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§ 314. Damages may be recovered by successful applicant.
If judgment be rendered upon the right of the person so alleged to be entitled, in favor of such person, he may recover, by action, the damages which he shall have sustained by reason of the usurpation of the office by the defendant.
§ 315. When several persons claim the same office, their rights may be determined by a single action.
When several persons claim to be entitled to the same office or franchise, one action may be brought against all such persons, in order to try their respective rights to such office or franchise.
$ 316. If defendant found guilty, what judgment to be rendered against him.
When a defendant, against whom such action has been brought, is adjudged guilty of usurping or intruding into, or unlawfully holding any office, franchise or privilege, judgment shall be rendered that such defendant be excluded from the office, franchise or privilege, and that he pay the costs of the action. The Court may also, in its discretion, impose upon the defendant a fine not exceeding $5,000; which fine, when collected, shall be paid into the treasury of the State.
CHAPTER VI.— Of actions against steamers, vessels and boats.
SEC: 317. When vessels, etc., shall be liable. Their liabilities
shall constitute liens. 318. Actions may be brought directly against such ver
sels, etc. 319. Complaint shall be verified. 320. Summons may be served on the master, mate, etc. 321. Plaintiff may have such vessel, etc., attached. 322. The Clerk shall issue the writ of attachment. 323. Such writ shall be directed to the Sheriff. Sheriff
may release upon sufficient undertaking. 324. Sheriff shall execute such writ without delay.
SEC. 325. The owner, master, etc., may appear and defend such
vessel. 326. Proceedings in actions under this chapter. 327. After appearance attachment' may, on motion, be dis
charged. 328. When not discharged, such vessel, etc., may be sold at
public auction. Application of proceeds. 329. Mariners and others may assert their claim for wages
notwithstanding prior attachment ; how enforced. 330. Proof of the claims of mariners and others. 331. Sheriff's notice of sale shall contain measurement,
tonnage, etc. 332. Appeals may be taken from proceedings under this
§ 317. When vessels, etc., shall be liable. Their liabilities shall constitute liens.
[1860.] All steamers, vessels and boats shall be liable :
1st. For services rendered on board at the request of, or on contract with, their respective owners, masters, agents or consignees;
2d. For supplies furnished for their use at the request of their respective owners, masters, agents or consignees;
3d. For materials furnished for their construction, repair or equipment;
4th. For their wharfage and anchorage within this State ;
5th. For nonperformance or malperformance of any contract for the transportation of persons or property made by their respective owners, masters, agents or consignees;
6th. For injuries committed by them to persons or property.
The said several causes of action shall constitute liens upon all steamers, vessels and boats, and have priority in their order herein enumerated, and shall have preference over all other demands : provided, such liens shall only continue in force for the period of one year from the time the cause of action accrued.
1. General decisions.—The grant of jurisdiction to the Federal Conrts in
cases is not exclusive by its terms; neither is its exercise prohibited to the States; nor is its exercise by the State Courts incompatible with the harmonious working of the system established by the Federal Constitution. Warner : Uncle Sam, 9 Cal. 697.
2. The Court of Admiralty has no application to actions brought ander section three hundred and seventeen of the Practice Act. Sheldon v. Uncle Sam, 18 Cal. 526.
3. First subdivision.-A British seaman on board a British vessel of which a British subject is master, may, when discharged by the master in a port of the United States, without any fault on the part of the seamen, sue for and recover his wages in a State Court. Pugh v. Gillam, 1 Cal. 485.
4. Fifth subdivision.-In an action under the three hundred and seventeenth section of the Practice Act, by husband and wife against a steamship, for injuries inflicted upon her, plaintiffs cannot recover disbursements or expenditures by the husband. For these he must sue alone. Sheldon v. Uncle Sam, 18 Cal. 526.
5. In such a case, the liability of the steamship is measured by that of the owners, and extends to the entire injury sustained. Id.
6. The transportation of property applies to towing other vessel or craft. White v. Mary Ann, 6 Cal. 462.
7. In suits against common carriers, damages for pain of mind are recoverable. Fairchild v. California Stage Co., 13 Cal. 599.
8. Iu an action for breach of contract to convey plaintiffs from San Francisco to San Juan del Sur, in Nicaragua, plaintiffs may recover not only the direct pecunjary loss resulting from the breach of the contract, but also damages for any trandulent or oppressive conduct on the part of detendants producing great bodily or inental suffering. The whole case should go to the jury, and damages be awarded commensurate with the injuries sustained. Jones v. Steamship Cortes, 17 Cal. 487.
9. A contract, under section three hundred and seventeen of the Practice Act, for the transportation of passengers from San Francisco to New York, is an entirety, whether the entire voyage is to be performed in one vessel or not; and a breach of such contract at any point, as leaving the passengers on the Isthmus, renders the vessel liable. Ord v. Steamer Uncle Sam, i3 Cal. 369.
10. Sixth subdivision.-Steamboat companies, in propelling boats on the river, must provide all reasonable precaution to protect the property of others, and they must also be properly used. Carelessness in either particular, resulting to the injury of an innocent party, will make the company liable. Tliey are bound to temper their care according to circumstances of the danger. Gerke v. California Steam Nav. Co., 9 Cal. 251.
