Commonwealth v. Fry.

• Decision Date: 31 January 1871
• Citation: 4 W.Va. 721
• Court: West Virginia Supreme Court
• Parties: Commonwealth, use of Brown, v. James H. Fry et al.

4 W.Va. 721

Commonwealth, use of Brown,

v.James H. Fry et al.

Supreme Court of Appeals of West Virginia.

January Term, 1871.

1. Where the condition of a bond provides for a single act to be done, the breach is well assigned in a declaration if it be in the words of the condition, or words which import the same thing. But where the condition of the bond requires many things, the omission of any one of which would constitute a breach, a particular breach should be specified in the assignment.

2. The assignment of breaches is the essence of the action on a sheriff's bond. The breach must be stated according to the facts, and with certainty and particularity, that the defendants may know what they are called upon to answer.

3. In an action on a sheriff's bond for failure to levy an attachment in a suit, the declaration must aver directly that a judgment was obtained in the suit, and the amount thereof; also that the property on which the sheriff was required to levy, was of some value, and that by reason of the failure to make a levy, the plaintiff sustains damages.

4. The process of attachment issued from the courts of this State, against the owners of steamboats navigating its waters, can be levied on such boats, and the courts have jurisdiction in such cases.

This case came from Kanawha county.

The case was determined here upon a demurrer to the declaration, and the questions arising therein appear in the opinion of Judge Maxwell.

Smith and Knight for the plaintiffs in error.

There was a demurrer to the declaration and each assignment of breaches, which was overruled. The assignments of breaches are bad.

1st. They do not allege that Brown executed a bond for the attachment, with approved security. It might have been good and sufficient security in the estimation of the plaintiff, but the law required that it should be security, approved by the clerk or justice issuing the summons. The plaintiff in his declaration must make out a cause of action, and no. cause of action was made, unless he made the allegation that a bond was executed with security, approved by the clerk. The allegation that the bond was executed with good and sufficient security, is not enough.

2d. They do not allege that the plaintiff ever obtained judgment against the Montgomerys. It might be inferred from the language of the declaration, that such a judgment was obtained, but inference will not do. The direct allegation should be made, and the allegation should show the amount of the judgment.

3d. The last assignment of breaches alleges that, deputy Slack did levy the attachment upon the boat, &c, but failed, and refused to take said boat, &c, into possession, but does not allege that he could have taken the property into possession, and detained the same in custody. When an officer is charged with failure to perform a certain act, the allegation must be followed by the further allegation that it was in his power to perform.

The affidavit upon which the attachment is founded is fatally defective. It does not state that the plaintiff's claim is believed to be just, nor a certain amount which the affiant believes the plaintiff is entitled to recover, or that process of execution on the judgment in the suit when it is obtained would be unavailing, or in fact, any ground for the attachment recognized by the statute. See Code of 1849, ch. 151, § 2; the affidavit was appended to and made part of the order of attachment. It was the duty of the court to quash the attachment on inspection, ex-officio, without plea or motion. See Mardz v. Hendley, 2 Henning & Munford, p. 312.

The action of Brown v. The Montgomerys, was for a maritime tort, and the attachment against the boat, her apparel, tackle, &c, was essentially, and in fact, a proceeding in rem, and the circuit court of Kanawha county had no authority to issue such process or enforce such proceeding, and especially is this the case, if the attachment was issued under the 5th section of chapter 151, of the Code of 1849. Only courts of admiralty jurisdiction could exercise such power. See The Moses Taylor, 4 Wallace, p. 411, and Hine v. Trevor, 4 Wallace, p. 556. It will be noticed that a court of admiralty had jurisdiction of the marine tort in the case of Brown v. The Montgomerys, by virtue of the act of Congress of September 24th, 1789, and not by virtue of the act of Congress of February 26th 1845, and the restriction in the act of 1799, retaining exclusive jurisdicdiction in the district court, applies to the case at bar. It is claimed by plaintiffs' counsel, that the State courts have the right to issue attachments against steamboats in aid of, and ancillary to, a suit in person and against the owners; but it is submitted on the authority of the cases before referred to, that under such attachment the boat jtself cannot be seized and sold. Boats are subject to liens and to priorities thereof, which cannot be settled and adjudicated under any such proceeding, and if they could, the State courts have not the jurisdiction to direct a seizure and sale of the boat itself.

Swann and Hogeman for the appellees.

The questions growing out of the instructions brought up by the bill of exceptions in this case resolve themselves into two, viz:

1st. Can the common law courts take jurisdiction of actions against the owners of vessels for marine torts, or is the jurisdiction of the admiralty courts in this respect exclusive? and,

2d. Was the attachment sued out in the case of Brown against Montgomery, directing the sheriff to levy on the steamer "Greenwood," such a process as, under the act of congress of 1789, could only be issued by the admiralty courts, and such as the sheriff was therefore not required to execute.

Neither of these questions are new. They have already been adjudicated by the courts of the States and of the United States.

But taking the first as an original proposition, when considered in connection with the clause of the act of Congress referred to, which saves to suitors, in addition to the remedy afforded by the act, a common law remedy where the common law is competent to give it, the question admits of no dispute. Indeed the question so much controverted and never settled until decided in the case of the "Genesee Chief," hereafter cited, has not been, have the common law courts jurisdiction of actions for marine torts, but on the concession that this proposition is true, have the admiralty courts jurisdiction over marine torts?

The object of the act of Congress was not to deprive suitors of the remedy which they had at common law, but to afford a more speedy, safe and certain method of redress for cause of action arising upon the high seas, and upon the navigable waters of the country by a proceeding inrem, which enabled the aggrieved party to imparl the vessel itself without incurring the cost and inconvenience of discovering its owners. This proceeding was unknown at common law. And yet, if the aggrieved party preferred the other more expensive and troublesome method, he was not deprived of it, but was left to his choice.

The jurisdiction of the two courts over the subject matter is concurrent, but the mode of asserting and enforcing it is different. In the one case the...