L. & S. Denison against The Schooner Appelonia, and her Owners

L. & S. Denison against The Schooner Appelonia, and her Owners. Under the sz>¿g the arres] of slnps and vessels, for debts, &C. passed Uiejoth 22. ch. i.) and the act of the 28th of Feb(seíi’ 4o!8ch! 60.) in amendment thereof, the lien on the when°nshe has left the When, after thelg a owners give bonds with sureties, &c.; and, 3. being arrested, gi°veii,CUbufthe vessel has re-other port, or state,’for more than twelve days, after the arrest. The h"tmact°f<ioes not apply to the case where the vessel was removed, and continued absent from the port, or place where the supplies and materials were furnished, more than twetee days before the arrest. THE proceedings in this cause were removed by ccrtio ?'«ri from the Court of Common Pleas of Jefferson county. jyn attachment was issued, under the act of the 10th of Au- ’ gust, 1798, (1 N. R. L. 130. sess. 22, ch. 1.) and the ^ amending the same, passed February 28, 1817, (sess. 40. ch. 60.) against the schooner Appelonia, for labour and materials furnished for the said vessel, at SacJcetfs .... Harbour, lhe president, directors and company of the Bank of Utica, as owners of the vessel, pleaded, 1. JVonassumpsit. 2. That as to one hundred and twenty-five dol1117. lars and four cents, part and parcel of the demand or hen of the plaintiff’s, it arose on or about the 2d of December, 1819 ; that the schooner was arrested on the 30th of December, 1820, and that before tile arrest, to wit, on the 1st of June, 1820, the said schooner left, and, for more than twelve days, continued absent from the port of Sacketfs Harbour, where the supplies r ’ * * and materials were furnished, and where the schooner might have been arrested, whereby the supposed lien of the plain as t0 *c one hundred and twenty-five dollars and four cents, part and parcel of their demand, ceased. To this plea, there was a demurrer and a joinder in demurrer. There was no judgment on the demurrer in the Court bel0w : and the cause came before the Court on the same pleadings as set forth in the return to the certiorari; and was submitted without argument. [MAJORITY — Per Curiam.] Per Curiam. The first act (10th of August. 1798, 1 N. R. L. 130.) gives a lien on the ships and vessels of non-resident owners, and contains a general provision, “ that the lien shall cease immediately after such ship or vessel shall have left this state.” (s. 5.) It also provides that the owner may give bonds with sureties, to satisfy the demands, and then the ship “ shall be discharged from the attachment, and be permitted to proceed on her voyage.” (s. 4.) The amendatory act of February 28, 1817, (sess.40. c. 60.) extends the provisions of the first act to, vessels owned by-persons resident in this state ; with a proviso, “ that in case of the arrest of any ship or vessel by virtue of the said recited act, and bond given pursuant to the 4th section thereof, the lien created by the said act on such ship or vessel, shall immediately cease : and provided also, that the said lien shall in no case endure beyond twelve days after such ship or vessel shall leave the port in which the same may-have been so arrested.” The plea is bad. No part of the proviso in the last act applies to any vessel, except such as “ may have been so arrested” under the statute. The statute discharges the lien in three cases; 1st. Where the vessel “ has left this state |” 2d. Where she has been “ arrested” and given bonds, &c. ; 3d. Where she has been “ arrested” and given no security; but has removed to another port or place in this state, for the space of more than twelve days, after the arrest. The averment in this plea does not show either of these cases. It is merely, “ that before the said arrest the schooner left and continued absent more than twelve days from the port of Sachetfs Harbour, where the supplies and ma - terials were furnished,” &c. Judgment for the plaintiffs on the demurrer,