Butts and others vs. Cuthbertson.

objection would be well answered. But it does not; that is, only in part. One of the divisions of the account current, it appears, bears date less than twelve months earlier than the date of the institution of the proceedings. That part of the account amounts to some six hundred dollars. As to that sum, so far as this exception is concerned, the proceedings comply with the Statute; as to the remainder of the claim, they are insufficient.

[3.] The 3d exception is taken upon the refusal of the Court below to sustain this objection to the affidavit, to wit: that it does not show that a legal demand was made upon the owners of the boat. The law requires that a demand should be made for the debt, upon the owners of the boat; and the affidavit states that demand was made upon the owners of the boat, and also upon her captain, Albert G. Butts. The objection goes upon the ground, that there ought to be a personal demand upon the owners or their agent, and that the affidavit ought to state that it was so made, and name the owners or the agent. We think the objection well taken.

The Statute is very stringent against owners. The proceeding is summary, and partakes very much of an ex parte character. The right of defence is limited. The owners are not served with process-are not notified to appear and defend. The only substitute for this is, the demand which is required as a preliminary step to taking out the proceedings. It ought, therefore, to be a personal demand upon the owners or their agent, and who they are, or who he is, ought to appear. The averment as to the demand, ought to be stated in such form, with such distinctness that an issue may be formed on it. We therefore sustain this exception.

In connection with this exception, I consider another, which is founded on the refusal of the Court below to sustain this objection to the affidavit, to wit: that it contains no averment that the owners refused to pay upon demand. The Statute makes the demand and refusal preliminary to the suing out the proceeding to recover the debt, and the affidavit says nothing about it. Demand alone is not enough. The Statute makes the right to the lien to depend upon a refusal, and that must be averred. For aught that is apparent from the pleadings, the owners of this boat were not only willing, but importunate, to pay, and that the proceed

Butts and others ts. Cuthbertson.

ing against them is merely vexatious. It is enough to say, however, that the Statute requires a demand and refusal.

[4.] The 5th exception is to the judgment of the Court, that it was not necessary for the judgment to be entered up against the owners as well as the boat. We think it is necessary, because the Act makes it necessary. After the judgment is taken, the Clerk is required to issue execution against the owners and also against the boat. Execution must be founded on a judgment.

[5.] The Court ruled the affidavit sufficient as to the averment that the boat had arrived at a landing, port or place of destination to which it was freighted, and that is excepted to. In relation to this matter, the affidavit sets forth, that the boat "had discharged her freight and laid up at or near Rope Work Shoals, on said Flint river, in the said county of Baker." The Act authorizes proceedings against the boat and her owners, "in any County in which said steamboat or water-craft may then lie, upon the same arriving at the landing, port or place of destination to which the same has been freighted." The affidavit does not, in this particular, conform to the Statute. It should have stated that the place at which she had laid up, and where she had discharged her freight, was either the landing, the port, or the place of destination to which she had been freighted. There is a reason for this. The Legislature, no doubt, intended by this provision to prevent the stoppage of the boat in passing. A power in any boat-hand, captain, pilot, engineer, first or second mate, fireman, or any other person employed on a steamer, to arrest her in any County, whilst passing to her place of destination, would be not only oppressive to owners, but unjust to the owners of freight, and in restraint of navigation and commerce. The place at which this boat is stated to have laid up, may or may not have been her place of destination. She may have stopped and discharged her freight temporarily, from low water, or some other of the causes which are well known to hinder the navigation of our smaller streams. In this regard, we think the Court was in error.

[6.] A motion was made in the Court below to amend the pleadings in this case, and the Court said the petitioner could amend any and every defect, even to the extent of substituting an entire new affidavit, petition, &c. This was after judgment, and pending a motion to set it aside. I know of no proceeding in Law or

Butts vs. Cuthbertson and others.

Equity where the doctrine of amendment can be carried to this extent. Let the judgment be reversed.

No. 19.-ELIJAH BUTTS, plaintiff in error, vs. RALPH S. CUTHBERTSON et al. defendants.

[1.] An inquiry can be made into the consideration of a note, whenever the proper administration of justice requires it.

[2.] Where a Statute gives a summary remedy for services rendered, the taking of a promissory note of the debtor does not waive the statutory lien. [3.] A promissory note, given by an agent, will bind the corporation, provided he acted within the sphere of his powers, or the act was subsequently ratified. If A gives his note to B, in liquidation of the book-debt of C, it does not, of itself, destroy the account; nor is it, without other proof, such a payment that the original debt cannot be resorted to.

Motion to quash Fi. Fa. in Baker Superior Court. Decided by Judge WARREN, January, 1849.

