*1 Cockcroft. Vose v. Statement of case. and James T. Joyce, Respondents, S. Vose
Walter and Arthur Jacob H. V. Cockcroft Appellants. Leary, part 3; (title chapter 8, as provisions 8, of the Bevised Statutes The special proceeding in Tern amended, chap. 79, 1859), for a Laws etc., supplies, attachment, a lien for furnished ships,by to enforce conflicting thereof, as the exclu- are unconstitutional and with use jurisdiction admiralty courts. federal sive pro- protection any statutory or constitutional In civil proceedings,the estopped waived, party may by his acts from and a be vision proceeding. constitutionality of a denying the law upon bond, given a from to obtain the release of vessel an action Statutes, provisions attachment, above of the Bevised under the inference, stipulations which, by fair having into entered defendant statute, allege its having failed to recognized validity trial, deemed to have unconstitutionality or on the must be answer that defence. waived statute, procure release being given under the The ininmtum, being given and the unconstitu- attachment Hunt, tional, is also void. 0. 11th; May 1st, 1871.) January decided (Argued Appeal an order of the General Term from Supreme in favor Court, in the first district, affirming judgment plaintiff. for the release of the bond, This is an action a warrant of from attachment,issued Jachin brig Cockcroft, defendant, circumstances: following a resident of the of New being city the owner brig, in a at the time vessel domestic York, port being the master thereof. one mentioned, Lovejoy master, 9th, 1859, as March contracted Lovejoy, of materials and on account plaintiffs, supplies, debt furnished for or toward the and articles fitting, furnishing stores fit and for provisions-and brig, equipping the value and which were of use, her $231.56. filed duly required by specifications, vessels, on domestic applied liens statute giving and the vessel was the lien, enforce July, warrant to Yose *2 of
Statement case. defendants arrested under said'warrant. The gave arrest. her from that release set up pleadings,to furnished, and stores were At the time these provisions under written the vessel agreement Lovejoy sailing Cockcroft, H. of defendant, with her Jacob Y. owner, : is copy following 1858. York, May “New “ H. Y. Cock- It is this between J. mutually agreed, day W. Jackin, and Lorenzo owner of croft, Lovejoy, brig Jackin, take of the said and that the latter shall charge brig in such cases, her in -as is, sail shares, customary all bills and and crew, master shall officers wages all for extra furnish also one-half of bills therefor, provisions stevedores, commissions, labor, towages, wharfage, dunnage, hire, and other he shall conduct port chronometer charges; in a and in conside- manner, vessel business shall these and as receive services, himself, ration wages earned amount one-half gross freight brig he remains master the ves- period Jackvn during sel aforesaid. “ J. H. Y. COCKCROFT.
“L. W. LOYEJOY.” remained master, charge brig
Lovejoy until the furnished this agreement, when Cockcroft board, were assumed the put plaintiffs brig, him, etc., control discharged supplies, afterwards used and for the benefit of the vessel. had owned this and had vessel, previously plaintiffs had sailed Cockcroft, her the vessel for
sold Lovejoy under an similar to that with Cock- agreement plaintiffs had his stores of the for this Lovejoy bought plaintiffs croft. for several for which he had before, vessel them. voyages paid the vessel share of when vessel, out of earnings furnished. from for which the stores were returned voyage YOSE V. CoCKCBOFT. Opinion, Court, per of Hunt, He ordered bill this of stores from the and under- plaintiffs, stood from the that he was liable for them. referee as matter of held, law, the debt was a
/The sub- sisting and that exhibited, duly reason of the thereof the non-payment conditions of the been broken. was entered Judgment which was affirmed report, at the Gfeneral Term.
The ease
is
45
below
58.
reported
Barbour,
Charles N. Black, for the
re
cited In
appellants,
Josephine
N.
Kerzel v.
(39
Y.,
Kirk
19);
How.,
(32
Ford v.
269);
Barb.,
Crocker (48
v. Wheeler
142); Tracy
(
E. C.
for the
Benedict,
toas
respondents, cited,
validity
of the
Kerzel v. Kirk
proceedings,
Ford v.
;
Sax
Crocker;
ton v. Reed (Lalor, 328);
v.
McCready
Thorne
Barb.,
(48
v.
