
    Austin P. Henning v. Steamer St. Helena and Owners.
    A privilege follows the object to which it is attached, and the creditor may lay hold of that object by the proper writ of seizure, in whatever part of the State it may be found, whether at the owner’s domicil or not.
    'In proceedings in rem personal service upon the owner of the thing seized dispenses with the usual publications.
    The owners and masters of steamboats when sued in this State may plead their domicil in another parish than the one in which the suit is instituted.
    
      APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.
    1-L Elmore and King, for the plaintiff, and C. de Choiseul, for intervenors,
    contended: The plaintiff brought suit in the Fourth District Court of New Orleans against The steamer St. Helena, Captain and Owners, for his services as pilot of the said vessel. He also caused the vessel to be provisionally seized. Ross, one of the owners and the captain, and Drew, who was the other part owner, appeared and excepted to the jurisdiction of the court, upon the ground of their domicils being one of them in the parish of Carroll, and the other in the parish of Franklin, in this State.
    The judge of the lower court upon the trial of this exception dismissed the suit, so far as it bore personally upon the defendants, but maintained the suit so far as it related to the liability of the vessel.
    The plaintiff and some of the intervenors took judgment by default against the vessel, which they subsequently confirmed. From this judgment of confirmation the defendants Ross and Drew have appealed.
    The plaintiff has joined in the appeal, and prays for a confirmation of the judgment of the lower court against the vessel, and for a reversal of the judgment sustaining the exceptions to the jurisdiction of the court, as to the personal liability of the defendants.
    1st. As to the exceptions of the defendants to the jurisdiction of the court: the evidence proved the domicil of Dreiv, when not engaged in boating, to have been in the parish of Carroll. The domicil of the captain, with the same reservation, was in the parish of Franklin. The vessel was enrolled in New Orleans, and traded to this port, navigating the Mississippi and Ouachita rivers.
    On the part of the defendants, it is contended that the suit must be dismissed in toto. That the vessel cannot be proceeded against, unless the owners are sued at their domicils.
    If this position be correct the remedy against the vessel is entirely destroyed. She never touched the parish of Franklin in any of her voyages. It was impossible to seize her in that parish, and writs of provisional seizure cannot be sent from one parish to another.
    If the doctrine contended for be the law, owners and masters of vessels-can easily avoid the liability of their vessels by domiciliating themselves in parishes where their vessels never go. The doctrine leads to consequences ruinous to the commercial interests of the country.
    On the other hand, we contend, the law clearly makes the vessel liable for the wages of the seamen. C. C. 3204, 2726. C. P. 289, 290. Burke v. Clark, 11 L. R. 209. Abbott, on Shipping, 474.
    In the absence of the owners or other representatives, the vessel may be proceeded against in rent. C. P. 290, 291.
    The presence of the owner certainly does not take away the right to make the vessel liable. This right may be exercised wherever the vessel is found, but more especially at her home port, or place of enrollment, which is properly speaking the domicil of the vessel. Any other construction of the law would defeat the undeniable right of privileged creditors, to have recourse to the vessel for the payment of tlioir claims. 'When there is a right, it is the duty of the courts to afford a remedy. C. C. 21. C. P. 14, 15.
    We further contend that the action against the owners and captain in personam should be maintained. Owners of steamboats running them on their own account are commercial partners. Partners in a commercial firm are bound to answer, when sued at their place of business, wherever they may reside. C. P. 198, 165. Hobson v. Whittemore, 13 L. R. 422. Marsh v. Marsh et al., 9 R. R. 45. Bringerv. Griffin, 2d Ann. 154. Service of citation at the domicil of one of the partners is not good, it should be at the store. Abatv. Holmes, 8 N. S. 147. Partners who run steamboats, if they have any place of business at all, certainly the home port may be so considered. Their place of business in fact is wherever the boat does business, and they may be properly sued at every such place. C. P. 165.
    The judgment by default was properly confirmed in the lower court, and should be sustained.
    
      Wolfe and Singleton, for defendants,
    contended: The plaintiff instituted the above suit to recover the sum of $371 50, alleged to be due him for services rendered on said boat.
    
