71 N.J.L. 392 | N.J. | 1904
The opinion of the court was delivered by
This is an action upon a bond given to secure the release of a vessel which had been seized by the sheriff of Morris in proceedings taken under the act for the collection of demands against ships, &c. Gen. Stat., p. 1961. The defendants at first filed pleas in bar, but subsequently, by leave of the court, each filed a separate plea to the jurisdiction, setting up that the cause of action, being for the enforcement in rem of an alleged lien upon a vessel for repairs while on navigable waters, was exclusively within the jurisdiction of the courts of the United States. The plaintiff demurred.
The pleas are clearly bad. The declaration shows that the action is not in rem, as the plea avers, but a common law action upon a bond, upon the giving of which the warrant to the sheriff was discharged and the steamboat surrendered. The pleader probably intended to assert that the bond was void, because he was forced to give it to secure the release of the vessel from seizure, unlawful for want of jurisdiction. Such a defence, however, is not the subject of a plea to the jurisdiction but a plea in bar. It is similar to a plea of duress (3 Chit. Pl. *964, *965) and to the plea interposed in State v. Sooy, 9 Vroom 324. If there was want of jurisdiction to require the bond, it cannot have a legal existence and the defence is available under a plea of non est factum. Bordentown v. Wallace. 21 Id. 13, 17. But there is no reason wiry this court is not competent to pass upon that question.
If this plea were a plea in bar, it would still be defective for the want of averments, showing the lack of jurisdiction over the original proceedings in rem.
The pleas in the present case aver that the cause of action “being for the enforcement in rem of air alleged lien upon a vessel for repairs while on navigable waters is exclusively within the jurisdiction of the courts of the United States.” This is an argumentative rather than a direct averment that the repairs were to a vessel upon navigable waters; the direct averment is that the cause of action is exclusively within the jurisdiction of the courts of the United States — a mere conclusion of law. If we treat the averment that the-vessel was upon navigable waters as sufficiently direct, the plea is still bad. What the facts are as to the navigability of the waters are not shown; it may be the waters formed “a continued highway over which commerce might be carried on with other states or foreign countries,” or they may be “only'navigable between different places within the state.” The exclusive jurisdiction of the federal courts depends on the waters answering the first description. The Montello, 11 Wall. 411. The affidavit annexed to the plea shows that the waters were the waters of Lake ILopatcong, an inland lake. It is quite uncertain whether
Although the tidal test is not the test of admiralty jurisdiction, the plea must state facts from which the court can determine whether the waters were navigable waters of the United States. “The Montello” cited above.
Upon demurrer to a plea in abatement the defendant cannot take any objection to the declaration, for nothing but the writ is then in question. 1 Chit. (14th Am. ed.) 465, 466.' Although a plea to the jurisdiction differs somewhat from a plea in abatement, the question raised is in effect the same, and the judgment is the same — either that the writ abate, or respondeat ouster. 1 Chit. *446.
We are not required to look at the declaration to determine whether in the language of the plea we will take further cognizance of the action. We have, however, taken the pains to examine the declaration and we fail to find any facts therein averred which lead to the conclusion that the waters on which the steamboat was when seized, or at any other time, were navigable waters of the United States. There is nothing in this record to show that the bond upon which the action was brought is void; it is therefore the subject of a common law action like the present and within the jurisdiction of our courts.
The judgment upon this demurrer should be that the defendants answer further to the writ and declaration.