Pendleton
Franklin (7 Y.,N.
Low
438);
v. Austin
508);
id.,
(20
v.
Veltman
Comst.,
181);
Thompson (3
The
438);
Chusan
The St. Lawrence
(
Hunt, C. The appellants, statute, under argue which the warrant of attachment was is in conflict issued, with the Constitution laws United and void. States, Hence, which the action is they argue, brought is also and all the action, proceedings including are void and without effect. The decision in judgment, The N. Y., cited as this case. Josephine (39 19) controlling
In that under the case, 1862, act the factswere as arising follows: vessel was enrolled at custom-house New Hand—Yol. V. Vose v. Court, per Hunt, Com.
Opinion of the The plaintiffs, in a domestic to be port. York, adjudged was then ply furnished supplies having issued New Monmouth, Jersey, York New between ing act under the steamboat, of attachment against a warrant return and made her, seized The sheriff aforesaid. cause show why an order obtained The owners seizure. on the be vacated, should not ground the attachment ' based enforce had no courts jurisdiction State exclu claims was vested that such power that character; United States admiralty having in the courts sively made an order at Term Special judge jurisdiction. mentioned. warrant, Upon ground vacating Term of first order was district, the General appeal Court The owners appealed reversed. thereupon of the General Term was the order reversed, where Appeals, Term affirmed, there of the Special ground and that in the 39th New York the result The head-note taken. gives “ a steamer, A words: proceeding against name, in these ' 1862, Laws *4 is chapter by authorized proceeding and with all incidents of a in in nature suit admiralty. of the United are, Courts States the Consti The District thereof, vested with and laws exclusive tution original cogni in all cases and maritime involving .zance admiralty jurisdic in laws State such cases conferring jurisdiction tion. upon in conflict with courts Constitution and :State laws of ,the and States, void.” United case is to argue
The be distin- respondents present that of The from these : Josephine,m respects c-guished in the case of The 1st. Josephine was not was an in bond, but attachment rem. This is- true. <ob alter the fact will result is not, however, That apparent. an attachment was case issued each vessel in a against furnished to in the vessel supplies domestic port, port, levied vessel. The same basis and of jurisdic- claimed, under similar statutes, tion was an identical In the of facts. one case the state question met at its on a motion .first to vacate the stage, attachment. In y y. OSE CoCKCPvOFT. Court, per Hunt, it is raised as defence to the bond other, to vacate the given If attachment. the attachment was void and no effect, it is also enforce or to void. given discharge owner of free the vessel to its right possession, of the attachment. The obtained incumbrance bond was duress compulsion. illegal It that the decision referred
2d. is said Josephine, to the act of 1862, while the act in this awas case, part ¡Revised Statutes. The-warrant of attachment was issued Jachin, on the first brig 1859. The day July, was at levied once brig second on, day. same month, the bond in her release. procure act of March to take By 30th, 1859, effect on that day, Statutes, Revised on this had been altered in subject, many of the act of respects, 1859, to great substituted their extent, 1859 ch. place. (Laws 79,p. 228.) There difference in the details of the act of quite 1859, and those but none whatever in the principles main of the two acts. features The difference consists mainly the extension of act of 1862, to more numerous cases, and the omission of Both many exceptions. acts provide debts, whenever dollars on fifty amounting vessels sea-going shall be contracted the master of any vessel, on ship of such a service done, materials, account or articles this State, furnished within or for such provisions or stores this State as furnished within be fit the same shall a lien
Use of ship It is further each acts, vessel. provided, *5 unless cease, within shall given time, specifications in the shall be filed clerk’s In the lien office. each county is made for the warrant -acts,provision issuing of attachment thereof, by for discharge giving of the amount that shall thereafter be ascertained payment On the due, to be cause con question alleged. flict whether these statutes are interference of jurisdiction, of the United States the exclusive admiralty jurisdiction of 1862 Statutes are the same. If Statute two courts, y. Voss Hunt, per Court, can rescue is reason, void for this ingenuity degree Laws same condemnation. (See 1859 from the Statute of ch. 956; 1859, 79, p. 228.) Laws 482, ch. p. Revised third in the place, The respondents urge, before have been repeatedly this Statutes on subject, it, have been bonds court, and on given judgments The cited respondents’ affirmed. cases repeatedly true. It is assertion. this