Salter v. Duggan

The judgment of the court (King, J. absent,) was pronounced by

This action was for the amount of work and materials done and supplied for tho owners of the Wave. A personal judgment was claimed, and also a decree of privilege upon the vessel. A provisional seizure was obtained, which, upon rule, the district judge dissolved, the testimony disproving the alleged intention to remove the vessel. To the admission of this testimony the plaintiff excepted, “on the ground that there is no law authorizing a defendant in such caso to disprove, in this summary manner, the plaintiffs’ declaration under oath.” It will be observed that the rule taken, and the testimony adduced, *281did not go to the main action, but simply to the plaintiffs’ right to a conservative process, by which he desired to protect an alleged accessary of his claim. Considering the severe nature of the proceeding, which anticipates the ordinary course of the law, and deprives the defendant of the possession of his property before judgment, upon the esc parle showing of his adversary, we think it is proper to grant a summary hearing upon rule, and to relieve the defendant from the seizure, where the apprehension of the plaintiff is clearly proved to be mistaken or unfounded. The main action is undisturbed, and is left to be tried in the ordinary form. Judgment affirmed-.