      T. N. Drew, the sole owner of said boat, and J. R. Ross, the captain, filed each a plea to the jurisdiction of the court, on the ground that the former resided in the parish of Carroll, and the latter in the parish of Franklin, in this State. The judge of the lower court sustained both exceptions, and dismissed the suit as to the defendants, but maintained his jurisdiction over the boat seized.
    The judge did not err in sustaining the pleas to the jurisdiction of the court. The evidence fully sustained him. It is full, clear and uncontradicted. Richard v. Kimball, 5 R. R. 142.
    We will now consider the legality of the proceedings after the suit was dismissed as to both the defendants. Had the judge of the lower court any light, under the pleadings, to give judgment against the steamer as in an action in rem, after he had dismissed the suit as to the defendants? In order to understand the matter fully, we will here insert the petition and affidavit filed by plaintiff when he instituted this suit: To the Honoxuble the Judge of the Fourtli District Court of New Ox-leans: The petition of Austin P. Henning, who resides in New Orleans, v. The steamer Si. Helena, and J. R. Ross and Thomas N. Drew, owners of the said steamei-, respectfully represent: That the said vessel and owners are justly indebted to him for the sum of three hundred and seventy-one dollars and fifty cents, for his services as pilot on said vessel, as more fully appeai-s from the annexed due bill given him by the clerk of the said boat. That the said sum is due and unpaid, although amicably demanded. Wherefore he prays that the annexed affidavit being considered that the said vessel be provisionally seized, and that after due proceedingshad, that she and her said ownei's be condemned in solido to pay the aforesaid sum and costs, and that he be allowed a pi'ivilege upon said vessel, and for all other relief, &c., &e.
    (Signed) Euimoiu?, and Kins.
    The affidavit is as follows: Austin P. Henning, being duly sworn, states that the steamer St. Helena and owners are justly indebted to him for the sum of three hundred and seventy-one dollars and fifty cents, for his wages as pilot on said steamer. The said vessel is on the eve of leaving the jurisdiction of the court, and that he is apprehensive of loosing his claim, should said vessel depart previous to his demand being satisfied.
    On an examination of the petition, your honoi's will pei'ceive that it is an action in personam, claiming alien on the steamer St. Helena. The petition and affidavit possess none of the requisites of an action in rem. The petition names the pei'sons sued, and asks that they be dealt with according to law.
    A party cannot maintain an action in rem unless he has a lien or privilege on a thing, either lost or abandoned by the owner, or whose owner is either absent or unknown. C. P. 290. Was the steamer St. Helena either lost or abandoned by the ownei's thereof? Certainly not. The plaintiff states in his affidavit that he fears she will be moved beyond the jurisdiction of the court, and therefore asks that she be provisionally seized. Was the owner either absent or unknown? There is nothing in the proceedings to bring us to such a conclusion. The owner and captain both appeared and claimed the vessel. They were cited, as is stated by the plaintiff’s counsel in their motion for judgment by default.
    Had the circumstances of the case really justified the plaintiff in proceeding in rem, the judgment of the lower court is irregular and illegal, and will not be sustained by this court. Among other things, the law requires the creditor proceeding in rem to state under oath, that the thing on which he has a privilege has been either lost or abandoned by the owner, of whoso name he is ignorant, or that it belongs to some person unknown to him or absent. The affidavit contains no such statement, but it does state the name of the owner of the boat, that the boat is not abandoned, and that he feax-s it will be removed from the jurisdiction of the court.
    The law also requires, that the court before which an action in rem has been instituted, to order the sheriff, who has seized the thing proceeded against, to give public notice to all pex-sons intei'ested to appear within fifteen days, to answer to the petition as presented. No such order was ever made by the judge, and no suclx public notice was ever made by the sheriff. C. P. 292, 293.
    The law further provides, that at the expiration of the fifteen days, if no one appear to answer the petition, the plaintiff may X'equii'e that an advocate be appointed to defend the absent owner, &c. In the present suit no advocate was appointed until after the appeal was taken by the defendants, when Wm. Hagan W'as appointed, and for what purpose we are unable to divine. Ve represented the defendants throughout the suit, who were present, and claimed the property seized.
    
      We think the. judge did not err in admitting the enrollment. It was made under oath, and at a time not suspicious, and corroborated by the testimony of all the witnesses examined.
    For the convenience of the court we will here insert our assignment of errors apparent on the record. 1st. That the exceptions to the jurisdiction of the court being sustained, the court could no longer proceed legally in the cause, and should have taken no further proceedings therein. 2d That the judgment by default taken against the steamer St. Helena, after the suit was dismissed as to the defendants, was irregular and illegal. The action was not in rem, and no default could be legally taken against the boat The writ of provisional seizure issued in the suit was accessary to the action, and could not control it, or give jurisdiction to the court over the thing seized, when the. courtbad no jurisdiction over the persons of the defendants, who were in possession of it. Hollander v. Nicholas, 3 R. R. 7. 3d. The judge erred in giving judgment against the boat in rem, because there was no such action brought, and the court has no power to change an action in personam to an action in rem. 4th Piad the action been really an action in rem, the judgment rendered therein is clearly erroneous, as appears from matters apparent on the record, in the following points : 1st The plaintiff does not state under oath, at the foot of his petition or elsewhere, that the boat was either lost or abandoned by the owner, of whose name he is ignorant, or that the thing (the boat) belonged to some one unknown or absent.. C. P. 291. 2d. The public notice required to be given in case of seizure in rem was never given. C. P. 292. 3d No advocnte was appointed to represent the boat in an action in rem; we represented the owners and captain, who were present and in possession of the boat, and appeared in court and claimed the same. C. P. 294.
   The judgment of the court was pronounced by

Slidell, J.

