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Read v. The Hull of a new Brig.

directions. Verbal declarations are not in many cases more forcible expressions of the understanding and intent of parties, than their acts. Indeed, it has been well said, that silence in some cases becomes even more expressive than words; and binds the party to obligations absolutely imperative, and which the possible ambiguity of words might, in some measure, vary or control. The statute speaks of parol agreements, not using any limitation or qualification; and therefore the words include by law all parol agreements; that is to say, all implied parol agreements, as well as all express parol agreements. Indeed, so purely formal is the distinction, that in all common law pleadings, the terms of the declaration in assumpsit are precisely the same, whether the contract be express or implied; and evidence of an implied promise will support a count upon an express promise.

Another suggestion has been made; and that is, that the lien, being for a short and limited period, does not seem to furnish a just foundation for Admiralty jurisdiction. But this objection seems unmaintainable. The right to maintain jurisdiction depends upon the fact, whether there is a lien at the time, when the suit is commenced, and not upon the length of time, for which it is to endure. Most maritime liens are limited in point of duration, not indeed by positive enactments, but by the general law and doctrine of Courts of Admiralty. The lien of bottomry, of seamen's wages, and of material-men, then, may be displaced by lapse of time, or gross laches in enforcing it. There is probably no lien, created by positive local law, in any one of our States, which is not limited in point of duration of time; and yet it may certainly be enforced by proceedings commenced within that period, in any proper tribunal having cognizance thereof.

The other point, raised by the evidence in the cause, is far more important, but, in my judgment, of no intrinsic difficulty.

Read v. The Hull of a new Brig.

It is this, whether the statute applies to any other cases than those, where the written or parol agreement is for work and labor to be performed upon, or materials furnished for, a particular vessel; or, in other words, whether work and labor performed, or materials furnished upon a general retainer, without any specific application thereof, fixed by the contract to any particular vessel or vessels, or other object, is within the provision of the statute. I am satisfied, upon a careful examination of the evidence in this case, that the libellant was hired by Spear at monthly wages, upon a quantum meruit, to do any work and labor in which he might choose to employ him, although principally to be employed in blacksmith's work. He was not to be paid by particular daily wages for his work and labor done on this brig, nor could he be said, in any just sense, to have trusted to the brig as his security for payment of his wages. He was employed to do any blacksmith's work in which Spear might choose to employ him, not only upon vessels, but upon carts, and in shoeing cattle, and other ways. He was not to receive any distinct wages for work done upon this brig; but his work and labor on the brig was merely a portion of the ingredients, which entered into his earnings, to be allowed and paid for by monthly wages, quantum meruit. Now, it appears to me, that no case of this sort was or could be within the contemplation of the legislature of the State, in the present statute. It was manifestly, in my judgment, designed to apply solely to cases, where, whether the agreement was in writing or by parol, it was an agreement for work and labor to be done and performed upon a particular vessel, as a distinct and independent service, and not as a part of the general services of the party, mixed up and included in his retainer, and to be rendered in the common business or other employment of the person, who hired him, according to his own pleasure. How, in a case like the present, are we to

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Read v. The Hull of a new Brig.

apportion the value of the services of the libellant in the work and labor, done on this vessel? What part of the wages, due to him upon his general retainer, are to be borne by this vessel? If a person is hired to work at monthly wages, either fixed or upon a quantum meruit, how are we to apportion and subdivide the value of his work upon different things in the course of the month? The contract for the hiring is an entirety, and it is a personal obligation. Where is to be found the principle, which authorizes the Court to apportion it upon the different things, on which the work is done, in the course of the month? The employer, in such a case, may have a lien for the work; for the other party is his servant. But it is difficult to perceive the ground, upon which the servant can entitle himself to any lien.

