31 N.J.L. 313 | N.J. | 1865
The opinion of the court was delivered by
In this case the declaration is founded on a bond given to obtain the release of a vessel, attached by virtue of the proceedings authorized by the statute providing for the collection of demands against ships, steamboats, and other vessels. Nix. Dig. 529.
The plea thus presented for consideration proceeds upon the ground that the failure of the commissioner to give the notice in question invalidated, ab initio, the proceeding before him. That such is not the effect of the omission to order this notice, I think is clear. The statute in this respect is merely directory, so that a neglect of the officer to comply strictly with the provision will not avoid the procedure. The direction is analogous to the provision in the attachment act requiring the clerk of the court to advertise the proceeding in a prescribed mode; and it has always been considered that the default of the clerk in this particular, would not
But aside from the point just considered, it seems to me that upon general principles of law, the plea is clearly bad. By reference to the statute it will be perceived, that the first clause gives a lien by reason of work of a certain kind being done on the vessel in this state, under a contract with the owner or agent. The proceedings before the commissioner are merely to enforce this lien. It is plain, therefore, that there is nothing in the nature of the transaction, which would prevent a party whose vessel was subject to a lien of this descrip
As this plea, therefore, does not show that the bond in question -was procured from the defendant by duress or by any misuse of legal process, such bond must be held to be valid.
Hor do I find any defect in the declaration which will defeat this demurrer to the plea. It is a mistake to suppose that the statements in the pleading, with regard to the proceedings before the commissioner, are of any legal value whatever. All this matter is entirely foreign to the issue, which the statute declares shall be raised on the bond. That issue 'will be found prescribed in the 15th and 16th sections of the act. Nix. Dig. 530.
Judgment on the demurrer should be for the plaintiffs.
Rev., p. 586.
Rev., p. 588, §§ 15, 16.