Wallace v. Seales

36 Miss. 53 | Miss. | 1858

HANDY, J.,

delivered the opinion of the court.

This was an attachment against the steamboat Afton, to recover the value of a slave, hired by the defendants in error to the proprietors of the boat, to go on a special trip from. Greenwood, in Carroll county, on the Yazoo river, to Vicksburg, and to return to Greenwood, alleging that, in violation of the agreement, the slave was taken by the boat to New Orleans, in consequence of which he contracted a disease of which he died.

The attachment was issued under the Statute of 1840, Hutch. Code, 288, and was .directed “ to the sheriff or any proper officer of Carroll county,” where it was issued, and where the boat was at the time. It was delivered to, and executed by, a constable of that county, who levied it upon the boat, which was replevied by the plaintiff in error, under the fourth section of the act above referred to.

Upon the return of the process and proceedings to the Circuit Court, the plaintiff in error moved the court to quash the return upon the attachment, because it was made by a constable. The motion was overruled, the defendant excepting, and this is the first and principal error assigned by the plaintiffs.

The Statute of 1840, in relation to attachments against steamboats for debt, provides that they may be directed to “ the sheriff or other proper officer” of the county, to be executed, and the question is, whether a constable is a proper officer within the contemplation' of the statute.

The statute giving this remedy is in fari materia with the general statute of 1822, regulating the process of attachment; and in so far as it is silent, as to the modes of proceeding in the execution and return of attachments issued under it, they must be regulated by the general rules prescribed in that statute. By the 30th section of the Statute of 1822, Hutch. Code, 808, an attachment against absconding debtors, may be executed and returned by a constable. The Statute of 1854, chapter 10, section 4, defines an absconding debtor to be ‘c one who shall abscond or secrete himself, or shall remove out of this State, or shall be about to remove or conceal his property out of this State, or is concealing or removing, or about removing his effects, so that the claim of the plaintiff will be defeated or cannot be made.”

It is clear that from the nature of steamboats and of the business in which they are engaged, that they are of a transitory character and have no abiding place. It was for this very reason that the process of attachment was extended to them, treating them as capable at all times, and from their nature, to remove and defeat the plaintiff’s debt; and they appear to come fully within the definition contained in the Act of 1854, of a debtor “ about to remove out of this State, or removing his effects, so that the claim of the plaintiff cannot be made.”

The provisions of the Act of 1822 have always, according to the rule declared in it, been “ construed in the most liberal manner for the advancement of justice, and the benefit of creditors;” and as the reason for the service of an attachment against an absconding debtor, by a constable, is within the reason of the law in relation to steamboats, we think that it is fairly applicable to cases of steamboats, and that the court below acted properly in overruling the motion.

Another error relied upon is, that the court sustained a demurrer to the third plea. That plea alleged that the defendants did not so improperly use the slave, by means whereof he sickened and died. The defendants had already pleaded the general issue to the declaration, and this plea but amounted to the same thing, unless it was intended to narrow the issue to the mere question of the improper use of the slave, by means whereof he died. If that was its object, it was not responsive to the declaration, the gravamen of the complaint being that he was taken to New Orleans contrary to the special agreement, in consequence of which, and of the defendants’ improper use of the slave, he died. If, under these circumstances, the slave had taken the yellow fever or small-pox in New Orleans, of which he died, the defendants ivould have been liable, though he was not improperly used. Yet, under this plea, the issue would have depended upon whether the slave was improperly used. In either view the demurrer was properly sustained.

Judgment affirmed.