
    Coplinger v. The Steamboat David Gibson.
    The water-craft law of Indiana, providing for the enforcement of liens on vessels, does not extend to contracts made and broken ont of this state, and consequently an attachment suit will not lie for a breach of such a contract.
    An action in rem would not lie at common law.
    The law of a foreign state, where such a contract was made or broken, will not be enforced in a suit upon the contract in this state, unless the law bo pleaded and proved, and even then, no further than our system of practice will enable the Courts to enforce it.
    A suit in personam, as at common law, would lie, and the action would be transitory; but to maintain it, jurisdiction of the person would have to be acquired, either by service of process or voluntary appearance.
    The filing of/an attachment-bond, and tailing depositions on behalf of a vessel, do not constitute a voluntary appearance to the suit, as one in personam.
    
    
      Semble, that the plaintiff in an attachment suit under the statute, might move for leave to amend his complaint, and to have process against the person, so as to change his proceeding to a common-law action.
    
      Tuesday, June 12.
    APPEAL from the Jefferson Circuit Court.
    
      
       Mr. Harrington contended that when the master or other person appears and bonds out the vessel, the action becomes personal; that the Court did not pass upon this point in Carson v. The Talma, 3 Ind. R. 194, decided under the statute of J843. That the complaint does not show that the contract was made out of the stale, and that there is no legal presumption that it was made in another state. 2 Hill, 201. That the case of The J. P. Tweed v. Richards, 9 Ind. R. 525, was disposed of upon the proof and the merits; that in that ease no part of the contract was to be performed within the waters of this state, and there was no proof that the laws of Louisiana or Tennessee gave a lion upon the boat, &c. That the attachment was erroneously set aside; that the lex loci contractus may control even whore the contract is to be performed and is broken wholly in another state, i. e. if the lex loci gives the right, and the lex fori a remedy, that remedy may be enforced in our state. 9 Ind. R. 525. —Story’s Confl. of Laws, § 3226. That upon the motion to quash the attachment, and before the decision, the appellant produced before the Court an authenticated copy of the statute of Ohio giving the remedy against the boat; and read it in the argument, the issues not then being formed, and the same is before this Court. That if the attachment was properly set aside, it was error to dismiss the entire action; that the case was not like a foreign attachment, a party having appeared, and, by giving bond, changed the action from one in rem to one in personam. 6 Blackf. 291.—2 Ind. R. 535.—1 id. 121. That, hence, if the complaint was substantially defective, the defendant should have demurred. That the objection that the plaintiff could not bring the action, was not tenable, even if it could have been made upon motion. Hancock v. Ritchie, 11 Ind. R. 48.
    
    
      
       Messrs. Dunn and Hendricks, contra:
      
      That this water-craft lion law applies only to contracts made in this state, or, at least, those made with reference to the laws of this state, is a proposition now well settled. The J. P. Tweed v. Richards, 9 Ind. R. 525.—Tlte Steamboat Champion v. Jantzer, 16 Ohio R. 91.—Goodsill v. The Brig St. Louis, 16 id. 178.
      The general principle that such statutes can have no extra-territorial operation has long been well established.
      As long ago as 4820, this Court held that our statute making certain words actionable, could not be applied to words spoken out of the state. 1 Blackf. 71. It is “held that a statute giving damages to a personal representative, or to surviving relatives for destruction of life, has no extra-territorial effect.” Campbell v. Rogers, in the Superior Court of Cincinnati, 4 Am. Law Reg., 747. Many similar cases might be cited.
      
        But it is said that tho complaint does not show that this contract to transport was made without the state of Indiana. Here wo differ upon a point of fact simply, and ask that the question be tried by the record. As we read the complaint, it shows that tho property was shipped at Cincinnati, Ohio, to be transported to Johnson’s landing in Arkansas, in which last-named state the contract is alleged to have been broken. The complaint certainly says, “and that the said McKinley, captain at said time of said boat, received said property on board said steamer at Cincinnati, Ohio, and agreed to carry the same from said place to said Johnson’s landing aforesaid.” The complaint shows where Johnson’s landing is, viz., in the county of Chicot, and state of Arkansas, and opposite to Point Worthington, in Mississippi.
      
