Hays v. Steamboat Columbus

23 Mo. 232 | Mo. | 1856

LEONARD, Judge,

delivered the opinion of the court.

The plaintiff, it seems, became the security of the captain for boat stores upon a note given by the latter for the price of them ; and being afterwards compelled to pay the debt, the captain gave him a bill on New Orleans for the money, and this being unpaid, we are now asked to declare that the surety may proceed for it against the boat, under the statute concerning boat liens, for supplies furnished, &c.

This demand is not embraced by the words of the act. It is not for the supplies themselves, but on account of the money paid for them as the captain’s surety, and we do not think it falls within the reason of the boat lien law, and of course it can not be enforced as an original privileged debt under the act. These secret, tacit mortgages upon boats (for they are such rather than liens, in the common law acceptation of the word,'being unconnected with the possession) we must presume to be just and proper when applied to the original debts specified in the statute ; but it does not seem the part of a wise policy to extend them beyond the words of the law, and the obvious reason and necessity for passing it. If a party, by a legal assignment of the favored debt, might succeed to this right of the original creditor, we are not aware of any legal principle upon which we can hold that the payment made by the surety, instead of extinguishing the debt with all its accessary obligations, had the effect of continuing in force this statute remedy, and of substituting in reference to it the security in the place of the original creditor. We held in a case at the present term, that in equity the surety was entitled to demand 5f the credir tor all the securities the latter had taken from the debtor to secure the payment of the debt, and that therefore^ to the extent to which he extinguished these securities, to that extent he discharged the surety, and that this might be relied upon as a defence to the legal liability ; but that is not the present case. There are cases, too, in which a court of equity will-substitute the surety in the place of the original creditor, and even set up in his favor securities that have been extinguished at law ; but we do not think we are at liberty to go so far as to declare in reference to this statute remedy, that the payment by the security had the legal effect of continuing it in force, and of substituting, ipso facto, the surety in the stead of the original creditor, so as to give him a title by succession to maintain this legal proceeding against the boat.

The judgment must be affirmed.