Nimick v. Louisiana Tehuantepec Co.

Dukeed, J. The present contest is between two subsequent attacking creditors, the Merchants’ Bank of New Orleans and the Louisiana State Bank, and the case presents a single question of law for our determination, and that is whether a vessel employed in navigation, in and out of the waters ef the State, is liable to an attachment while the debt is not yet due. The articles 242, 243 and 244 of the Code of Practice, as amended by the Act of 1826, p. 170, sec. 7, authorize, in general terms, the issuing- of the writ, whether the obligation be due or not. It is however contended, that vessels and steamboats, which, from their nature. and destination, must necessarily be taken out of the State, can not, by a sound construction of the law on the subject, fall within the general rule, and that they are impliedly exempted from attachment, as long as the debt is not demandable; and'we are referred to the cases of Jkissel el al. v. Wilson, 18 La. 370, and W. H. Hogan v. <?. W. Garras, 12 An. 49. The plaintiffs and defendants in those suits were all non-residents and stood in the relation of vendors and vendees of the steamboats attached to satisfy the unmatured obligations which had been given in part payment of the price; and as the contracts had for their immediate object vessels whose destination, in and out of any particular State, varies according to circumstances, it was rightly held, that the parties must have been aware, when contracting, that those .steamboats would, in all likelihood, run through different States, hence the exception. It is true that the argumenta! part of those decisions takes a wider range; and we are now asked to adopt the same, in its most enlarged sense, by absolutely decreeing that a vessel can, in no case, be attached for a debt not yet due. Were we to so declare, all exporting raw materials and goods generally, would likewise, by a parity of reason, be exempted; for example, cotton skipped by a Mississippi planter to New Orleans for sale, and Louisiana sugar in transit for a Western market, could not be reached by such a process; for it is well known by all creditors that cotton is seldom sold in the gin-house, and sugar on the cistern. [47] We understand tire exception to be, tliat ail contracts made with the owners and employees of vessels, knowing them to be such, and for debts chargeable to such vessels, cannot be enforced by the process of attachment before the maturity of the obligation. The case at bar does not fall within the exception; for it is not in evidence that the attaching creditors, the Merchants’ Bank of New Orleans, contracted with the acceptors of the bills of exchange sued on, and defendants herein, Hargous Bros,, a commercial firm in the city of New York, in their character of owners of the property attached, the steamship Ooatzacoalcos. We will here add, as a further reason, that the Merchants’ Bank were, in some measure, forced to adopt this mode of proceeding for their own protection, as other creditors had already sequestered and attached the steamship for debts contracted by the Louisiana Tehuantepec Company, who were the apparent owners of the vessel. The District Judge maintained the attachment, and ordered the Merchants’ Bank to be paid by preference over the opposing and subsequent attaching creditors, the Louisiana State Bank, out of the proceeds of the sale of the attached property. Judgment affirmed, with costs.