The plaintiff obtained, upon affidavit, an order of provisional seizure of the steamer St. Helena. He also asked a judgment with privilege against the vessel, and a personal judgment against her owner and captain. His claim was for services as pilot of the vessel. The suit was brought in the Fourth District Court of New Orleans. A number of creditors, for wages, supplies, &c., intervened. They obtained judgments against the steamer with privilege for their respective claims. But the district judge, upon exceptions of domicil, dismissed the proceedings in personam, upon the ground that the captain and owner both resided out of New Orleans, the former in Franklin, and the latter in Carroll parish.

The case is presented here by the appellants upon various assignments of error. The plaintiff in an answer to the appeal prays for a personal judgment against the captain and owner.

Our attention will be first directed to the question whether the exception of domicil was properly maintained.

The Code of Practice declares it to be a general rule, in civil matters, that one must be sued before the judge having jurisdiction over the place where he has his domicil or residence. Ait. 162. It then proceeds to enumerate, in articles 163, 164, certain exceptions to this rule. The present case is not covered by the exceptions. There is much plausibility in the argument that the defendants, so far as their personal liability is concerned, are entitled to the benefit of the general rule; and the tendency of our jurisprudence has been to protect, with strictness, the right of the citizen in this particular. See Ricard v. Kimball, 5 R. R. 142.

But in our opinion the question whether the plaintiff shall be permitted to enforce his privilege in any other foruna than that of the owner’s domicil, stands upon a very different footing. The law has expressly given persons employed in navigating vessels a privilege upon them. C. C. 3204. The Code of Practice has expressly provided a form of remedy for its enforcement. C. P. 285, 289. But if the remedy can only be exercised at the domicil of the owner, the strange consequence would result, that in many cases the remedy would be impracticable, and the right useless. A man might employ his vessel in one part of the State, and live in another, which the vessel never visited, and where perhaps it would be physically impossible that she should ever come. We know of no express provision of our Code of Practice which would compel us to adopt a conclusion so unjust and unreasonable; and we therefore feel bound to recognise such a practice as will carry out the intention of the lawgiver when he conferred the privilege, and make it really useful to the meritorious class of creditors to whom it was given. The only way to do this is to consider the privilege as following the object upon which it is by law attached, and permit the creditor to lay hold of that object for the satisfaction of his claim in whatever part of the State he finds it. See Merlin Repert. verbo Action, sec. 3.

W e are aware that this view conflicts with the opinion in Hollander v. Nicholas, 3 R. R. 7; but we think the ground on which the matter is there put too narrow and technical. That was the case of an overseer, who was employed upon a plantation in the parish of St. Mary by the defendant, a resident of the parish of St. James. It was under the law a part of the agreement between the overseer and his employer that his wages should be guarantied by the crop. The defendant, without paying the overseer, was about to remove tho crop out of the parish of St. Mary. As a matter of course it was to go, not to the parish of St. James, but to a market, New Orleans, or the North. The seizure was quashed, and the creditor was ordered to go to St. James. “The privilege,” said Garland, J., “accorded bylaw to overseers to secure the payment of their wages is like all others, an accessory to the principal obligation, and must follow it. The doctrine contended for would make the principal subservient to the accessory, 'lhe exception is not made by law, and cannot be allowed by us. C. C. art. 3153, 3184. C. P. 162, 284.” Undoubtedly, the privilege is an accessory to the principal obligation; but it does not follow that the remedy in rem and the remedy in personam, are inseparable. The mortgage creditor may seize and sell the land without resorting to the personal liability. So the pledgee may proceed to have the thing pledged judicially sold, without cumulating a prayer for personal judgment. And, in the absence of any prohibition in the Code of Practice, we see nothing unreasonable in disconnecting the enforcement of the privilege from the personal pursuit, when it is impossible to pursue both together. Where there is a right there should be a remedy; it would be a mockery to acknowledge the right, and yet send a creditor to another forum, where the enforcement of the right would be impracticable.

The article 290 does not cover the present case. It is provided for in article 289.-

Even if newspaper publications are necessary in a case of this kind — upon which point we express no opinion — the necessity, so far as the defendants are concerned, was obviated by personal notice of the proceedings.

The judgment of the district court is therefore affirmed, with costs.  