Williamson v. Brooks, claimant of the Robert Morris

Williamson v. Brooks, claimant of the Robert Morris. 1. The intervention of a claimant of a vessel libelled, and his entering into stipulation to pay and satisfy the decree, will render it unnecessary to make monition, so far as the claimant is concerned; and the libel will not be dismissed for the-failure to do so, although the order of seizure, directs monition to be made generally. ’ THIS was a proceeding under the statute, in the county court of Sumter, in the nature of a libel in admiralty. The libel alleged that the libellant caused to be shipped on the steam-boat Robert Morris, at the city of Mobile, sundry articles of merchandize, particularly described, consigned to himself at Gainesville, in the county of Sumter: that the merchandize was never delivered to the libellant, according to the terms of the bill of lading, or in any other manner. The Judge of the County court, to whom the libel was addressed, with a prayer, for that purpose, indorsed thereon his fiat in the following words: “ To the clerk of the County Court of Sumter county. .Let a warrant of seizure issue against the within named boat, Robert Morris, commanding any sheriff of the State of Alabama, to seize and take into his possession, the said boat, her tackle, apparel and furniture, arid the same in his possession, safely to keep, so as to be subject to the future decree of the court; but subject nevertheless, in the meantime, to be replevied out of his hands, upon bond or stipulation, with security being entered into in due form of law; and united with said •warrant, let there be a clause, commanding that due monition be given to all persons whom it may concern, by attaching a copy of said process upon some conspicuous part of the boat, to be and appear at the next term of the County Court of Sumter county, to shew cause, if any they have or can, why the said boat should not be condemned, the said libel sustained, and the prayer of relief granted.” Trie warrant of seizure was issued and executed by the sheriff, taking into his possession the boat with her tackle, &c.; which was claimed by Alphonso Brooks, the master, who entered into a stipulation upon replevying the boat, conditioned ; that “ if said Brooks, the claimant of said boat, shall pay such judgment as shall be recovered and rendered on' said libel, then this bond to be void, otherwise, in full force.” The cause being called for trial, the same was dismissed on motion, because it did not appear by the sheriff’s return, that monition had been made as directed by the writ of seizure. From which decree, the libellant appealed to this Court. Reavis, for the plaintiff in error. Mirapirsr & Jones, for the defendant. [MAJORITY — COLLIER, C. J.] COLLIER, C. J. The monition required by thefiat of the Judge, was genera], and addressed to all the world, so that all persons who were interested in resisting the lien upon the boat set up by the libel, might be advised of its pendency. Its object was not to protect' the claimant and his co-stipulator from personal liability to the libellant’s demand, but to prevent the boat from being subjected to its satisfaction, in despite of the paramount liens of others. (Dunlap’s Ad. Prac. 133.) Now the lien of the libellant was discharged as soon as the claimant intervened and entered into the stipulation. (See 4th sec. of Act of 1824, Aikins Digest, 390. Richardson, et. al. v. Cleaveland & Huggins, 5 Porter’s Rep. 268; Livingston, et. al. v. steam-boat Tallapoosa, 9 Porter’s Rep. 116.) This being the case, there was no conflicting lien in controversy; no person was to be benefitted or prejudiced by making monition, as directed by the order of seizure. The Judge, had he thought proper, could have made his order conditional, directing monition to be made, only in the event, that no claimant intervened and entered into stipulation; and having made it absolute in its terms, that cannot be made indispensable, which otherwise would be wholly immaterial. The purpose to be effected by monition being superseded by the stipulation, the County Court erred in dismissing the libel; consequently its decree is reversed, and the causrPremanded,