last case, the opinion of the Court says: “ The lien of the plaintiff, in the suit of Conway v. Madonna, attached as soon as the service was had in that suit.” If the lien then attached, it did not exist before.

The learned counsel for the defendants, referred us to the case of Germain v. The Steam-tug Indiana, 11 I11. R., 525, in which the Court held, that the statute of Illinois did create a lien the moment the liability was incurred; but the statute of that State expressly provides that “ no creditor should be allowed to enforce the lien created ” by the act, unless suit be instituted “to enforce such lien within three months after the indebtedness accrues, or becomes due according to the terms of the contract.” Rev. Stat., 71, 72. And the only remedy provided for by the statute is, an attachment of the vessel. So, the statute of Missouri expressly creates a lien, and ogives only the remedy by attachment. 1 Rev. St., 1845, p. 181.

There is nothing in our statute expressly creating a lien. And, from the fact that there' is no express provision to this effect, and the word lien is studiously omitted, and no time is limited, within which proceedings should be commenced,"and that a suit may be brought by the service of the summons, without attachment, it would seem not to have been the intention of the Legislature to make the lien attach when the liability was incurred. The intention of the act was, to give priority to the most diligent creditor, except claims for wages, which are preferred before all the others mentioned in the statute.