
    TERRY vs. TERRY ET AL.
    Eastmot Dist.
    
      June, 1836.
    APPEAL PROM THE COURT OP THE PXRST JUDICIAL DISTRICT.
    A sequestration of the funds of the defendant in the marshal’s hands, does not have the effect of an attachment to bring the party into court by liis property. If the defendant is absent in such case, and there is no curator ad litem, or ad hoc appointed to represent him, hut only service of citation on the attorney appointed to defend the suit, it will be dismissed as to him.
    Where the plaintiff was prevented by the excess of his claim, from going before a court of limited jurisdiction, to contest and litigate his rank and privilege with another creditor, who was seeking a judgment with a privilege against the common debtor in said court: Held, that he can compel his adversary to come into a higher court to litigate their claims.
    The vendor of a vessel or other moveable property not paid for, is entitled to a privilege on its proceeds, when sold by a forced sale, in a suit against his vendee for the price, even when he has taken a note and allowed a credit; but his privilege is of inferior rank to that of a creditor who has furnished supplies to the vessel.
    This is an action in which the plaintiff seeks to recover the sum of five hundred dollars, as a privileged claim on the proceeds of the sale of a barge, in the hands of the city marshal of New-Orleans.
    The plaintiff alleges, he is the holder of two promissory notes, one for one hundred dollars and the other for four hundred dollars, executed by J. C. Terry, for the purchase of the barge Volunteer; that said barge has been attached and seized by various creditors of said J. C. Terry, and sold by the city marshal of New-Orleans for the sum of eight hundred dollars, on a credit of ninety days.
    The plaintiff further shows, that he is a privileged creditor on the proceeds of said barge, yet in the hands of the city marshal for the amount of said notes, which he prays may be sequestered and held subject to such judgment as shall be rendered in the caseand he prays judgment for the amount of his claim.
    An attorney was appointed to defend the interest of the defendant, who, it was suggested, had departed from the state.
    In an amended petition, the plaintiff alleges, that one William Bowman, was prosecuting a claim of about two hundred and ninety dollars against the proceeds of said barge, in the City Court of New-Orleans, which claim, he alleges, is not a privileged or valid one; but that his (plaintiff’s) claim is too large to be litigated in the City Court: wherefore, he prays that Bowman and the city marshal be cited and made parties to this suit, and that he have judgment against them for the amount of any moneys Bowman may have received, and for so much in the hands of the marshal as will satisfy his claim.
    
      Bowman appeared and excepted to the supplemental petition, as making new parties, and setting forth new and totally distinct causes of action from that in the original petition; that it prays for the annulling such judgment as Bowman may and has obtained in the City Court, which this court is incompetent to pronounce: and further, that the right of preference claimed by the plaintiff on the proceeds of the barge is res judicata, having been passed upon by the City Court of competent jurisdiction.
    The attorney for the absent defendant pleaded a general denial, and required strict proof.
    While this suit was pending, to wit, on the 19th June, f835, Bowman obtained his judgment in the City Court for two hundred and ninety-six dollars, with a privilege on the proceeds of the barge. Several other persons had also obtained judgments against the barge, for seamen’s wages, &c., amounting in all to five hundred and thirty-five dollars and ninety-one cents, under which she was seized and sold in the first instance.
    The district judge delivered his judgment, overruling the exceptions, as follows:
    “It is obvious these exceptions do not raise the real difficulty of the case; for as to the first exception, the suit was originally against Jeremiah Terry, and such an exception could not therefore be raised by Bowman. If any thing, it might be said the original petition was defective, in not having in the outset made Bowman (a real party in interest) party to the suit, if J. O. Terry had a knowledge of the institution of Bowman’s suit, when he filed his petition; nor is there any change in ‘the nature of the claim. The second exception is without point, as it objects only to the nature of the relief prayed for. It is not to be supposed that the District Court will give any relief, or make a decree it is incompetent to make. The judgment, Bowman vs. Jeremiah Terry, may well stand, and yet J. O. Terry be entitled to the proceeds of the Volunteer; for although Bowman may have a right to them, as against Jeremiah Terry, he may not have a right to them as against J. O. Terry, and that question was certainly not litigated when the judgment, Bowman vs. Jeremiah Terry, was rendered in the City Court. As to the third exception, it touches upon the real question in a collateral manner, viz: whether J. 0. Terry was bound to litigate his claim for five hundred dollars, in the City Court. If Bowman had obtained his judgment, and received its amount before J. O. Terry had instituted any proceedings, the case would have been embarrassed with new difficulties; but we are spared the necessity of investigating that question, by a reference to the dates of the proceedings. Bowman was served with the petition and citation out of the District Court, on the 1st July, 1835, and he did not take his last rule on J. O. Terry and the marshal, to show cause why he should not be paid his judgment out of the proceeds of the barge, until 20th August, 1835.