      But it is suggested that as the boat in performing her voyage, must necessarily navigate tho river border of this state, she therefore became liable to the laws of Indiana. We will not here stop to argue that the Ohio river bordering-upon this state, is not within it, and forms no part of it; that its north-eastern low-water mark bounds our territory; that it is a common highway along our border, the fee simple or ultimato dominion of which, beyond low-water mark, is in Kentucky, though Indiana has a limited jurisdiction over it. We will not, either, attempt to point out the intolerable confusion and evil that would result, if it should be established that a contract of affreightment made in Ohio, to be performed in Arkansas, is subject to the local laws of each and every riparian sovereignty along- whose borders the boat must pass in performing her voyage. We will only, upon this point, say that we know of but two jurisdictions whose laws have been allowed to govern contracts, viz., the laws of the place of tho contract, and those of the place of performance. We need not here inquire which law would govern in this case. The result here would be the same, whether the law of Ohio or that of Arkansas applies. This proposition of plaintiff’s counsel seems to us to be entirely novel, and he has not thought it necessary to fortify it either by authority or reasoning.
      But it is said that a motion to dismiss would not lie; that although the action was at first in rem, yet a bond being- filed and the boat discharged, it became a proceeding in personam against the master. This is true. It was so held under the water-craft law of 1843, and tho decisions are equally applicable under tho present code. But it is also true that under the code of 1843, the same use was made of the motion to dismiss, that was made in this cascj and that tho practice was held correct in this Court.
      It is true, that after bond filed, the action became personal against the master, but for what? Certainly for any claim that may be established under the statute against the boat, and no other. The legal effect of his bond, and of the judgment in personam against him, is that ho shall respond personally to anjr claim that the boat would have been subjected to had she remained in the custody of the law. It does not become a personal action to enforce any personal claim that may have existed previously against tho master, but simply to enforce against him personally any claim that may be found a lien under the statute against the boat. It surely would not be pretended that after a boat has been attached, say, as for supplies furnished, and tho master has procured her release by substituting his own bond with surety, the plaintiff might go on to prove any individual claim against him or the owners of the boat, though constituting no lien under the statute against the hoat. This would render the water craft law an efficient machinery for -fictitious commencement of suit, and might seriously confound the statutes giving to the Courts their jurisdiction over the persons of defendants. The bond may be given by the defendant herself, or by the master, owner, or consignee, and its condition is, the defendant will perform the judgment of the Court.” 2 B. S. p. 184, § 661.
      This clearly indicates the truth of what we contend for, viz., that the substituted defendant is liable in personam only for whatever judgment the vessel herself would have been liable for, if she had not been bonded out and discharged. In 1 Ind. B. 123, the Court, speaking of a water-craft attachment-bond, say: “It was, in most respects, similar to an appeal-bond, and upon non-payment of the proper judgment in the attachment suit, its conditions would have been broken.” We understand that such a bond covers only such claims as exist against the boat—that is, such claims as the statute makes liens upon the boat, and for the recovery of which the boat may be sued as a person. If this is true, it must necessarily follow that when the attachment is discharged, the action goes out of Court—nothing remains to be adjudicated upon. If it may still proceed in personam against the substituted party, then there is no practical difference between an attachment authorized by statute, and one not authorized—between one regularly issued,' and one irregularly issued. In either case, the master or owner is compelled to give bond to obtain restitution of the boat, or to have her tied up in port while the suit is pending. If he does give bond, it matters nothing, according to this doctrine, whether there was any lien under the statute against the boat or not, provided there existed a personal lien against the master or owner. By virtue of the attachment, as it is claimed, the Court has obtained jurisdiction to try the personal claim against the master or owner, even though the attachment was utterly unauthorized by law, and notwithstanding the Court might have had no jurisdiction of the person of the master or owner by reason of his residence, if the suit had been brought in the ordinary way. The Lawrenceburgh Ferry-Boat v. Smith, 7 Ind. R. 520, shows that the personal judgment must be for whatever the boat would have been liable for in rem, had there been no substitutiou. There Pratt neither owed, nor was liable for anything personally. If in sueli case, the judgment is rendered against the boat, it is considered but a formal error. Ibid.
      
