Birch v. King

• Decision Date: 07 November 1904
• Citation: 59 A. 11,71 N.J.L. 392
• Parties: BIRCH v. KING et al.
• Court: New Jersey Supreme Court

59 A. 11

71 N.J.L. 392

BIRCH

v. KING et al.

Supreme Court of New Jersey.

Nov. 7, 1904.

(Syllabus by the Court.)

Action by Foster F. Birch against Austin King and Alfred Walton. Demurrer to plea of jurisdiction. Judgment for plaintiff.

Argued June term, 1904, before the CHIEF JUSTICE and GARRISON and SWAYZE, JJ.

B. W. Ellicott, for plaintiff.

Elmer King, for defendants.

SWAYZE, J. This is an action upon a bond given to secure the release of a vessel which had been seized by the sheriff of Morris in proceedings taken under the act for the collection of demands against ships, etc. Gen. St. p. 1961. The defendants at first filed pleas in bar, but subsequently, by leave of the court, each filed a separate plea to the jurisdiction, setting up that the cause of action, being for the enforcement in rem of an alleged lien upon a vessel for repairs while on navigable waters, was exclusively within the jurisdiction of the courts of the United States. The plaintiff demurred.

The pleas are clearly bad. The declaration shows that the action is not in rem, as the plea avers, but a common-law action upon a bond, upon the giving of which the warrant to the sheriff was discharged and the steamboat surrendered. The pleader probably intended to assert that the bond was void because he was forced to give it to secure the release of the vessel from seizure unlawful for want of jurisdiction. Such a defense, however, is not the subject of a plea to the jurisdiction, but of a plea in bar. It is similar to a plea of duress (3 Chitty, 964, 965), and to the plea interposed in State v. Sooy, 38 N. J. Law, 324. If there was want of jurisdiction to require the bond, it cannot have a legal existence, and the defense is available under a plea of non est factum. Bordentown v. Wallace, 50 N. J. Law, 13, 17, 11 Atl. 267. But there is no reason why this court is not competent to pass upon that question.

If this plea were a plea in bar, it would still be defective for the want of averments showing the lack of jurisdiction over the original proceedings in rem. The case of The Robert W. Parsons, 191 U. S. 17, 24 Sup. Ct. 8, 48 L. Ed. 73, is relied upon as sustaining the plea. That case decided that the Erie Canal was a navigable water of the United States. But it was expressly said by Mr. Justice Brown, at page 28, 191 U. S., page 11, 24 Sup. Ct., 48 L. Ed. 73: "It is not intended here to intimate that if the waters, though navigable, are wholly territorial, and used only for local traffic—such, for instance, as the interior lakes of the state of New York—they are to be considered as navigable waters of the United States;" and he referred to The Montello. This case was first reported in 11 Wall. 411, 20 L. Ed. 191. The opinion turned upon the distinction between navigable waters of the United States and navigable waters of the state. The libel was defective in failing to aver the facts, and the evidence was insufficient to determine the question, and the case was therefore remanded to enable the parties by new allegations and evidence to present the exact character of the Fox river as a navigable stream. This was clearly explained by Mr. Justice Davis in the subsequent report of the case in 20 Wall. 430, 22 L. Ed. 391. The pleas in the present case aver that the cause of action, "being for the enforcement in rem of an alleged lien upon a vessel for repairs while on navigable waters, is exclusively within the jurisdiction of the courts of the United States." This is an argumentative, rather than a direct, averment that the...