Smith, Dabney & Co v. Armistead, 17 Ala. 282

Smith, Dabney & Co v. Armistead

17 Ala. 282 | Ala. | 1850

PARSONS, J.

The plaintiffs in error brought an action on the case in the Circuit Court of Greene, against the defendant as the Marshal of the Southern District of Alabama. There are several counts in the declaration, to each of which there was a demurrer, and the demurrers were sustained. The plaintiffs have assigned this as error, and they contend by their counsel that the demurrers should have been overruled.

The first count alleges that the plaintiffs were the owners of the steam schooner Lion, with her engine, tackle, apparel and furniture. It then states that one Beardslee, on the 28th day of June 1845, filed his libel in the District Court of the United Stales for the Southern District of Alabama, sitting in Admiralty, against the said schooner, her enigne, &c., the object of which was to recover for materials furnished and repairs done to and for the schooner: That process accordingly issued, under which the defendant, as marshal, seized the schooner, &c. which were bailed by persons mentioned, who entered into bond with a condition that they should have the schooner, &e. forthcoming to abide the decree to be made in the libel suit. This count further shows that thereupon a writ of restitution was is*285sued, under which the defendant restored the vessel, &c. to her owners; and that the said court afterwards, on the 1 Gth day of July 1845, in the same suit, decreed that the said schooner, &c. be condemned as forfeited to the libelant, and that the marshal, After giving three days’ notice thereof in two newspapers published in the city of Mobile, expose to sale, and sell for cash to the highest bidder, in front of the United States’ court-room in Mobile, the said steam schooner, &c., and after deducting the charges and expenses of the 'sale, to pay the proceeds into court for distribution, &c. &c. That thereupon the defendant, as marshal, &c. in pursuance of the decree, took possession of said schooner, &c. with an allegation that he negligently permitted the vessel, &c. to be consumed by fire, to the damage of the plaintiffs, &c. The defendant’s counsel now contends that this count is defective, because it does not allege that the marshal, in the last instance, took possession of the schooner, her tackle, &c. under any process, and that for this reason the count shows that he was a trespasser, and that of course an action on the case cannot be sustained. If it be conceded to the fullest extent that the marshal could not execute such a decree, according to the admiralty practice heretofore, without process from the decree, the question immediately arises if he might not do sounderthe 41st rule of practice of the courts of the United States, in causes of admiralty and maritime jurisdiction, on the instance side of the court, adopted in pursuance of the act of Congress of the 23d of August 1842? The rule is as follows: “All sales of property under any decree in admiralty shall be made by the marshal or his deputy or other proper officer assigned by the court, when the marshal is a party in interest, in pursuance of the orders of the court; and the proceeds thereof, when sold, shall be forthwith paid into the registry of the court by the officer making the sale, to be disposed of by the court according to law.” The rules will be found in the first part of 3 Howard’s U. S. Reports. According to our construction of, this rule, the marshal is to act, in such cases, immediately under the decree and order of the court. When an estate or other property is directed to be sold by a court of chancery, the person who makes the sale acts under the order as his authority, and we do not doubt but the rule was prescribed in view of that practice, and we think the demurrer to the first count should *286have been overruled; and as the same question arises upon alt the counts, each of the demurrers should have been overruled. Let the judgment be reversed and the cause remanded.