    “I cannot suppose that J. O. Terry was bound on the rule taken on him, to go into the City Court and litigate his claim of five hundred dollars. Bowman was aware of the extent of J. O. Terry’s claim, and I must suppose, knew, when the rule was taken and decided, the existence of the suit, as the judgment of the City Court refers to that proceeding. I am disposed to give full effect to all the articles cited by the presiding judge of the City Court; but the question presents itself to my mind under these points of view:
    “ 1. The City Court is a court of limited jurisdiction. No claim for any debt, &c., beyond three hundred dollars, can be litigated there.
    “2. The constitution gives a right of appeal for sums exceeding three hundred dollars, to the Supreme Court, and no provision is made for an appeal from the City Court to the Supreme Court.
    “ 3. The Code, in various articles, provides that the distribution of the proceeds of property seized and sold on execution, should be made by the court out of which the execution issues; but if there be a conflict between these articles of the Code and, the more general laws, and other articles of the Code and of the constitution relative to jurisdiction, &c., the minor articles or regulations of th,e Code must be so construed, limited or modified, as not to impair a more general law or right,, more especially if it be a constitutional one. They are subordinate provisions of the law, and more especially the whole must be so construed,'as that there be not a failure'of justice.
    “ I cannot suppose that it was intended by the laws, that a mortgage or privilege creditor for a sum of three hundred dollars, is to stand by and quietly permit his pledge to be sold, and the proceeds distributed among smaller creditors, or paid over to the debtor to be dissipated, because the law allows creditors for sums under three hundred dollars to sue in Parish Courts in the country, or in courts of limited jurisdiction in the city, while the same laws incapacitate and prohibit those courts from entertaining jurisdiction of his claim or debt for a larger ainount, while on the other hand there will be no failure of justice if the litigation be brought into the higher court.
    “ The case is likely frequently to occur as to the privileged claims, and I see no way of preventing a failure of justice, but by drawing the litigation into a jurisdiction co-extensive with the right claimed, otherwise the creditor must lose his right of property, or of appeal, or both. I consider it to be on reasons of this kind, that the case of' Lawes vs. Chinn, 4 Martin, N. S., 390, was decided, and the court put the decision on the necessity of the case. The case of Yail against U. S. marshal, Nicholson, covered the whole ground. The case of Oger against Daunoy, 7 Martin, N. S., 656, appears much in point for the defendant, Bowman; for the court there decided, that Oger, who alleged that his property was seized on an execution against Harland, could not enjoin the sale, or recover the property itself from Daunoy, the marshal, in the District Court, because of article 395 et seq., of Code of Practice, but that he might recover its value from Daunoy in that court. My understanding is too practical to understand the value of distinctions, where there are no differences. In ,the dilemma raised by contradictory provisions of law, it appears to me, that in substance there were but two solutions of the difficulty: either to say, that Oger might claim his goods or their value, without regard to the limitation of the jurisdiction of the City Court, when they were under seizure by execution out of that court; or to say, that when the property claimed was of the value of an amount beyond the jurisdiction of the City Court, the third person, whose property was seized, might come into the District Court, to claim out of the funds of the marshal, and that the Code of Practice, 395, et seq., ex necessitati rei did not apply in such a case.
