Opinion
(December Term, 1860.)
The meaning of the statute, Rev. Code, chap. 7, secs. 27 and 28, concerning liens on vessels for repairs, etc., is that the attachment given for the enforcement of the lien must be issued so as to have the vessel seized before she is allowed to depart from the port or place of repairs.
ATTACHMENT tried before Howard, J., at the last term of WASHINGTON.
H. A. Gilliam for plaintiff.
Winston, Jr., for defendant.
The attachment was taken out under sections 27 and 28, chapter 7, Rev. Code, and levied upon the schooner Hugh Chisholm, for repairs done on that vessel. The repairs were done in the county of Washington during 1857, and the attachment was taken out on 4 May, 1858. The vessel was owned by one G. L. Moore, a citizen of Martin County, in this State, during the time she was undergoing repairs, and in the course of trade he sent her to Norfolk, in the State of Virginia, where she was seized under an attachment issued by the circuit court of Norfolk County, Va., upon a personal obligation of the said Moore, and judgment having been rendered thereon for the plaintiff, execution issued and she was sold at public auction to one Webb. After this, on the return of the schooner to North Carolina, this attachment was issued.
These facts were agreed and were submitted for the judgment of the Court; and it was agreed, further, that if his Honor should be of opinion with the plaintiff on the law governing the case judgment should be rendered for $159, with interest; but otherwise that the proceeding should be dismissed.
The court, on consideration, gave judgment for the plaintiff, and the owners of the vessel prayed and obtained an appeal.
The case turns on the construction of the statute, Rev. Code, chap. 7, secs. 27 and 28, title, "Attachment," and the (5) question is, within what time must the attachment be issued?
No time is expressed in the statute, and several constructions were contended for on the argument, for the purpose of fixing the time:
1. The time is unlimited and the lien continues, and the attachment may be issued at any time after the work is done or the provisions furnished — or at least until there be a presumption of payment — to wit, ten years; or the claim is barred by the statute of limitations applicable to the action of assumpsit, to wit, three years.
2. The attachment may be issued within a reasonable time, to be judged of by the court, according to circumstances.
3. The lien is in presenti, and the attachment must be issued before the vessel leaves the port or the place where the work is done.
4. The attachment must be issued before the vessel leaves the State and goes out of the jurisdiction of its courts, or at all events, if the vessel goes out of the jurisdiction and passes into the hands of a purchaser for valuable consideration, the lien is gone and the attachment cannot rightfully issue, should the vessel happen to return to the State.
The first construction leads so manifestly to an absurdity and to injustice that it cannot be entertained. Suppose a vessel is repaired in Wilmington and goes to New Bern, where provisions are furnished; then to Washington, where she is again repaired; and so continuing from time to time, and at different places to be repaired, furnished, equipped, and stored, until she is covered over with liens, as numerous as the barnacles on her bottom. The statute does not make the priority of lien depend on the priority of suing out the attachment, but provides, "such debts shall have a lien on the ship, etc., and shall be preferred to all other liens thereon, except mariners' wages." Can each and every one of these different liens be preferred to all other liens? the first to all the others? the last to all the others? and the intermediate ones to all the others? Or, suppose the vessel be encumbered with liens, is sold to a purchaser for valuable consideration, so as to give him, (6) not a mere lien, but the absolute ownership, does he take, subject to all of these liens, in regard to the existence of which no means of information are afforded to him? This would be manifestly unjust, and yet it must be so, if the liens continue, and can be enforced by attachment at any indefinite time; for it is decided that a third person cannot interplead, on the ground that in a proceeding under the statute the creditor has a right to have his debt satisfied out of the vessel attached, let it belong to whom it may. Cameron v. Brig Marcellus, 48 N.C. 83. To meet this absurdity and injustice, the counsel admitted that the statute was defective and ought to be amended, the failure to fix a time being, as he supposed, an oversight; but he insisted that, as the law now stands, the time is indefinite. We certainly cannot adopt this construction, if there be any other by which to escape from such gross absurdity and injustice; for we are not at liberty to adopt the suggestion of an oversight and suppose that the Legislature forgot to insert a provision in respect to time. Our duty is to take the statute as it is, and to assume that it contains all that the lawmakers intended.
2. The remedy by attachment must be pursued within a reasonable time. When the common law imposes an obligation, as for the holder of a bill to give notice; or one contracts to do a thing, as to execute a deed, and no time is fixed, the law implies that it must be done within a reasonable time; but we know of no rule of construction by which the words of a statute can be added to and a time fixed by an implication of law. The time must be fixed by the words on the construction of the statute, and the implication of a reasonable time is inadmissible. So this suggestion is as untenable as that in respect to the ten years, or the three years as a statute of limitations; but if we were at liberty to interpolate, "such lien shall continue, provided the attachment be issued within reasonable time," it would not aid the attaching creditor in our case, because the facts are not set out so as to enable the Court to see that the attachment did issue in reasonable time. The work was done some time in 1857, and the attachment issued in May, 1858. (7) We are inclined to think this was not in reasonable time, considering the circumstance that the vessel had gone out of the State.
