Superior Court for the County of Suffolk.

HAWES v. MITCHELL.

It seems that no actual notice to a creditor of the existence of a lien on a ship under St. 1855, c. 231, will, as to such creditor, dispense with the necessity of the record and oath required by § 2 of that statute.

If actual notice could have this effect, it must give the creditor all the information which he could obtain by the record.

The attachment of the vessel at the suit of the party claiming the lien, is not a notice to parties interested which gives such information. Action of contract was brought for the price of materials furnished in constructing a ship according to an account and a petition annexed. The "petition" contained no prayer, but was a statement of certain facts and an allegation of a lien arising therefrom. Held, that an amendment changing the action at law into a petition for the sale of the ship under St. 1855, c. 231, was beyond the power of the court, as changing not the form but the nature of the action.

In a proceeding under St. 1855, c. 231, creditors claiming liens, who are admitted as parties upon notice, according to the provisions of the statute, may make any objections to the claim of the original petitioners, though the effect be to dismiss the whole proceeding.

The facts in this case sufficiently appear in the opinion of the court, delivered, substantially, as follows, by

ALLEN, C. J. In the form which this action has assumed since the proceedings were amended at the November term, 1856, it presents itself as a petition under St. 1855, c. 231, for an order of court directing the sale of the ship Orpheus, for the payment of the amount of the petitioners' lien upon the ship for materials furnished in its construction.

For the purposes of the trial, the furnishing of the materials and the original creation of the lien are admitted, but the parties who oppose the petition contend that by a failure on the part of the petitioners to comply with certain provisions of the statute of 1855, their lien has been dissolved, and that for this and other reasons they are not entitled to the remedy they seek.

Section 5 of the statute referred to, provides that "such lien shall be dissolved, unless the person claiming the same shall file, within four days from the time such ship or vessel shall depart from the port at which she was when the debt was contracted, in the office of the clerk of the city or town within which such ship or vessel was at the time the debt was contracted, a statement subscribed and sworn to by himself or some person in his behalf, giving a just and true account of the demand claimed to be due him, with all just credits, and also the name of the person with whom the contract

was made, the name of the owner of the ship or vessel, if known, and the name of the ship or vessel, or such description thereof as shall be sufficient for identification; which statement shall be recorded by the clerk of such city or town, in a book kept by him for that purpose."

It is agreed that such statement has never been filed, and that the vessel did, in fact, sail in March, 1856, soon after the commencement of the original process in this case.

To obviate this difficulty, the petitioners rely upon the fact, that before the sailing of the vessel, the writ in this case was issued, and the ship was attached by a sheriff and held by him until the attachment was dissolved, a bond to respond to the judgment having been given pursuant to law; and it is contended that the commencement of this suit and the subsequent proceedings constituted a notice to all persons interested, and was equivalent to the required record. The argument of the petitioners rests upon a supposed analogy between the present case, and the decisions which have been made by courts upon the effect of actual notice upon subsequent purchasers, in the case of unrecorded deeds of real estate. The objection to it is twofold. In the first place, the decisions which establish the sufficiency of actual notice in the case of unrecorded conveyances of real estate, have never been extended to the transfer of personal property. In the second place, it does not appear that any such notice has been had. If any notice to parties could remedy the omission to comply with the provisions of the statute, it certainly must be actual and not constructive notice, and it must communicate to all parties interested substantially the same information which the record would afford. It must give to the parties in interest information of the amount of the demand, the names of the contractor, of the owner of the ship, &c., &c. The possession of the vessel by an officer, however open and notorious it may be, does not communicate this information. If it is replied, that an examination of the records of the court will supply that deficiency, the answer is, that parties interested in the property are not presumed or bound to inspect those records. A record in the Registry of Deeds has, by law, the effect of notice to all. But all are not expected to have knowledge of the records of courts respecting suits between parties. There is no presumption of notice. None, except those who have special notice, and those who are voluntarily parties to

a suit, are presumed to have any knowledge of its institution or progress. These claimants who now oppose the prayer of the petitioners, are not such parties. The proceedings were commenced against the contractor, and not until long after did these parties claiming a lien of their own, come into the case, in pursuance of notice given under the statute.

Take, for example, the case of the levy of an execution upon land. Appraisers are chosen, who go upon the land, and the whole proceedings are certainly as public and notorious as the attachment of a vessel by the sheriff; and yet it would hardly be contended that, as against other creditors, this would obviate the necessity of recording the same within three months in the registry according to law.