undoubtedly sustain fully counsel in and find that to, all the cases referred I have examined The them before us raised. question none of was the question its the Statute, assuming arose construction alluded In them is the none of question point validity. number authori- remote of such in the manner. to, most Any of an ties would not express justify overruling of the Court of where deliberate decision Appeals, precise their distinctly presented adjudication. should not adhere to the It is that this court said further, a different doctrine inasmuch as decision Josephine, this in the United Court. To has since held States point cited Wallace, is (7 delivering 624). judge Belfast in that makes case, opinion suggestions extent the view. taken as some favoring respondents’ was that the law of Alabama, the decision point on the Belfast, the lien unconstitutional. There creating is the case decision of that previous nothing overruling us. We on before should not be court point justified inor the decision weakening authority overthrowing made court of this State. recently highest attachment also, is It although urged, is if a man void, the bond chooses to is voluntary; it. he shall be bound Such is not the such bond give It is m com invitmn, The bond is voluntary. law. to obtain release of his If the property. pulsory, the bond falls (Homan attachment with it. v Den., Brinckerhoff.1 had sued out an in a Brinckerhoff attachment that case without court one Davis, giving justice’s *6 Vose v. Court, per Hunt, and had levied bond, plaintiff property Homan. To obtain the release of the Homan property, gave the statute. The provided judg- justice gave ment in favor of the suit. The plaintiff original then plaintiff suit Brinckerhoff upon brought against bond thus him, and recovered before the given by justice. Brinckerhoff insisted that the attachment .not having authorized law was and that the bond pro- its cure was also void. Court discharge say Supreme that, Davis before the appearance jurisdic- justice, tion the attachment suit was obtained, judgment rendered in that suit was “that will valid. But it is added, not aid the he did not hold the plaintiff; property * * had valid judgment. Although plaintiff got judg- he had ment, no other hold than such property the attachment him, seen, as we have was that, gave void for want of to issue it.” The utterly jurisdiction judg- ment in favor of was therefore This reversed. Brinckerhoff case ais answer to precise pointed argument, waived or lost the to the want plaintiff right object release of obtain jurisdiction by giving property. Hill,
In the matter of Faulkner the same (4 598), principle An decided. attachment was issued Faulkner as against He afterward concealed debtor. absconding presented that he was not and had a refer debtor, stating petition ence to the New York Common where the Pleas, matter was him. decided Afterwards trustees were appointed, made to the and a Court. Faulkner report Supreme to set aside then moved, special grounds, appointment all which was denied. After debtor moved trustees, this, and all aside the attachment to set subsequent proceedings It was other for want of objected, among jurisdiction. things, his motions waived the that by proceedings, point at it. was not now to claim This liberty jurisdiction “ overruled, Bronson, But this was J., saying; objection im, where a not a personam, voluntary appearance *7 Voss v. Court, per Hunt,
Opinion Com. on the though to confer person, be sufficient jurisdiction would m a It was with not served process. regularly He his in to save came property. and the debtor only rem, or concealed not an that he was absconding to undertook prove But the warrant discharged. debtor, having purpose on confer judge see how that could jurisdiction I do not I do warrant.” issued the had (Page who previously a think bond have able to see how giving not would confer here, of the vessel could jurisdic to obtain discharge issued the warrant. who tion on previously judge not further that) It is raising argued and there it, at the trial asking ruling upon jurisdiction raise it now. has his defendant lost right to its the matter the case questions, original Reducing if a suit the defendant had bond, thus: In stands and had the defence he now it, to contest interposed desired have been its form ? of, what would the benefit seeks his answer the caseof Homan Brinckerhoff, supra, Under duress; that the bond was obtained that have been would it to obtain restoration of his pro he was compelled give was under that illegal assumption ; compulsion perty In was void. the case of and that of authority, did the defendant so allege prove, Homan Brinckerhoff us sustained. In the case before defence was Ho such was suggestion contains allegation. record a nonsuit there even motion for nor was trial, made at did not consti that the facts proved ground general it nowhere short, action. appears cause of tute a called or point of the court below attention asked to rule question, upon any point they be held to embrace most construction can liberal which by us review, is no decision reviewing it. There is the sole exclusive duty courts below decisions of this court. involved, case the interests society