11. Part owners have no lien for advances.-A part owner of a vessel has no lien on the shares of the other part owners for his advances and disbursements. Sterling v. Hanson, 1 Cal. 480.
12. In actions against boats and vessels, under the statute, the lien attaches only when service is had in the suit. It was not the intention of the Legislature to make the lien attach when the liability was incurred. Fisher v. White, 8 Cal. 418.
13. As soon as a vessel is seized by a Court of Admiralty, a lien attaches in favor of the party at whose instance the seizure is made. If it was the intention of the Legislature to provide that a lien should only be acquired by attachment, this would virtually be denying a right to creditors for small sums. It wonld be almost impossible for a merchant or mechanic of small capital or credit, who had a claim of a few hundred dollars against one of our large steamers or some seagoing vessel, to give the necessary bonds to detain her until his suit could be determined, and in the meantime, she might be run off and sold free of all such debts or incumbrances. Meiggs v. Scannell, 7 Cal, 408.
§ 318. Actions may be brought directly against such vessels, etc.
Actions for demands arising upon any of the grounds specified in the preceding section may be brought directly against such steamers, vessels or boats.
$ 319. Complaint shall be verified.
The complaint shall designate the steamer, vessel or boat by name, and shall be verified by the oath of the plaintiff, or some one on his behalf.
$ 320. Summons may be served on the master, mate, etc.
The summons attached to a certified copy of the complaint may be served on the master, mate, or any person having charge of the steamer, vessel or boat against which the action is brought.
1. The rule that requires seizure of the thing to give jurisdiction in actions in rem is altered by our statute. Service on a person standing in a particular relation to the thing confers jurisdiction on the Court from which process issues. Averill v. Steamer Hartford, 2 Cal. 309; Meiggs v. Scannell, 8 Id. 408; Fisher v. White, Id. 422.
2. Hence, jurisdiction in rem may exist in several Courts at the same time. Id. 3. The rule of law that possession of personal property is prima facie evidence of ownership is uniform in its application. The question of the ownership of a vessel forms no exception to the rule. Bailey v. New World, 2 Cal. 370.
$ 321. Plaintiff may have vessel, etc., attached.
The plaintiff, at the time of issuing the summons, or at any time afterwards, may have the steamer, vessel or boat, against which the action is brought, with its tackle, apparel and furniture, attached as security for the satisfaction of any judgment that may be recovered therein.
1. In an action against boats and vessels, under the statute, the service of process in the manner prescribed by statute is equivalent to an actual seizure. Meiggs v. Scannell, 7 Cal. 405.
2. In such actions, it is not necessary that the vessel should be attached, in order to acquire a lien as against subsequent purchasers. Id.
§ 322. The Clerk shall issue the writ of attachment.
The Clerk of the Court shall issue a writ of attachment, on the application of the plaintiff, upon receiving a written undertaking on behalf of the plaintiff, executed by two or more sufficient sureties, to the effect that if judgment be rendered in favor of the steamer, vessel or boat, as the case may be, he will pay all costs and damages that may be awarded against him, and all damages which may be sustained by such steamer, vessel or boat from the attachment, not exceeding the sum specified in the undertaking, which shall in no case be less than five hundred dollars, when the attachment is
issued again a steamer or vessel, or less than two hundred dollars when issued against a boat. The undertaking shall be accompanied
a by an affidavit of each of the sureties, that he is a resident and freeholder or householder of the county, and worth double the amount specified in the undertaking over and above all of his just debts and liabilities. The Clerk shall file the undertaking and affidavits.
$ § 323. Such writ shall be directed to the Sheriff. The Sheriff may release upon sufficient undertaking.
The writ shall be directed to the Sheriff of the county within which the steamer, vessel or boat lies, and direct him to attach such steamer, vessel or boat, with its tackle, apparel and furniture, and keep the same in custody until discharged by due course of law; unless the owner, master, agent or consignee thereof give him security by the undertaking of at least two sufficient sureties, in an amount sufficient to satisfy the demand in suit, which shall be specified in the writ, besides costs; in which case, to take such undertaking.
1. Where a bond was given in a case where the vessel was not liable to be attached under the statute : Held, that judgment rendered against the principal and sureries in the bond was erroneous; and that a bond given for the release of a vessel, when the vessel was not liable to seizure under that act, was invalid. McQueen v. The Russell, i Cal. 165.
2. When the bond is given the vessel shall be released, leaving the action to proceed in the same manner against the vessel as if the vessel was not liable. ld.
§ 324. The Sheriff shall execute such writ without delay.
The Sheriff to whom the writ is directed and delivered shall execute the same without delay, and shall, unless the undertaking mentioned in the last section be given, attach and keep in his custody the steamer, vessel or boat named therein, with its tackle, apparel and furniture, until discharged by due course of law; but the Sheriff shall not be authorized by any such writ to interfere with the discharge of any merchandise on board of such steamer, vessel or boat, nor with the removal of any trunks or other property of passengers, or of the captain, mate, seamen, steward, cook or other persons employed on board.