The case of Denny v. Lincoln, 13 Met. 200, not cited in the argument, appears to us to be conclusive of this case. Chief Justice Shaw, in that case, says: "We are inclined to the opinion that an attachment would hold against an unrecorded mortgage of personal property, although the attaching creditor had notice of it, if it were necessary to decide that question. But if such notice is sufficient, it must be full, clear and explicit—it must express the amount for which the property is bound, and generally it must give substantially the same information as would be given by an inspection of the deed."

If such is the rule in the case of a written mortgage-if notice would be required of all the particulars which could have been learned from the record, a fortiori, would it apply to the case of a statute lien, not created by writing but merely arising from certain facts? And the records in this case, even if these parties were presumed to know them, do not afford the required information. It seems clear to us that no (verbal) notice can dispense with the necessity of the record and oath which the statute requires.

It is, moreover, urged against the petitioners, that the action was not rightly instituted. Though this is now immaterial in this case, yet, as a point of practice, the court thinks it well that it should be decided.

The proceedings were commenced in the common form of an action of contract. The petition was annexed to the writ, but had no other connection with it than that of the wafer which joined the papers. Moreover, although referred to as a petition, it prayed for nothing, being merely a state

ment of facts and an allegation of a lien arising therefrom. It seems that the plaintiff subsequently amended his writ, so that the defendant was called upon to answer "to the petition" instead of "in an action of contract," and also by adding a prayer for a sale of the ship. It is claimed by the defendants, and we think correctly, that the court could not have intended to allow such an amendment that it is one which they have no authority to allow, as it changes an action at common law into a petition under a special statute for a sale, and that consequently all that can now be considered before the court, is the action at law, as originally brought. The case of Hayward v. Hapgood, 4 Gray, 437, we think, is decisive of the point that the statutes authorizing amendments in the form of action, do not extend to a change of their entire nature from law to equity, or vice

versa.

The petitioners also claim that their opponents are admitted as parties in this case, for the purpose of defending and enforcing their own lien only, and not to make objections which shall quash the whole proceedings, where the owner of the property makes no opposition to the sale prayed for. But the statute expressly provides that creditors coming in upon notice in this manner, may not only defend their own claim, but may contest the claim of any other creditor. It may well be, that as proceedings have been commenced in the United States courts against this vessel, these parties may fear some conflict of authority, and prefer to prosecute their claims there. However this may be, they are rightfully here, and have a right to make whatever objection they can, though the effect may be to put an end to the whole case.

Petition dismissed.

S. C. Maine, for plaintiffs.

E. H. Derby, for owners.

E. F. Hodges, for claimants.

EDWARDS v. CHISM, WEEKS, TRUSTEE.

Under the provisions of St. 1844, c. 148, an attaching creditor cannot take issue on the validity of a mortgage and thereby rescind a contract with which the parties are satisfied, unless under an allegation that the same was made in fraud of creditors.

This was an action of contract, in which the personal property of the defendant, subject to a mortgage to one

Carter, and by him assigned to the trustee, Weeks, was attached by mesne process while said property was in the possession of the defendant, who was the mortgagor. Said Carter and Weeks were summoned as trustees in said suit, and made answers therein. The trustee, Carter, was discharged. The plaintiff denied the validity of the mortgage and moved that the same be tried by a jury, and, by the direction of the court, filed his allegations by way of tender of an issue against the validity of the mortgage. The court refused to order a trial on said allegations, on the ground that the parties to the contract of sale between Carter and Chism, having long acquiesced in its validity, and having never sought to rescind it on either side, no issue upon its validity as between them could be raised in this action. There being no allegation that the sale from Carter to Chism was made to defraud creditors, and no other objection being made to the validity of the mortgage in the hands of the trustee, the court held that, under the provisions of St. 1844, c. 148, the aforesaid issue could not be raised by the plaintiff in this action.

Wakefields, for plaintiff.

Wm. Hilliard, for trustee.

MATHEWS v. ALLEN. (NISI PRIUS.)

Note payable on demand

Promise by endorser after sixty days, in ignorance of law-Waiver of demand and notice.

The plaintiff held the note of a corporation, payable on demand, endorsed by the defendant. No demand or notice was made within the sixty days, long after which the corporation went into insolvency.

There was evidence tending to show that after the expiration of the sixty days, and before the insolvency, the defendant, with a full knowledge of the facts that no demand or notice had been made or given, promised the plaintiff that if the corporation did not pay the note, he would. The defendant testified that he had no knowledge of the statute which makes requisite the demand within sixty days, in order to hold the endorser.

On this evidence the jury were instructed as follows, by ALLEN, C. J. If the plaintiff, with If the plaintiff, with a full knowledge of the facts that no demand had been made upon the corpora