In a criminal Thus in Cancemi’s cannot waived. questions jurisdictional an stipula- where there R., express Y.N. 128), case (18 y. Co ORCE VOSE OFT. Court, per Hurt, tion of the counsel that trial prisoner’s proceed might eleven rendered, verdict Court jurors, guilty set aside the man verdict. A Appeals stipulate *8 that he in certain or the may hung contingencies of certain facts. He cannot of his life arbi- proof dispose by tration. If his taken, life is of the facts except upon proof the of and before a murder, crime tribunal constituting law to determine the it is murder. qualified by question, makes the distinction case, however, That between crimi is nal and In the latter class of eases it civil cases. all his said that stipulate away party may rights, in of as well as others. As other questions jurisdiction, do failure cases, express stipulation, by they by an to points, or omission or by to appear, present with that Thus the Constitu acts inconsistent objection. by of trial it tion cases which by secures jury right however, used. A waive this has heretore party may, Wend., 24 (Lee Tillotson, reference. v. by proceed right the creditors of' insurance where company So 337.) under an which was unconsti dividends received assignment, them, as to but which cut off the claim tutional and illegal it to whom of those creditors stockholders regard against dividends it was held that under by receiving was legal, to its were unconstitutional assignment they estopped allege their claims not enforce could uneonstitntionality, 26 Wend Whitlock, Hook (Van 43.) the stockholders. a dam a river, to build across were authorized where So persons a bond to such execute conditioned should they provided thereof, sustain each consequence as might person damages for apply county judge and that might any person ascertain of damages, of a peace justice appointment that by it held other accepting etc., among things, proceed had waived the builders objection grant law, of the course common not according ings trial of jury. waived right by had thereby and that they a constitutional So Hill., again, v. Murray, 468.) (People New city the corporation authorizes provision Voss v. Court, per Earl, it York where lot, whole appropriate only part But where use, is unconstitutional. required public owner, taken with the consent of the express proceedings the award are where implied, damages received he is him, held to have renounced benefit the constitutional and a title is obtained under provision, good Conner, Comst., authority. (Embury
Under these it that the unconstitution authorities is clear which the bond was ality capable act,under given, waived to raise it or to By being obligor. failing it in form the below, consideration court present any waived as he could have done effectually express in a There is no civil known, stipulation. case, *9 which can be for review in the Court by questions presented of which have been to the court below Appeals, presented and there it facts decided, upon although might have been v. 2 (Lake Gibson, presented sufficiently appear. Comst., 6 Pr. 188; How, R., 280; Perkins Gridley Daggett, v. Farnham, 10 N. Ib., 120; Y. and H. R. R., Oldfield 310; Codd v. 19 N. Kern., Rathbone, Y., Morris v. 37; 4 Seld., Husson, should be affirmed costs.
Judgment C. It is Revised provided Statutes Earl, (part 3, title as amended 8, 8, 79 of the chap. Laws of by chap. 1859), whenever a debt dollars, on amounting fifty sea-going vessels, or ocean-bound shall be contracted master, or owner, vessel, of for such agent consignees any provisions furnished stores, within be fit and State, may the use of vessel, such such debt shall be lien said which lien shall have a over cer- upon preference liens tain other is further mentioned; provided be enforced by summary rein, a warrant of attachment issued to the sheriff by any judge or of court of record. It also that, any provided justice warrant has issued, after the owner, agent, any interested in the vessel to the officerwho person may apply Yose v. Cockcroet. Court, per Earl, warrant for order to issued the the same; and, discharge execution and to such of officer upon delivery such warrant, the creditors conditioned that the prosecuting the amount all such of claims and will demands obligors have been which shall exhibited, as shall be established to liens such vessel, have been to the pursuant subsisting title, said such officer shall make an of order dis- provisions warrant; thereafter the remedy charging creditors is the bond. attaching attachment mentioned in
The warrant of complaint and the bond sued under these issued, given, pro- Revised Statutes. visions an act (Laws year, chap. 482) passed “An
