Cape Fear Steamboat Co. v. Torrent

Montgomery, Judge. 1. It is only by considering the proceedings against steamboats under section 1969 of the Code, as proceedings in personam, and not strictly proceedings in rem, that the jurisdiction of the State Courts can be maintained for the enforcement of the liens provided for by the preceding section: 40 Qa., 177. If proceedings in personam, necessarily the judgment must be against the person of the debtor. Under the Act of 1870, amendatory of the 1969th section of the Code, the affidavit is the judgment. It follows that the affidavit must set out the names of the owners or lessees, as the case may be, who owe the debt, as well as comply in other respects with the statute. And where the affidavit avers that the demand was made upon the agent, it should state that he is the agent of the pei’sons owing the debt. It is said this is not in strict accordance with the grammatical construction of the section. That the Act says “there must be a demand on the owner or agent or lessee for payment,” etc., and that this can only mean the owner of the boat, the agent of the boat, etc. Doubtless this is true, but is it anything more than the common figure of speech known to rhetoricians as personification, in which the owners or lessees are represented through the property thus impersonated ? A boat is incapable of having an agent. We speak of the agent of a hotel, of a railroad, etc. Who is the principal in such a case ? True, in proceedings in rem in maritime Courts vessels may be said to have agents. But to take this view of it would be to oust the State Courts of jurisdiction, as already indicated. And unless it is very plain that the Legislature mean to give judgment against one without a hearing, Courts will not give that construction to any Act which may bring about such a result. To hold that a demand upon the agent of the boat, as distinguished from the owner or lessee, is sufficient to authorize this summary proceeding, would be to decide that, in some cases, such a judgment might be rendered — as, for instance, in case the [593] boat is leased, after service rendered by an employee for which he has not been paid, and a demand upon the agent of the boat while so leased. The old Act of 1841 only required that a demand should be made for payment, without stating upon whom or how it was to be made: See second section of the Act, 5 Georgia, 197-8. This Court held it must be made personally upon the owners or their agent, and that even a demand upon the captain of the boat was insufficient: Butts et al. vs. Guthbertson, 6 Georgia, 159; 30th, 474. In view of these former rulings of this Court, and the very doubtful manifestation of an intention on the part of the Legislature to change the law as thus interpreted, we think that when the Code says “ there must be a demand on the owner or agent or lessee for payment and a refusal to pay ; and such demand and refusal must be averred,” that it means a demand upon the agent of the owner or lessee, whichever may owe the debt. 2. The affidavit being the foundation of the proceeding — the judgment, in fact — the execution must conform to it, and cannot supply its defects. Where the affidavit contains all the requirements of the law, the execution, if defective, may be made to conform to it by amendment, if necessary. Judgment reversed.