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THOMAS P. CROWELL, GARNISHEE OF THE CHESAPEAKE AND DELAWARE CANAL COMPANY v. JOHN RANDELL

January 1, 1836

THOMAS P. CROWELL, GARNISHEE OF THE CHESAPEAKE AND DELAWARE CANAL COMPANY
v.
JOHN RANDELL, JUN. RICHARD SHOEMAKER, GARNISHEE OF THE CHESAPEAKE AND DELAWARE CANAL COMPANY
v.
JOHN RANDELL, JUN.



IN error to the superior court of the state of Delaware.

In 1829, John Randell, Junior, the defendant in error, instituted an action of covenant against the Chesapeake and Delaware Canal Company, in the superior court of the state of Delaware, on certain articles of agreement entered into between him and the defendants, relative to the making of a canal to unite the waters of the river Delaware with those of the Chesapeake Bay, and to pass through the states of Delaware and Maryland. The Chesapeake and Delaware Canal Company were incorporated by laws passed by the states of Pennsylvania, Delaware and Maryland; and the board of directors of the company was established in the city of Philadelphia.

The declaration alleged sundry breaches of covenant on the part of the defendants, and after various pleadings and demurrers, and issues of fact, judgment was rendered for the plaintiff on some of the demurrers, and an inquisition of damages awarded. The parties went to trial on some of the issues of fact, which were found for the plaintiff; and on the 25th day of January 1834, the jury found a verdict for the plaintiff for 229,535 dollars 79 cents, upon which a judgment was entered by the court.

Upon this judgment, the plaintiff, on the 6th of June 1834, issued a writ of attachment, under the laws of the state of Delaware, for the collection of part of the amount of the same, and of the costs; which was served on Thomas P. Crowell as the garnishee of the Chesapeake and Delaware Canal Company. The same proceedings took place in the case of Richard Shoemaker.

The defendants repectively appeared, and pleaded that they had no goods or effects, rights or credits of the company in their hands at the time of the attachments, or at any time after. The cases came on for trial on these pleas and issues, according to the laws of Delaware; and the parties agreed to a statement of facts.

In the suit against Thomas P. Crowell, the agreed facts were as follows:

'John Randell, Jun. recovered a verdict of a jury in the said court against the said company, on the 25th day of January 1834, and then and there obtained judgment in the said court against the said company for damages and costs of suit; amounting together to the sum of 229,535 dollars 79 cents. The pleadings, record and proceedings in the said suit, from the declaration to the judgment inclusive, are referred to, and form a part of this case.

'A writ of attachment was issued upon said judgment for the collection of the damages and costs aforesaid, on the 6th day of June, A. D. 1834, returnable to the November term of the same year. The said writ was served upon the said Thomas P. Crowell, in the county aforesaid, at the Delaware tide lock, who was summoned by the sheriff of Newcastle county, as garnishee of the Chesapeake and Delaware Canal Company, on the 15th day of June 1834. At the same time the said Thomas P. Crowell was arrested by virtue of the above mentioned capias, being No. 34 to November term of said court, A. D. 1834, at which time and place the said defendant (the said Thomas P. Crowell, to wit) having appeared and given bail, and being put to plead at the election of the said plaintiff under the said act of assembly, pleaded that he had no goods, chattels, rights, credits or effects of the said the Chesapeake and Delaware Canal Company in his hands, custody or possession at the time of the attachment laid, or at any time after. On this plea the plaintiff hath joined issue, and this is the question now submitted to the court for their decision.

'On the 28th day of January, A. D. 1834, a resolution was passed by the board of directors of the Chesapeake and Delaware Canal Company, in the following words, that is to say:

'Resolved, That hereafter no tolls be collected on the line of the canal on any vessel, cargo or other article passing through the canal, until the said vessel, cargo or other article on which the said tolls may be levied or charged, shall have entered the basin at the western end of the canal; excepting only such vessels, cargo or other article as may not pass through the canal to the said basin.''This resolution has never been printed by the said company, nor hath any notice whatever thereof been given to the said John Randell, Jun., until this time. It is admitted that the said resolution was adopted for the purpose of preventing the said John Randell, Jun., from attaching the tolls of the said company by virtue of the said judgment; or otherwise availing himself of the jurisdiction of the courts of the state of Delaware, for the collection of his said judgment.