entitled act to provide collection demands and vessels,” which of, took ships place repealed the said of the Revised and all acts Statutes, amend act thereof. That came in case of the atory N. Y., steamboat was held Josephine (39 19), as in with the conflict Constitution and laws the United States. The second section the third article of the Consti States, tution of the United other declares that among things, United States shall judicial power extend all cases of maritime admiralty jurisdiction. ninth the act of section of Congress passed 24, September *10 called the act, declares that the commonly District judiciary the shall have Courts of United States exclusive original cog all civil causes of nizance of and maritime admiralty juris in all to suitors the diction, cases aof saving common-law right the where common law is remedy it. competent give (1 at U. S. Stat. Large,
In case in 39 New the claim was York, for supplies furnished to the steamer a domestic in Josephine, her home and, while court held port; that, according maritime law, there was lien no this general vessel for upon these which could be in in enforced rem a supplies court of a because the vessel was domestic vessel admiralty, in were furnished her home
supplies it held that the port, yet Hard—Yol. Y. VOSE V. CoCKCEOET. per Eakl, Court, a maritime
contract for the contract,within States, the courts of the United maritime as law by recognized it in a suit in that the could enforce personam, vendors under it a case, in that was and, hence, a court of admiralty; within States, the United and laws of the Constitution the United of the District Courts of exclusive jurisdiction themselves of any vendors avail States, might except in have a State court. common-law they remedy might in law of rem, provided proceeding not within hence held not to be common-lawremedy, and the conclusion of the act of clause Congress; saving and void. was unconstitutional reached, thus law is involved, there far the constitutional So the Be vised Statutes difference between provisions of 1862. The like the law former, as amended enforcement, its not latter, provides but law special common remedy, summary I rem, and under that decision of attachment warrant the said unconsti- entertain no doubt that can provisions and void. tutional from must be
But does follow plaintiffs in their action bond took defeated bond. lien, instead of the then lien, and, place bond and remedy personam had common law within the clause of themselves the act of saving could bring congress. made no defendants
When the gave they objection which the vessel been attached was the law under refers to the at law, The bond least impliedly invalid. it the defendants bound them- By its validity. recognizes and demands all claims as should be estab- selves liens to have subsisting lished vessel,pursuant the Bevised the title of Statutes referred the law this action which the complaint to. *11 to, referred seized was under proceedings vessel VOSE V. COCKCROFT. 1871.7 the per Court, Earl, it were recited; the yet defendants, their answer, made that the law was objection but to invalid, seemed their place defence the that upon the law had not been com- grounds with, and that plied the were furnished the supplies upon sole credit of the that master, and the Lovejoy, therefore had no lien plaintiffs the vessel the statute. upon trial the the Upon read in evidence plaintiffs stipulation, the signed by defendants, certain attorney making in which admissions the of the law validity substantially It was admitted that recognized. the specifications required law the to be sworn to were sworn to and filed duly “ the to statute such case that according made;” the plain- “ tiffs made for warrant to enforce their application alleged lien, of the Revised pursuance Statutes (article 8, chap. set forth in as the
part 3),
defendants
complaintthat
gave
“
“
pursuant
to
statutethat
forms of
statute were
with.” But
complied
stipulation specified
the defendants did not admit
had
plaintiff
any
the said
or that
the articles furnished were
upon
such as were
to
referred
the statute.
contemplated
There was no
at
whatever
the trial
to
validity
or of
law
defences relied
bond,
only
upon
the defendants were that the
furnished
were
supplies
credit
ves-
sole credit of
Lovejoy,
not fit and
owner,
sel or her
and that
were
for the use of
And
from
vessel.
opinions
judging
at
General
I infer that
to the
Term,
objection
am the
I
law was not made there.
opinion,
validity
after all that
therefore,
late,
defendants
too
first
court for the
taken
in this
make this
place,
objection
be
it.
It will not
time.
must
held to have waived
be
They
waive
that a
civil proceeding,
questioned
may,
any
party
constitutional
pro-
the benefit or
protection
any statutory
if it should
claim,
vision.
bound themselves
They
vessel according
a lien
to have been
established
bound
prove,
to the
and all
statute,
at
a lien
was such
that this claim
entitle them to
recover,
*12
Tose Cockcboet.
