#### David S. Billis, Plaintiff in Error, *vs.*The Steamboat *“*Henrietta,” Defendant in Error.

This cause was brought to the Supreme Court by "Writ of Error to the District Court of Ramsey County.

The Complaint set forth that on the 1st of May, 1854, at Tabula, Iowa, four boxes belonging to the Plaintiff, were shipped on board the Defendant, and which, by a certain contract, or agreement in writing, made by the proper officer or agent of said boat, were to be transported on said boat and delivered, without delay, &c, unto J. *W.*Bass & Co., they paying freight, &c.; that said boxes were marked “D. S. Beilis, care of J. "W. Bass & Co., St. Paul.”

That two of said boxes had not been delivered in pursuance *253■of said contract, but that tliey bad been lost by tbe negligence and carelessness of tbe officers of tbe boat, and that tbe contents of said boxes were worth four hundred dollars.

Tbe Defendant demurred to tbe Complaint, because it did not state or show that tbe steamboat “ Henrietta,” was, or is used in navigating the waters of this Territory,

And because it did not state facts showing that said boat was liable for the Plaintiff’s supposed demand, .

And because it did not set forth tbe Plaintiff’s demand in all its particulars, or with sufficient certainty,

And because it did not state on whose account tbe claim accrued,

And because it did not appear that said Complaint was filed with tbe Clerk of tbe District Court of tbe county in which said steamboat “ Henrietta ” was then lying, or that tbe said boat was then within tbe jurisdiction of tbe Court.

A motion was made by tbe Defendants to vacate tbe attachment against tbe boat, founded upon tbe same objections to tbe complaint.

Tbe motion and demurrer were noticed for argument on tbe same day. Tbe motion was allowed on tbe 20th day of December, 1854, and tbe order sustaining tbe demurrer was dated tbe 25th day of January, 1855.

• Tbe following opinion was filed by M. Sherburne, Judge of tbe District Court:

*JBy the Court*

Sherburne J.

This is a demurrer to tbe Complaint. Tbe action is brought by virtue of a provision of tbe Statute of this Territory, is summary in its character, and is unknown to tbe common law. It is unnecessary therefore to cite authorities to sustain tbe position that in such process, tbe provisions of tbe Statute, must be substantially, if not literally complied with. Without form, registry, or any notice whatever to tbe public, a lien upon steamboats navigating tbe waters of this Territory is created by law for the discharge of all claims, which have accrued, or demands which have arisen on account of tbe same, when contracted by tbe master, owner, Agent, or consignee.

That owners and subsequent purchasers may have some pro*254tection against this extraordinary provision of law, the Statute is imperative that the Complaint *shall*set forth the Plaintiff’s demand in all its particulars and on whose account the same accrued.

It is unnecessary to decide whether the particulars of the demand are sufficiently set forth in this case, for there is no attempt whatever in the complaint to show on whose account the demand accrued, and this must be fatal to the proceeding. There is an attempt to set up a contract with the boat, but it should appear distinctly in the complaint with what person by name, such contract was made. It is not sufficient to allege that it was made with the Clerk, or master or agent of the boat, but his name should be stated. This is a matter of substance and not of form. Masters, agents and owners of steamboats are constantly changing, and their consignees are even more uncertain.

The allegation in this conpplaint is that the .contract was ‘‘ made and entered into by the proper officer or agent of the boat.” This furnishes no information whatever to its present owners or agents, and while it' may be tied up by virtue of attachment, they will stand an even chance of not knowing whether such contract was ever made, or, if made, who made it and is responsible for its violation; a branch of business in which a whole community is so largely interested as this is in steamboating, should not be thus jeopardized, unless the necessity arises from some positive provision of law. But the law in this case is otherwise. It is positive in its character and should not be frittered away by construction.

The demurrer must be sustained.—Sec. 3, *Scammon’s Rep.,*144; 18 *Missouri Reps.*558; 6 *ibid,*375.