'The defendant at the time of the service of the said writ of attachment and capias upon him was, hath ever since been, and still continues to be the master of the schooner Hiram; the said schooner being in his hands and possession during that time as the master of the same, and owner of the said schooner. The said vessel passed through the Chesapeake and Delaware canal, with a cargo from Philadelphia to Richmond, on the 16th day of June, A. D. 1834. The amount of tolls on the several cargoes of the said schooner damanded for passage through the said canal between the 16th day of June, and the return day of the said writ, was 96 dollars and 28 cents, lawful money of the United States of America, and was paid in the city of Philadelphia, to S. Griffiths Fisher, an officer appointed by the said president and directors of the said the Chesapeake and Delaware Canal Company, to receive and collect tolls at their office in the city of Philadelphia, by a certain Joseph Hand, the freighter of the said schooner; after service of said attachment and capias, and after the said vessel had passed through the canal as aforesaid, but before the return of the said writs.

'The said attachment and capias were served upon the said defendant in Newcastle county, at the time of his offering to pass through the said canal at the Delaware tide lock, with the said vessel and cargo, and previous to the vessel passing through the same, to wit, on the 15th day of June, A. D. 1834. The said tide lock was, when the said canal was opened for navigation on the 17th of October, A. D. 1829, established by the president and directors of the said company, as a place for the receipt of tolls in the said canal; and a collector of tolls has always been appointed to reside at that place; and a certain John Wilson was, at the time of issuing said attachment, and has ever since been such collector at said tide lock.

'The printed paper hereunto annexed, marked with the letter A, is a true copy of the regulations to be observed by vessels navigating the Chesapeake and Delaware canal, adopted by the board of directors of the said company, with the rates of toll for navigating the said canal, the same having been signed by the president and secretary of the said company, and published by order of the president and directors thereof; and it is agreed shall be taken as a part of the case: except so far as they had been altered by the resolution of the 28th of January above set forth.'

[The material regulations in the paper A, established the 4th of February 1833, were the follwing:

1. No vessel shall enter the canal without first coming to anchor, or making fast to the piers at least one hundred feet from the outer locks.

2. Masters of vessels shall, before entering the first lock, present to the collector a manifest of cargo, so arranged as to enable him readily to calculate their tolls. And in order to guard against frauds, the collectors are authorized to require the cargo to be landed for examination, if they shall see cause to suspect the correctness of the manifest.

5. The tolls shall always be paid at the first lock passed by a vessel; and upon payment thereof, the master shall receive a pass bill, on which shall be noted the amount of tolls paid, and the precise time of entering.

7. If any vessel shall pass through the canal without fully and honestly paying the prescribed tolls, either of the collectors is authorized by law 'to seize such vessel, wherever found, and sell the same at auction for ready money; which, so far as is necessary, shall be applied towards paying said tolls, and all expenses of seizure and sale.' And to enforce the penalties.

21. The officers and agents of the company are fully authorized by law to enforce obedience to the foregoing regulations; and they are required so to do.

22. No person is allowed to interfere with the agents or officers of the company in the performance of their duties on the canal. Should reasonable ground of complaint occur against such officers or agents, either by unnecessary delays or improper conduct, it will be immediately redressed, on information being lodged at either of the offices of the company.]

'It is further agreed, that the sloop Robert and James, the defendant being then and there the master, and having the direction thereof, passed through the Chesapeake and Delaware canal with a cargo from Port Deposit to Philadelphia, on the 18th of June 1834, and three several times afterwards, to wit, on the 26th day of June 1834, on the 16th day of October 1834, and on the 5th day of November 1834, between that day and the return day of the said writ of attachment. Copies of the pass bills given to the said defendant on these occasions, were annexed.

'The amount of tolls on the several cargoes of the said sloop, demanded for passage through the said canal, by the Chesapeake and Delaware Canal Company, at their lock, at the western end of the canal, in the state of Maryland, and there paid by the said Thomas P. Crowell, master of the said sloop, between the said 18th of June and the return day of said writ, was 74 dollars and 44 cents, lawful money of the United States of America.

