Rouse v. Jayne

COLLIER, C. J. By a statute passed in 1836, a lien is given to persons furnishing materials, &c., for the use of any steamboat, &c., to the owner or consignee of goods, &c., received on a steamboat, &c., and not delivered, and the mode of enforcing such lien shall be by proceeding in the nature of a libel against such steamboat, &c., in any court having jurisdiction of the amount due; “ on which the clerk of the court shall issue an order of seizure, directed to the sheriff, or other officer of said court, who shall thereupon seize the said boat, her tackle, apparel and furniture; but the claimants of such boat may replevy, on entering into a bond with sufficient security to pay such judgment as shall be rendered on said libel j and a trial shall be had at the first term after such boat is seized.” Clay’s Dig. 139, § 22 to 24. In 1841, an amen-datory act was passed upon the same subject, which declares that the previous enactment was applicable to justices of the peace, and that they were invested with jurisdiction in such cases where the amount in controversy did not exceed fifty dollars. Further, the judges of the county court may, and the judge of the county court shall hold his court, on the first and third Mondays of each month, for the settlement of all cases of libels, over fifty dollars, sued out against steamboats, &c. Upon a judgment being obtained in such case either before the county court or a justice of the peace, execution may forthwith issue, and the steamboat, &c., shall be sold to the highest bidder by the sheriff or constable charged with the process, on giving ten days notice. The next section prescribes the duty of the officer in paying over the money collected, and the mode of proceeding against him for a default. It also contains two provisos — 1. That the libel-lant shall, previous to the institution of his suit make a demand of the amount due him. 2. “ That the owner or owners of any steamboat, or other water craft, shall have the privilege of replevying such property, by paying the sum claimed, or by giving security for the delivery of said property, within the time prescribed by this act.” Clay’s Dig. 140, § ..26 to 28. 1. We have seen that the act of 1836, in general terms, provides, that the claimants of the boat seized may replevy, and that the condition of the stipulation shall be to pay the [731] judgment that may be rendered on the libel; while the proviso we have quoted gives to the owner of the boat the privilege of replevying, by paying the sum claimed by the libel-lant, or by giving security for the delivery of the boat, &c. The first question which presents itself is, whether the proviso in the last statute is an implied repeal of the former, in respect to the replevy of the boat. It will be observed, that the act of 1836 authorizes all persons, who may intervene as claimants, to enter into stipulation, and thus replevy while the statute of 1841 merely provides the mode in which the owner may obtain possession of the boat. The two enactments do not then, in this respect, conflict with each other —the one applying to all persons who may intervene, and the other to owners only, without any inhibition of the right to replevy by others. Thus we see that the two statutes may stand together, and that there is an ample field for the operation of each. Besides, it is an acknowledged rulé, that the repeal of a statute by implication is not to be favored, and its propriety is obvious, when we observe how loosely and inconsiderately many of our legislative acts are drawn. This latter remark is applicable to the statute of 1841, which authorizes the replevy of the boat, not only upon giving security for its delivery, but upon the payment of . the sum claimed by the libel, as if the latter right did not exist independent of legislation. The first act does not contemplate a stipulation, conditioned to return the boat, but “ to pay such judgment as shall be rendered on the libeland if the libellant is successful in his .suit, a decree may be rendered against the stipulators. But the subsequent enactment requires security “ for the delivery of the property within the time prescribed by the act,” and yet omits to prescribe any time. Perhaps the defectiveness of the statute might be supplied by requiring the delivery of the boat to answer such decree as might be rendered in the cause, within a definite time after the rendition of the decree, so as to supersede the necessity of a demand. But if a stipulation is entered into in another form, which imposes no other duty than the statutes contemplate, we should be unwilling to hold that no summary judgment could be rendered on it; the more especially as in proceedings according tp [732] the course of the admiralty, the greatest liberality consistent with the prompt administration of justice, is always tolerated. The act of 1841 provides, that the judge of the county court of Mobile shall hold his court on the first and third Monday in every month, for the trial of libels. Now as the statute is silent in respect to the time when the return of a boat which has been replevied shall be stipulated for, we can perceive no objection, for the designation of the first day of the next term of the court, in the stipulation ; and if it is then returned, we know no reason why the sheriff may not receive a new stipulation, without detaining it in his own custody, at the expense, and to the injury of one or both the litigants. In the case before us, the second, like the first stipulation, requires the return of the boat at the term succeeding its date. Whether the libellants could not object that the form of the stipulation should have been different, we need not consider ; for however this may be, such an objection will not be allowed to come from the stipulators. ; Nor can it avail the stipulators, that the condition of their stipulation does not conform to either of the statutes, as it does not impose a greater obligation than the act of 1836 provides — in fact is more beneficial to them. That enactment only allows a boat which has been libelled to be replevi-ed by bond with sufficient surety, to pay such judgment as shall be rendered, &c. But the stipulation before us is not so stringent, for it provides an alternative condition, upon the performance of which the stipulators might relieve themselves from the payment of that judgment; that is, the return of the boat upon the day appointed. Until that day the stipulators might have discharged themselves by performing the alternative ; but afterwards it ceased to be operative, and their stipulation because absolute, or rather depended upon no other contingency than the recovery of the libellant. In Bell and Casey v. Thomas, 8 Ala. Rep. 528, we said, “ It is not important to inquire whether the bond taken is in precise conformity with that required by statute, for if it was variant from that, and could only be supported as a common law obligation, yet it is within the jurisdiction of a court pro [733] ceeding according to the course of admiralty practice, to render judgment on such an obligation, as an incident to the principal cause. The Alligator, 1 Gall. 145.” We need not, in the present case, go as far as this — for we have seen that the stipulation, after the failure of the stipulators to avail themselves of the privilege of returning the boat, made their undertaking such as the statute provides, and that term in the condition being beneficial to them, did not affect the character of the obligation. It results from what has been said, that the decree of the county court is in conformity to law, and it is therefore affirmed.