The plaintiff and other creditors sued out and foreclosed their liens upon the steamboat Magnolia, under the Statute of 1841, giving to certain persons therein named, a lien upon steamboats and other water-craft, for provisions and wood furnished, and services rendered on board any steamboat or other water-craft, while engaged in the navigation of certain rivers therein named. (For the provisions of this Statute, see preceding case. See also, Flint River Steamboat Co. vs. Foster, 5 Ga. R. 197.)

The Sheriff levied the fi. fas. upon said steamboat, and sold the same for $3100. At the December Term, 1848, of Baker Superior Court, an order was taken, that all the claims upon the said fund, should be tried before his Honor, Judge Warren, at Chambers. Upon the hearing, on 3d January, 1849, Ralph Cuthbertson, another creditor, moved to quash the fi. fa. in favor of Elijah Butts; Butts objected to his being heard, 1st. Because Cuthbertson is no party to the record. 2d. That if this fi. fa. is fraudulently claiming this money, the remedy of the other creditors is in a Court of Equity. Which objections were overruled by the Court, to which decision Butts excepted,

Butts vs. Cuthbertson and others.

Cuthbertson then moved to quash the fi. fa.:

1st. That the pleadings show that a promissory note is the foundation of the claim, being absolute on its face, for value received, without showing it was for any of the services mentioned in the Statute.

2d. A note cannot be varied or enlarged, so as to allow parol evidence to fix the lien in this case.

3d. The taking of the note is a waiver of the lien upon the boat, and may be enforced upon the Company, or James R. Butts, the agent, by whose name it is signed.

4th. Because the pleadings show that the plaintiff has received a note of a third person, to-wit: James R. Butts, agent, and his lien is thereby discharged.

Which motion was sustained by the Court, on the several grounds therein named; to which decision, counsel for Elijah Butts excepted.

H. MORGAN, for plaintiff in error.

E. PLATT, for defendant.

By the Court.-LUMPKIN, J. delivering the opinion.

The Legislature, in 1841, passed an Act, which declares that "All persons employed either as captain, pilot, engineer, first or second mate, fireman, deck-hand or in any other capacity whatsoever, on all steamboats and other-water craft engaged in the navigation of the Chattahoochee, Altamaha and Ocmulgee rivers, for any debt, dues, wages or demands, which he, she or they may have against the owner or owners of said steamboat, or other water-craft, for personal services done, rendered or performed on board the same, and for wood and provisions, shall have an exclusive lien on said steamboat or other water-craft, against the owner or owners thereof, superior in dignity to, and of higher claim than all other incumbrances, no matter of what nature or sort the same may be: Provided, he she or they shall demand and prosecute the collection of the same, as hereinafter provided for, at any time within twelve months after the same shall become due and payable." Hotchkiss, 625.

The provisions of this Act was subsequently extended to Flint river. Laws of Ga. pam. p. 152.

Butts vs. Cuthbertson and others.

Elijah Butts, seeking to avail himself of the benefit of this Act, applied to the Honorable Lott Warren, Judge of the Superior Court of Baker County, stating that the steamboat Magnolia, navigating the Flint river, was justly indebted to him the sum of $1407,57, for services rendered on board said boat, and provisions and materials furnished her, &c., with interest thereon, from the first day of January, 1848; and that James R. Butts, as the agent of the Flint River Steamboat Company, did, on the 3d of June, 1848, upon demand made on him for payment of said indebtedness, and in liquidation and acknowledgment thereof, execute and deliver to him, as the agent of said Company, a promissory note, whereby they undertook and agreed to pay the sum due, as aforesaid, with interest thereon; and that they had failed to do so.

An execution was awarded and issued, and duly levied on the boat, which was sold, and the proceeds brought into Court, to be distributed under its order to the conflicting claims against the Company. Various exceptions were taken by the creditors, to the fi.fa. of Elijah Butts, the plaintiff in error:

1st. That the pleadings show that a promissory note is the foundation of the plaintiff's demand; and being absolute on its face, and purporting to be for value received, it was not competent, by parol evidence, to show that it was for any of the considerations specified in the Act of 1841, so as to fix its lien.

2d. That the taking of the note was a waiver of the statutory lien.

3d. That the plaintiff having taken the note of James R. Butts, agent, that his lien was discharged.

The Circuit Court decided that the first ground must be sustained, unless a bill of particulars was filed, stating what services were performed, provisions furnished, &c. and the dates of these items of indebtedness specified.

[1.] Let us inquire whether the consideration of the note could be gone into, for the purpose of fixing the statutory lien. Why could it not? Suppose the vendor of land should attempt, after taking the note of the vendee for the purchase money, to assert his equitable lien to the proceeds, would any legal obstacle exist to prevent him from doing so? None occurs to us. What principle is violated by instituting an investigation as to the consideration of a note, whenever it is demanded for the proper adminis