'The acts of the legislatures of Delaware, Maryland, and Pennsylvania, relative to the said the Chesapeake and Delaware Canal, and the several supplements thereto are referred to, and made part of this statement of facts.

'It is agreed that in many cases since the resolution of the 28th of January 1834, above set forth, tolls for the passage of vessels and their cargoes through the Chesapeake and Delaware Canal, from the eastern end of said canal, in the state of Delaware, to the western end thereof, in the state of Maryland, were received by some agent appointed by the president and directors of the said company, at their office, in the city of Philadelphia; and were paid by the owners or captains, or by the agents of said owners or captains, to the officers or agents of said president and directors of said company at said office.

'It is further agreed, that independently of the tolls so attached, and all other tolls of the said company attached by the said John Randell, Jun., a sufficient amount of tolls was always left in their hands, not attached, to repair and keep in order the said canal, their locks, and other works necessary thereto, and to keep the same navigable; also to defray the expenses of the collection of tolls, including the salaries of all their officers.

'It is further agreed, that the said canal, the construction of which was commenced on the 15th day of April 1824, was completed and open for navigation on the 17th day of October 1829.

'It also further agreed, that previous to the rendition of the judgment above named, obtained by John Randell, Jun., against the said canal company, that the tolls were collected in the canal at the respective toll houses located at Delaware city and Chesapeake city, from the captains and masters of vessels passing through the said canal: but the counsel for the said defendant protests that said captains and masters were not personally liable to the said company for the said tolls so paid by them. If upon the foregoing statement of facts the court shall be of the opinion that John Randell, Jun., the above named plaintiff, is entitled to judgment against the defendant as garnishee of the said the Chesapeake and Delaware Canal Company, upon the plea of nulla bona, then judgment to be rendered for the said plaintiff for the sum of 96 dollars and 28 cents: and if the court should be of the opinion that the said John Randell, Jun., is not entitled to judgment against the said defendant, on the aforesaid statement of facts, the judgment to be entered for the said defendant.'

The following extracts from the laws of Maryland and Delaware were made part of the case:

Extract from Delaware law, passed February 1832.

'Be it enacted, that in case any master, shipper or agent shall fraudulently present to the collector of tolls, or other agent of the canal company, a false manifest or account of cargo of any vessel or boat about passing through the canal, or give a false statement of the tolls thereon, or otherwise attempt to defraud in the said tolls, on conviction thereof before any justice of the peace for Newcastle county, he or they so convicted, after paying to the canal company the toll due, and the cost of ascertaining the same, shall forfeit and pay double the amount of tolls so charged, on which the fraud had been attempted: one moiety of said forfeiture shall inure to the person giving information and prosecuting the offence to conviction, the other moiety to inure to the state of Delaware.'

Extract from Maryland law, passed December 1831.

'Be it enacted, &c., that if any master or agent of any vessel or boat shall fraudulently present to the collector of tolls, or any other agent of the Chesapeake and Delaware Canal Company, a false manifest or account of cargo of any vessel or boat about passing through the canal, or give a false statement of the toll thereon, or otherwise attempt to defraud in the said tolls, on conviction thereof before any justice of the peace of this state, he shall incur the penalty of twenty dollars, to be recovered before some justice of the peace as small debts are recovered, one half to the informer giving information and prosecuting the offender to conviction, and the other half to the state.'

On this agreed statement the case was certified to the court of errors and appeals for argument and decision; and in October 1835 the court decided that the defendant had goods and chattels, effects and credits, &c. of the company in his hands, at the time of the attachment laid in his hands, and before the return thereof, amounting to 95 dollars; and judgment was rendered in favour of the plaintiff.

The record and proceedings were remanded to the superior court of the state of Delaware, and the defendants prosecuted this writ of error.

The case of Richard Shoemaker differs from that of Thomas P. Crowell only in this; that in his case it was necessary for the court to decide, in order to render judgment for the plaintiff, that the voluntary payment of toll by the master of a vessel to a person appointed by the directors of the company to receive said toll in Philadelphia, was, under the facts stated in this case, a fraud on the attachment laws of the state of Delaware, and on the jurisdiction of its courts; and especially fraudulent, and therefore void, as against a judgment ...


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