Buddington v. Stewart

14 Conn. 404 | Conn. | 1841

Waite, J.

The defendant’s deputy, in this case, attached all Smith’s interest in the ship Bingham and her cargo, but did not hold it, so that it might be applied in satisfaction of the judgment obtained in the suit. It is very clear, that the defendant is liable for this omission of the officer, unless there is something in the case to excuse it; for, it is admitted, that Smith had an interest in them.

1. If Smith’s interest in the ship was owned by him, as tenant in common with others, it was liable to attachment. That principle was fully recognized, by this court, in a recent case; and we there held it too well settled to admit of a question. Remmington v. Cady 10 Conn. Rep. 44.

Indeed, the general principle seems not to be denied. But it is said, that ships furnish an exception to this rule ; that as a majority of the owners of a ship can send her upon a voyage, contrary to the will of the minority, an officer who has attached only the interest of a minor owner, cannot detain her from the other owners.

It is wholly unnecessary to enquire what would have been the effect of such a taking by a majority, had it been done, because no such fact appears in this case. One thing is certain ; they could not have done it, without being compelled, upon a proper application, to give security to the dissenting owners. And even a minority of the owners, it seems, may employ a ship, in like manner, if the majority refuse to employ her at all. Steam-Boat Orleans v. Phoebus, 11 Peters 183. In the matter of Blanshard & al. 2 B. & Cress. 244.

If the interest of one joint owner of a ship is attached, and the other owners are desirous of sending her upon a voyage, we see no difficulty in compelling them to give security for the lien acquired by the. attachment, as well as for any other interest.

It is the policy of our law to render all a man’s property liable for his debts; and we see no good reason why his share of a ship may not be attached, as well as his share of a stagecoach. The circumstance that the other owners of a ship may, upon certain terms, be allowed to continue her in business, will not, in our opinion, be sufficient to vary the general rule.

But it is further claimed, that Brown had a lien upon Smith’s part of the ship, for his proportion of the repairs and outfits, to an amount greater than the value of that part. But how was this lien created ? It is not claimed, that it was created, by any specific agreement of the parties. Certainly, no such agreement is shewn.

If there was any such lien, it must have arisen by operation of law. Now, the rule laid down upon this subject, by the supreme court of the United States, is this: Where repairs have been made, and necessaries furnished to a foreign ship, or to a ship in a port of a state to which she does not belong, the general maritime law gives the party a lien on the ship itself for his security. But in respect to repairs and necessaries, in the port or state to which the ship belongs, the case is governed altogether, by the municipal law of that state, and no lien is implied, unless it is recognized by that law. The General Smith, 4 Wheat. 438.

Here the ship and the parties all belonged to the same port. Brown, therefore, by the general maritime law, acquired no lien; and we know of no municipal law of this state giving him one.

Jf therefore, Smi 'h’s interest in the ship was that of a tenant in common, it was liable to attachment; and the case tjjat jt was more than sufficient to satisfy the plaintiff’s demand, without resorting to the cargo. In that view, the direction given to the jury, by the superior court, would be right, without enquiring what his interest was in the cargo.

2. But it is claimed, that Smith’s interest in the ship and cargo was that of a partner. Be it so. The authorities abundantly show, that it was equally liable to attachment as if owned by him as a tenant in common. Remmington v. Cady, 10 Conn. Rep. 48. Brewster & al. v. Hammet & al. 4 Conn. Rep. 540.

It is true, in such case, it must be taken subject to the payment of the partnership debts. Church & al. v. Knox, 2 Conn. Rep. 514. Witter v. Richards, 10 Conn. Rep. 37. Holderness v. Schachels, 8 Barn. & Cress. 612. And the case shews, that that interest was more than sufficient to pay his share of all the partnership debts and the plaintiff’s execution. Why therefore should it not have been holden by the officer ?

Again, it is said, that Smith, as master, owned no part of the cargo ; and that his share of the ship and cargo, without any interest as master, was not sufficient to pay his proportion of the partnership debts.

It makes no difference as to the result of this case, whether the shipping articles gave the crew a joint interest in the cargo, or only furnished a rule by which the amount of their wages was to be determined. For if the cargo did not belong to the crew and the owners of the ship jointly, it must have belonged wholly to the owners.

If Smith took no legal interest in the cargo, as master, he must have been entitled to a greeter interest as an owner of the ship. And whether we consider him as the owner of one seventeenth part of the cargo as master, and one sixteenth of the balance, after deducting the shares of the crew; or as owning one sixteenth of the whole cargo, without any such deduction; it w’ill be obvious, that in either case, his share of the ship and cargo was more than sufficient to pay his proportion of all the partnership debts and the execution of the plaintiff.

We discover nothing in the case, going to shew, that Smith had not an attachable interest in the ship and cargo more than sufficient to satisfy the plaintiff’s demand.

We are therefore satisfied, that the instructions given to the jury were right, and that no new trial ought to be granted.

In this opinion the other Judges concurred.

New trial not to be granted.