Gaddis v. Howell & Birdsall

The opinion of the court was delivered by Beasley, Chief Justice.

In this case the declaration is founded on a bond given to obtain the release of a vessel, attached by virtue of the proceedings authorized by the statute providing for the collection of demands against ships, steamboats, and other vessels. Nix. Dig. 529. * In this pleading the plaintiffs state, by way of inducement, the steps taken by them to obtain a lien on the boat which was seized, and then they set out, in the usual form, the execution and delivery of the bond, as also its condition. The breach assigned was, the non-payment of the claim for which they had obtained the lien. To this cause of action the defendants interposed a special plea, to the effect that the commissioner before whom the proceedings authorized by the statute had been taken, did not, on the day of issuing his warrant or immediately thereafter, order the notice prescribed in the act, of the seizure of the vessel, and directing creditors to present their claims under pain of forfeiting their remedy under the attachment.

The plea thus presented for consideration proceeds upon the ground that the failure of the commissioner to give the notice in question invalidated, ab initio, the proceeding before him. That such is not the effect of the omission to order this notice, I think is clear. The statute in this respect is merely directory, so that a neglect of the officer to comply strictly with the provision will not avoid the procedure. The direction is analogous to the provision in the attachment act requiring the clerk of the court to advertise the proceeding in a prescribed mode; and it has always been considered that the default of the clerk in this particular, would not *316 touch the validity of the suit. Cory v. Lewis, 2 South. 846 . “There is a well known distinction,” says Lord Mansfield, “between circumstances which are of the essence of a thing required to be done by an act of Parliament and clauses merely directory. The precise time in many cases is not of the essence.” Rex v. Loxdale, 1 Burr. 447. This is the general principle attested by many authorities, and it is plain this provision of the clause under consideration falls within its compass. Besides, it is obvious that the direction that the officer issuing the warrant mentioned in these pleadings, should “thereupon immediately” order the notice to be given, when construed in view of the context and with reference to the purpose to be accomplished, does not mean that the order for the writ and the notice is to be made wno flatu. The notice is required to contain the name of the vessel “seized,” which seems to imply that the order for such notice was not to' be made until after the seizure. The word “immediately” does not, in legal proceedings, necessarily import the exclusion of any interval of time. It is a word of no very definite signification, and it is much in subjection to its grammatical connections. This was the mode of dealing with it in the case of Thompson v. Gibson, 8 M. & W. 281. All that the plea in the present case shows with legal precision, is the fact that the order for the notice was not made on the same day on which the commissioner issued his warrant, and I am of opinion that the act does not require, as a matter necessary to the validity of the proceedings, such useless promptitude in the officer.

But aside from the point just considered, it seems to me that upon general principles of law, the plea is clearly bad. By reference to the statute it will be perceived, that the first clause gives a lien by reason of work of a certain kind being done on the vessel in this state, under a contract with the owner or agent. The proceedings before the commissioner are merely to enforce this lien. It is plain, therefore, that there is nothing in the nature of the transaction, which would prevent a party whose vessel was subject to a lien of this descrip *317 tion, to give a bond similar to the one now in controversy, to the mechanic or materialman, even prior to any proceedings before the commissioner. Such an obligation, considered as a voluntary one, would be of incontestable validity. And in the same way, equally legal would be a bond given during the pendency of proceedings before the commissioner, no matter how irregular such proceedings might be. Instruments of this character when not obtained by extortion, have been frequently sustained. The cases will be found collected in Sedgw. Stat. Con. 368 ; Peo. v. Allen, 6 Wend. 487 .

As this plea, therefore, does not show that the bond in question -was procured from the defendant by duress or by any misuse of legal process, such bond must be held to be valid.

Hor do I find any defect in the declaration which will defeat this demurrer to the plea. It is a mistake to suppose that the statements in the pleading, with regard to the proceedings before the commissioner, are of any legal value whatever. All this matter is entirely foreign to the issue, which the statute declares shall be raised on the bond. That issue 'will be found prescribed in the 15th and 16th sections of the act. Nix. Dig. 530. *

Judgment on the demurrer should be for the plaintiffs.

Rev., p. 586.

Rev., p. 588, §§ 15, 16.