      When it is urged that a motion to quash an attachment will not lie after a natural person has come in as defendant, we simply answer that it is decided differently. Carson v. The Talma, 3 Ind. R. 194. The practice of moving to quash is familiar in all cases of seizure either of property or person. This being entirely a statutory proceeding, the attachment should appear on the face of the proceedings to be authorized by the statute. A steamboat can bo treated as a person, only whore the statute clearly authorizes it to be so treated. If the complaint on which the attachment is issued, shows that the proceedings were not within the statute, and that the seizure was unlawful, a motion to quash is obviously proper.
      But it is said that in this case the motion came too late, and was waived—
      1st. Because the boat had been bonded out in vacation.
      2d. Because the parties had taken depositions in the case in vacation.
      As to this first reason for the objection, it is set at rest by the case in 3 Ind. B. 194. It is true, as stated, that that decision was made under the statutes of 1843, but it is equally applicable to the similar provisions of the present code. Where an irregular attachment might ho made in vacation of Court, it would be most unreasonable to say to the owner of a boat, “you must either waive this irregularity, or suffer your vessel to remain in custody, rotting in the docks, until-Court meets.” It is but reasonable that he should be allowed to give security equivalent to the .boat herself for the performance of any judgment that might go against the boat, and then come into Court with the same rights he would have if the boat was still held by the sheriff. This course operates hardship upon neither party. In procuring restitution of his boat, he only admits that she was attached, not that she was regularly attached. He waives no irregularity, for he has no opportunity to complain of any, and, hence, it is decided as in 3 Ind. It. 194.
      As to the other reason assigned for the position that the right to the motion was waived, viz., that the parties had taken depositions in the case, we have only to say that this is the first time we ever heard it suggested that taking depositions in vacation is an appearance to the action.
      Again, it is urged by plaintiff’s counsel, that though a lien may not exist on the boat, under the statute of this state (although he says in his brief that the proceedings were commenced under the Indiana statute), still the proceedings would lie under the Ohio statute, and that statute was brought to the attention of the Circuit Court, by being read to the Court by plaintiff’s counsel in his argument.
      We do not feel called upon hero to discuss the question whether this proceeding might or might not have been maintained, if it had been commenced in an Ohio Court. We merely submit, first, that the Ohio statute was neither pleaded nor proved in the Circuit Court; and, second, that if it had been, our Courts would not enforce the peculiar remedies known to the practice of other states. •*
      Suppose the pleadings had gone on to issue in the Court below, and the plaintiff had replied the Ohio statute. This would have been bad—
      1st. Because it would have been a departure—the complaint counting upon a lien under one law, and the reply upon a lien under another.
      2d. It would have been an attempt to enforce in Indiana not only a right springing out of an Ohio statute, but to do so by means of the peculiar machinery prescribed by the Ohio legislature to the Ohio Courts. This could not have been allowed. 16 Ohio R. 180.
      Birt it is unnecessary to speak of what might have been or might not have been done, since the fact is that the suit was commenced under our own watercraft law, and the Ohio law was, in no legal sense, before the Court at all.
      This whole case, then, is simply this: The plaintiff files a sworn complaint against the boat, showing a contract made in Ohio, to be performed in Arkansas, and broken in Arkansas. He has the boat seized under his attachment in vacation, and McKinley, the master, gives bond to the sheriff, and obtains her discharge. At the first term, and on the first calling, the defendant moves to quash the attachment, because the complaint shows no facts bringing the case within the statute authorizing such attachment, and the motion was sustained.
    
   Perkins, J.

J.— Coplinger filed his complaint in the Jefferson Circuit Court, alleging that he shipped certain articles of freight upon the steamboat David Gibson, at Cincinnati, Ohio, to be delivered to one Johnson, at his landing in Chicot, state of Arkansas, for a certain consideration to be paid; that the articles were not delivered at said landing in Chicot, but were taken to and left at New Orleans, in the state of Louisiana; that damages accrued to him, by the breach of said contract, to the amount of 350 dollars, which, he prayed, might be enforced against said steamboat Gibson, then lying in the waters of the Ohio river, opposite Jefferson county, Indiana. The boat was seized by, and was bonded out from under, an attachment, in vacation, her master executing the bonds, who also took some depositions touching the case, during the vacation.

At the next term of the Court, when the cause was called, the plaintiff moved for a rule for an answer, and the defendant interposed a motion that the attachment be discharged or quashed, and the suit dismissed for causes then assigned.

The Court sustained the defendant’s motion, and dismissed the cause.

This proceeding was instituted under the water-craft law of Indiana; but the case of The Steamboat, &c. v. Richardson, 9 Ind. R. 525, decides that that law does not extend to contracts made and broken out of this state. Perk. Pr., p. 520 . It is clear from the allegations of the complaint, that the contract described therein was made and broken out of this state.

Such a proceeding is not authorized by the common law.

But it was contended that the law of Ohio upon this subject was similar to that of Indiana, and that the Courts of Indiana would enforce the Ohio law. They might have done so, had the Ohio law been pleaded and proved; not otherwise. Wilson v. Clark, 11 Ind. R. 385. Even were the Ohio law pleaded in a given case, the Courts of this state would not enforce it further than our own system of judicial proceedings would enable them to do so. Doe v. Collins, 1 Ind. R. 24. See 4 Am. Law Reg., pp. 119, 747.

The pending suit cortld not, then, be maintained against the boat, and the attachment was rightly quashed.

Was the suit rightly dismissed?

A suit in personam, as at common law, could be maintained on the cause of action described in the complaint; and the action would be transitory; but to maintain it, jurisdiction over the person would have to be acquired, either by service of process, or the voluntary appearance of the party.

The filing of the bond and taking of depositions in this case, did not constitute a voluntary appearance to the suit, as one in personam. Ind. Dig., pp. 126, 154.

When the attachment was quashed, then, there was on file in the Court simply a complaint for an attachment. For that purpose, it was unavailing, and should not encumber the docket. Had the plaintiff interposed a motion, before the cause was dismissed, for leave to amend his complaint, and for process against the person, so as to have changed his proceeding to a common-law action, perhaps such a motion should have been granted.

H. W. Harrington, for the appellant .

W. M. Dwm and A. W. Hendricks, for the boat .

Per Curiam.

The judgment is affirmed with costs. 
      
       2S. S. p. 183.
     