Eakl,
Court, per
in
The defendants were
bond was
the time
when
given.
same
would have been,if
they
substantially
position
this
condition
themselves to
claim upon
bound
pay
they
owner of the vessel
should prove
other condition
liable
it,
any
legally
But,
immoral or
which was not
public policy.
illegal,
be
could
can it
claimed that
defence
how
be
farther,
in the answer
set
?
available without
any way
up
being
nor
bond
does not
execution
answer
deny
substantially
but
takes issue
invalid,
that was
claim
simply
It
be
would
of the bond.
the breach of
condition
under our
if,
system pleading,
extraordinary
quite
as a
show,
answer,
the defendants were
permitted
that the bond was
defence,
proceedings prescribed
and void.
In the
a statute which was unconstitutional
and Cadwell v.
(
I for the reasons am, opinion, given, to, alluded and I here cannot will the defence prevail, briefly the other of error examine counsel for grounds urged the appellants. some evidence that this vessel was
There was sea-going no claim to made contrary answer the trial. There was evidence that the articles fur or upon fit and for the use of nished were the vessel. The ordered testified that master supplies, they It is a rule that the master is to determine necessary. general fit vendors, proper, what supplies acting decision. faith, can (Ford rely upon Crocker, good This reason that the vendors Barb., so, can what are needed for know the vessel, generally must statements of the master. they rely upon mi.] Voss ti. *13 Earl, per Court, that
It sufficient to the show supplies plaintiffs furnished the were 'order of the master of the vessel, to the them this, statute, and terms the according gave It owned, lien vessel. made no difference who or controlled nor under what chartered agreement The statute was intended she was navigated. give the lien, vendors whenever the master ordered supplies v. N. In order Franklin, them. Y., (Pendleton it their was not lien, plaintiffs establish necessary that the were furnished under circum such show supplies The as to make the liable for them. stances owners personally waive their statute does not this. vendors could require furnish or they supplies, understanding and lien, to have were to to the look exclusively or some was no master, credit of other but there person, these were furnished here, conclusive proof circumstances. such But here the liable for these owner supplies, personally master, him and between agreement notwithstanding 1858. There was no 24th, dated May finding positive knew of this or of the proof agreement under which the vessel was navigated by arrangement the owners from master. order to personal exempt liability must hae vice case, the master be the owner, pro. for the time and and control management, being, the vessel was not chartered Here, as owner. to the vessel her for but was bound to owner. master, navigate and with what the vessel how should be owner could direct she should and sail, where could con- when freighted, as he master, By proper. tinue or dismiss thought have the master terms agreement, express earned amount of freight wages, one-half gross Under such circum- him for to re-imburse expenditures. that the held, has in cases quite analagons, stances them, existed between relation of principal agent contracts the acts that the liable for owner was and management in and the supplies about master, y. Sexton Zett. Statement of case. vessel. v. Read, Lalor’s 323 (Saxton Kenzel Sup. ; Kerk, 32 Howard P. R., 269.)
I, reach therefore, conclusion, should judgment be affirmed with costs.
All for affirmance C., except Leonard, sitting. affirmed. Judgment Appeals, Note.—The Sheppard reported Court Steele, Hand, draws contracts, distinction principal case, between maritime as in the supplies, etc., engaged navigation, to a vessel and contracts not *14 maritime, case, as in that for work and a construction of that, vessel not It is launched. there held in the case of contract, the latter (the Law same act under consideration in the Josephine, N. Y., 19), case of the do not conflict admiralty jurisdic with and, extent, unconstitutional, tion to that are not but authorize the enforce the lien,
ment of by proceedings (See in rem. also Hamill, Brookman Hand, 554.)—Rep. Respondent, Appellant. Zett, Michael Xavier Sexton, sidewalk, public dug Proof of fact that defendant ditch across a provision for open in no night-time, it to remain and allowed law, travelers, matter of warning protecting negligence establishes jury refusal to is no error. and a submit open permission proper city Evidence of from the authorities to such ditch defence, upon negligence instead furnishes where the action is based trespass. upon a 12th; May 1st, January decided (Argued Appeal from an order of General Term of the Supreme fifth rendered district, Court affirming judgment in favor of the a verdict plaintiff. to recover action was brought damages personal into ditch, plaintiff falling jury,sustained had caused to be across sidewalk of one the defendant dug The answer to the streets in City Syracuse. denial. was general complaint the ditch to be from brewery defendant caused dug the street, sidewalk the center of across the into
to and