In this connection it may be well to dispose of the fourth suggestion, that the lien ceases and the attachment cannot be issued after the vessel has gone out of the jurisdiction of our courts, particularly, if she passes into the hands of a third person as a purchaser for valuable consideration. To this the same objections are applicable, as above pointed out in respect to reasonable time. The statute contains no provision, and these words cannot be added by implication, however reasonable it may seem to be that such a clause should have been inserted. Consequently, either the time is unlimited, or is restricted to the present, i. e., when the work is done, or the articles are furnished; so that if the vessel is allowed to leave the port or place, the lien and right to attach cannot be afterwards resorted to.
3. We are of opinion that the latter is the proper construction.
Several considerations sustain this conclusion: If the lien must be enforced on the spot, that is, before the vessel leaves the port or place of repairs, etc., the absurdity and injustice, which form an inseparable objection to the other constructions, are avoided; for the provision, "such debt shall be preferred to all other liens, except mariners' wages," is then sensible, and is consistent with justice; because persons having a prior lien by mortgage or hypothecation are benefited by having the vessel repaired or furnished, so as to enable her to proceed on the voyage, as well as the ultimate owners; and the work may very properly be considered as done for the benefit of all who are concerned in her; in fact, the very nature of a lien, "preferred to all other liens," by necessary implication must be enforced instanter.
By comparing the statute of New York (Revised Statutes 1829, part 3, ch. 8, tit. 8, sec. 1) with the statute under consideration, the first section is worded so precisely like the 27th section of ours, as to show that the one was copied from the other. The second section of (8) the statute of New York restricts the lien to twelve days, where the vessel departs from the port of repairs to any other port of the State, and it is to cease when the vessel leaves the State. In place of this, the 28th section of our statute is substituted, giving the right to issue an attachment, and no restriction as to time is inserted. It is true, that the statute of another State cannot be used in aid of the construction of ours, by adding to or taking from its words, but reference may be made to it for the sake of an inference; and it is, obviously, a fair inference that the restriction in respect to time was not omitted by an oversight, but because it was considered unnecessary, the necessity for it being superseded by the provision allowing an attachment, which follows, as a matter of course, provided the attachment was required to be issued on the spot, and is a non sequitur if the attachment could be issued at any future indefinite time.
This construction is also sustained by a consideration of the object of the statute and the mischief to be remedied. The words of the statute are, "any ship, etc., within this State," making no distinction between foreign and domestice vessels. In regard to the former, the persons making repairs, etc., had a lien on the vessel for a prescribed time, according to the general maritime law, and the object of the statute was to give this lien a preference over all other liens, except mariners' wages, and to give as a cumulative remedy the right to sue out an attachment against the vessel, which was a quick mode of proceeding in the courts of the State. In regard to the latter, or domestic vessels, which is our case, the general maritime law had no application, "as to repairs, etc., in a port in the State to which the vessel belongs; the case is governed altogether by the local law of the State, and no lien is implied, unless to be recognized by that law"; The General Smith, 4 Wheat., 438; Peyroux v. Howard, 7 Peters, 341. The common law principles of lien in favor of bailees, e. g., common carriers, inn-keepers, tailors, millers, etc., did not apply, for that is founded on a bailment, where the party has the thing in possession, and is allowed to retain it until (9) the charges are paid; whereas, one who makes repairs on a vessel or furnishes her with provisions, coal, etc., has not the thing in possession, and therefore has no lien according to the local law, and is forced to sue the owner or master, as for a personal debt. So, in regard to domestic vessels the object of the statute took a wider scope than simply to make a lien, which was already recognized by law, preferable to all other liens, and to give a summary remedy, the main purpose being in respect to domestic vessels to create a lien by the local law, by extending to such cases the principle of common law in respect to property which is in possession by bailment, on the ground that one who furnishes provisions or repairs a vessel, although not in possession, comes within the like reason as an inn-keeper, who feeds a horse, or a tailor who makes or mends a coat, and the remedy is to allow the vessel to be taken by attachment, so as to compel payment. So the question is narrowed to this: How far did the common doctrine, in respect to bailees, extend? For there is no ground to assume that the Legislature intended to go beyond it. The extent of the common law doctrine is settled; such bailees have a lien which is "preferred to all other liens,"but it must be enforced on the spot. Jones v. Thurloe, 8 Mod., 172. "By the custom of the realm of England if a man lie in an inn one night, the inn-keeper may detain his horse until he be paid for the expenses; but if he give him credit for that time and let him depart without payment, then he has waived the benefit of that custom by his own consent to the departure, and shall never afterwards detain the horse for that expense." The law has been considered settled ever since; see Leigh's Nisi Prius., sec. 1495, and other textbooks. So that the object of the statute, and the mischief to be remedied, which, according to a well-established rule of construction, is of great weight in fixing its meaning (Dwarris on Statutes, 695), show the meaning to be to give a lien which is preferred to all other liens, with an exception in favor of mariners' wages (which stands on peculiar grounds), which kind of lien, from its nature implies that it shall be enforced instanter, consequently the attachment must be issued so as to (10) have the vessel seized before she is allowed to depart from the port or place of repairs.
This construction obviates all difficulty and complication in which the subject must otherwise be involved.
The judgment in the court below is reversed, and upon the case agreed the proceeding is
PER CURIAM. Dismissed.