The following are the points and authorities relied upon by Counsel for the Plaintiff in Error :

The following are the points upon which the Plaintiff in Error relies for a revisal of the Judgment and proceedings of Court below.

*First.*Tiro Court below, on motion of the Defendant, granted an order vacating and setting aside the warrant, on the ground *255of alleged defection in the complaint: In this there is a manifest error, because,

1. The Complaint is sufficient in all *respects.*—Rev. *Stat. Chap.*86; *also p.*337, *See. 60;*6 *Missouri R.,*37, 381, 552 *and*555; 7 *Missouri R.*213; 8 *Missouri R.,*358; 13 *Missouri R.,*519.

2. The defect (if any,) is one of form only, and furnishes no ground for quashing the writ.

3. -The Complaint in this class of cases is not in the nature of preliminary proofs for the purpose of conferring jurisdiction-to issue process, but the jurisdiction is created by the express terms of the Statute; hence however defective the Complaint, it furnishes no grounds for quashing the writ.

4. The Defendant before the notice of motion, appeared-generally in the action, and thereby waived all defects in the process and proceedings, by which he was brought into Court. After such appearance, it.was too late to object to the writ for any *cause.*—Rev. *Stat. p.*420, *Sec.*26; 2 *Caine’s R.,*134; 2 *Cow. R.,*467 *and*468; 5 *Cow. R.,*15; 7 *Cow. R.,*366; 6 *Wend.*594; 17 *Wend.,*134; 18 *Wend.,*581; 2 *Hill.*362; 2 *How. Pr. R.,*241; 3 *How. Pr. R.,*27; 5 *How. Pr. R.,*233; 6 *How. Pr. R.,*437; 2 *Burr. Pr.,*11; 6 *Missouri R.,*50.

*Second.*The Court below, after granting the Defendant’s motion, to vacate and set aside the said writ, together with all proceedings under the same, rendered judgment for the Defendant upon demurrer to the Complaint; in which there was also manifest error, because,

1. The Complaint was sufficient in law, and substantially conformable to the Statute, in all *respects.—Rev.*Stat., p. *33*7, *and Chaps.*86 *of Rev. Stat., Russell vs. St. Boat*Elk; 6 *Missouri R.,*552; *Byran vs. same boat,*6 *Missouri R.,*555; Camden *& Co. vs. St. Boat Georgia, Missouri R.,*381; *Erskin & Glen, vs. S. B. Thomas, Missouri R.,*37; 7 *Missouri R.,*213, 8 *do.*358, 13 *do,*519.

2. If defective, the defect is not a demurrable *one.*—Rev. *Stat., p.*337; 3 *How. Pr.,*410; 1 *Hill,*130; *Van Sanford’s Pr.,*377 *and*380; 6 *Missourri R.,*522 *and*555; *vide also authorities in Mo. R. above cited.*

3. Admitting the defect to be ground of demurrer, it was a *256■ defect inform only, and the Plaintiff should have been allowed to amend upon *terms*.—R. *S. amend'ts, p.*9, *Sec.*28; *6 Missouri R.,*381; 9 *Missouri R.*146 *and*629.

H. B. Bigelow, Counsel for Plaintiff in Error.

Ames & Van Etten, Counsel for Defendant in Error.

4. The motion to vacate and set aside the writ, and all proceedings under the same, was granted, December 20th, 1864. This was equivalent to a dismissal of the action, and was a ■final determination thereof, and the subsequent proceedings upon the demurrer, including the judgment, were *cor am non Judioe*and *void.*—Bigelow *vs. Stearns,*19 *John R.,*41; *Colier vs. Luther,*9 *Cow.*63; *Blom vs. Burdick,*1 *Hill,*139.

The Points and authorities of the Defendant in Error are mot on file, and there -is no opinion on file in the Supreme ■Court, and no record of the order of that Court upon the final heai’ing of the cause.