Besides; it is not, as has been remarked by the learned judge of the District Court, the mere naked fact, that labor and services have been performed, or materials used upon a vessel, which entitles the party to a lien therefor. They must be done and furnished under a previous agreement. What agreement? Certainly an agreement, express or implied, relating to the particular vessel, on which the labor and services are to be performed, or for which the materials are to be furnished. The contract, then, must be, not a general contract or retainer for labor and services, but a specific contract or retainer for the particular vessel, embraced and referred to in the contract. There is no pretence to say, that in the present case the libellant was to do work and labor upon a particular vessel, for which he was to receive a distinct and independent compensation, either fixed, or upon a quantum meruit. The work and labor on this vessel, and the compensation therefor, were merged in the more general contract and retainer in the common employment and general business of Spear.

In my judgment, the reasoning of the learned District Judge

The Schooner Harriet.

on this point is entirely accurate and satisfactory; and the libel is not, upon the facts, sustainable; for there never was any distinct agreement for the work or labor on this vessel with the libellant, and consequently there never was any lien thereon under the statute of the State.

The decree of the District Court is therefore affirmed, with

costs.

THE SCHOONER HARRIET, BOYNTON AND OTHERS,
CLAIMANTS.

Although penal statutes are to be construed strictly, yet all the provisions thereof must be taken together, and interpreted according to the import of the words, and not by the mere division into sections, so as to give ef fect to the objects and intent of the statute. All statutes relating to the same subject matter, are to be interpreted together, and such a construction is to be given to them, consistent with the words, as will avoid the mischief, and promote the objects and policy contemplated by the statutes. The 5th and 6th sections of the Act of 1813, ch. 34, and the Act of 1819, ch. 213, relating to the bounty upon all such vessels and boats, employed in the bank and other cod-fisheries, as shall be employed at sea for the term of four months, include within their terms all vessels engaged in the cod fisheries, without limitation or specification as to the length of their fares, or the nature of their fisheries.

A vessel is "at sea," within the intent of the Acts of 1813 and 1819, when she is without the limits of any port or harbours on the seacoast.

In this case, an Almanac was offered as evidence of the particular days on which the vessel (The Harriet) sailed and returned, wherein the letters R. and S. and dots were placed against particular days, as being the very days of her sailing and returning. It was held, that such a document was not a proper journal or memorandum book thereof entitled to credit, and that for this purpose an exact journal or memorandum of the actual days of her sailing and returning, should have been kept, in the nature of a log-book. Where a vessel was enrolled and licensed for the fisheries, and without an oath

having been taken by all the owners to the ownership, as prescribed by the

The Schooner Harriet.

statutes of 1813 and 1819, and fraud and deceit were charged in procuring the bounty allowed by law to such vessels; it was held, that it must be satisfactorily proved, on the part of the United States, that the omission by the owners, who did not take the oath, was through fraud and deceit, and not through mistake, in order to render the vessel liable to forfeiture. Where a certificate, made by the agent of the owner, of the particular times

of sailing and returning of a vessel, engaged in the cod fisheries, was discovered to be incorrect and false after the bounty was received, it was held, that if the incorrectness and falsity were by mistake, there was no forfeiture under the Acts of 1813 and 1819; but if by fraud and deceit, there was.

LIBEL of seizure for an asserted forfeiture under the Act of the 29th of July, 1813, ch. 34, giving a bounty to vessels licensed for, and engaged in, the cod fisheries. The libel charged, among other things, that the Harriet was in 1833 enrolled and licensed for the cod fisheries, and that during the existence of her enrollment and license, she was employed in a trade other than that, for which she was so licensed. It also charged, that the Harriet was, during the same year, enrolled and licensed for the cod fisheries, and that the owners of the said vessel did, by fraud and deceit, obtain the allowance provided for vessels employed in the fisheries, contrary to the Act of 1813, ch. 34. The claim and answer denied the material allegations as to the forfeiture. At the hearing in the District Court in September, 1836, a decree of forfeiture was pronounced; and from that decree an appeal was taken by the claimants to the Circuit Court.

The case was now argued at large at this term by Howard, District Attorney for the United States, and by C. S. Daveis, for the claimants.

STORY J. This cause has been very elaborately argued upon the present appeal, both as to the matters of law and matters of fact, arising in it. The only allegation in the libel, which seems now relied on, is that founded on the Act of

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