The Ship Nancy v. Fitzpatrick

3 Cai. Cas. 38

• Court: New York Supreme Court
• Decided: May 15, 1805
• Status: Published

Opinion

Per curiam, delivered by

Livingston, J.

The first error assigned, or at least relied on, is, that it is not alleged in the declaration, that the work was done, or the materials found, within the jurisdiction of the court below.

The Mayor’s court of the city of New-York, may hold plea of actions arising in any part of the state, as well without, as within the limits of the city. It is not necessary, therefore, to state that the cause of them arose within its jurisdiction to give it cognisance, any more than if the suit had been depending in this court.

2 — -The second error is, that the title of the act is misrecited. The words “ masters and owners” are in the plural, whereas in the act they are in the singular number.

There is some confusion if not jargon in the English books on this point. In some authorities we are told, that as the title is no part of a statute, its misrecital is not fatal, but only surplusage. 1 L. Ray.

* 77. Hard. 324.† In others, it is laid down, that R public statute need not be recited in pleading, but if a party undertake to do so and misrecite it, the misrecital is fatal. Cro. Eliz. 236.‡ From other cases§ we find the misrecital of a statute in a material jioint only, is fatal. Cro. Car. 136.|| 522.** 2 Bulsir.

4748.†† 2 Mod. 99.‡‡ From other decisions again, it would pear that if a party, in pleading or declaiing on a public statute, conclude contra formam statuti jinzdicti, a misrecital is not fatal; for, as it was not necessary to recite the statute, the judge, although it be misrecited, will take notice of the true contents, 1 L. Ray. 382.|||| Plowd. 7984.** It is also laid down in another case, that a misrecital of a public statute in a part, which does not go to the ground of action, is cured after verdict by the statute of Jeofails. Styles. 241.

After an examination of these different cases, and comparing them with the one before us, we are warranted in coming to this conclusion ; that a misrecital in the title of a public statute, in a part which does not alter the sense, and when its date be truly set forth, shall never be a cause for arresting judgment, after verdict, or be assigned as error. Courts are supposed to be acquainted with all public acts, and whether their title be irub or falsely recited, they will be satisfied that such act as the plaintiff or defendant relies on exists, before either party shall avail himself of it. Thus in the present case it is not denied that there is a jaw as the plaintiff has declared on, and because a clerk has made the plural, of the singular number in its title, without however in the least altering its sense, it would but little comPort ^le en<^s °f jusuce, if not be a slander on the court to insist on its considering such variance as fatal after verdict. I therefore disregard this objection to the judgment below.

3 — It is alleged that it does not appear that the owner of the Nancy was a non-resident.

Whether this objection might not have been valid, if this had not appeared to be the case on some pavt of the proceedings» I will not say ; but when this fact was very properly put in issue below, upon the plea of the party too, who prosecutes this writ of error, and it is expressly found that the plaintiff’s demand arose while the ship was owned by a non-resident, we should be inexcusable now to listen to this allegation. It may indeed be doubted whether the issuing of the warrant and its continuing in force, be not sufficient evidence of non-residence. If the ship of a resident were to be proceeded against in this way, surely a su-persedeas might be obtained on satisfactory proof of that fact.

4 — Tlve damages it is said, exceed the plaintiff’s demand. The jury have allowed interest, as they had a right to do. How then does it appear that they have given more than the plaintiff claimed, which, by his'account annexed, could only be for the principal of the supplies furnished ? But the damages laid in the declaration which alone we should .look at, are greater than the sum recovered. This objection therefore fails in point of fact.

5 — Costs, it is supposed ought not to have been allowed ; because, if damages are .given where none were given before, no costs are recoverable. But is that the case here? Were not damages recoverable before this act, for work done or materials found for a vessel ? If the action had been referred, as might have been done under the third section, costs would certainly have been allowed; for the act concerning costs, which passed in 1801, declares that where damages are recovered, the parly shall have costs too.

6 — The last assignment is, that the ship by the judgment is to remain liable for the damages and costs. If costs ought to have been given, as has been already shewn, it is reasonable that they, as well as the damages, should be a lien on the property. So, by the fourth section, it is provided that the vessel may be discharged from the attachment, on security being given to pay the demand, with costs of suit. But it was, further said, in support of this objection, that the judgment could not be executed, and should therefore be reversed. How the judgment is to be enforced, whether by the sheriff’s keeping the property until the costs and damages are paid, or whether the vessel may be sold to raise the money, are points to be determined in the court below, and not now before us. I should presume the first to be the proper course, and to me it appears a pretty effectual way of carrying into effect the judgment that has been rendered. At any rate, if the judgment be such as the law prescribes, and in my opinion it literally conforms to the act, it ⅛ not for us to say it is erroneous, merely because there may be a difficulty in its execution ; nor have we a right to render the law a dead letter, because all its provisions are not such as meet our approbation. The legislature intended, as is the case in some other countries, to make the vessels of non-residents liable for certain demands. The present plaintiff has pursued the directions of the act, and we cannot, for any of the reasons which have been assigned, deprive him of the judgment and lien he has obtained on the ship in question. The judgment below must therefore be affirmed.

Chance v. Adams.

Attorney General v. Hutchison & Pocrek.

Vander Pluckens v Griffith.

1 Cro. Car. 136 522

Say & Seal v Stevens.

Goodwin v. West.

Crock v. Rooke by.

Cockman v. Churchill.

Platt v. Hill.

Patridge v Strange & Crocker.