    “ In the present case it may be said, upon principles anala-gous to the reasoning used in Oger against Daunoy, that the sequestration will not hold, but that if Bowman receives money, with the notice that another person claims a better-right to it, he might, when that right is established, ex equo et bono, to be made to refund it; but this is to get around the difficulty, not to meet it. It is to observe the law to the letter, but break it to the spirit. Nor does it do complete justice, and it does not meet all the cases which will arise. If the maxim, c est boni judiéis ampliare jurisdictionem,’ be meant to convey the opinion, that courts should grasp at power, I disclaim it as practice or as principle. If it be meant to convey the opinion, that courts ought to prevent a failure of justice, it is a sacred principle; and Civil Code, article 21, which directs that in civil matters where there is no express law, the judge is bound to proceed and decide-according to equity, applies as fully in a case where there is a conflict of laws, or of provisions of the law, as in a case where express law is wanting. Equity calls for remedies adapted to its rights, for rights are of no practical benefit, without remedies to enforce them. These being my views, I am of opinion, that after it was made known to the City Court, that a creditor to an amount beyond its jurisdiction, had on that account applied to the District Court, to establish his rights upon the property seized and sold under process from the City Court, nothing further should have been done in that court, and that if plaintiff makes out his claim of higher privilege, &c., Bowman cannot be allowed to benefit ]-,y proceeding in the City Court, after the institution of the suit in tbé District Court. Afithorities' might be adduced, cases decided on analagous principles, in the relation of courts of law and equity in England.”
    The defendant, Bowman, answered to the merits and pleaded a general denial, and averred that the plaintiff’s claim was fraudulent and collusive: that if the District Court decree a distribution of the proceeds of the barge, it must be done contradictorily with all the persons and parties interested, but which the plaintiff has failed to bring before the court.
    The cause was submitted to the court on these pleadings, and the evidence of the respective claimants. The district judge dismissed the suit as to the defendant, J. C. Terry, because he was not legally brought into court, and dissolved the sequestration, with judgment in favor of Bowman and the city marshal, on the following grounds :
    “ It was considered that the plaintiff, J. 0. Terry, proved his claim against J. C. Terry, the defendant; but has he a privilege resulting from it 1
    “I have heretofore been compelled to adopt a rule in relation to privileges on vessels and steam-boats, which navigate within the waters of the state, or to distances which do not come within the meaning of the word voyage. The rule adopted is in accordance with Louisiana Code, article 3212, that is to consider the lapse of sixty days, from the time the debt is incurred, as a' voyage, and exclude from privilege, debts of anterior standing. Either this, or there is no privilege on vessels which do not make voyages within the meaning of the term. The plaintiff’s claim is predicated on two notes, given for part of the price of the vessel. •
    “ The plaintiff’s counsel 'relies on the Louisiana Code, article 3194, which gives the general privilege on moveables, notwithstanding a credit and a note is given.
    “ This reliance, it appears to me, must fail him.
    
      ■“The privilege on vessels is given under restrictions, and in relation to a subject-matter, which prevent the application of this salvo.
    “ The privileges are restricted to the last voyage, to wages, supplies, repairs, &c. &c., previous to the departure of the ship, if she has already made a voyage. Louisiana Code, 3212. A voyage is a departure from one port, and arrival at another, or being out sixty days.
    “ It is wholly inconsistent with these provisions of law, that the creditor can retain his privilege, if he gives a credit of three months, or six months.
    “ This subsistence of the privilege, notwithstanding credit and note given, would not apply to privileges of inn-keepers on effects of a traveller. If the traveller removes his effects, (unless perhaps by fraud or stealth,) the privilege is gone.
    “The clause sustaining the privilege, notwithstanding credit and note, is not repealed in the special section giving privilege on ships and merchandise, under the restrictions there stated, and is obviously inconsistent with them, and would introduce inextricable confusion into a subject sufficiently complicated. Ships and vessels are subject to a succession of privileges from their nature, and the uses to which they are put.
    “If a seaman, &c., takes a note for his wages, at six months, his privilege is gone, and so of the others.
    “ If this reasoning be correct, the conclusion follows, that plaintiff is not entitled to any privilege ; with it the sequestration .falls, and with the sequestration the jurisdiction of the court, the defendant being an absentee.”
    
      Hennen, for the plaintiff,
    submitted the following points and authorities:
    1. The plaintiff as vendor of the barge Volunteer, has a privilege thereon, while in the hands of the vendee, though sold on a credit and a note taken for the price. Louisiana Code, 3194.
    2. The barge Volunteer never having made a voyage in the sense of the Louisiana Code, article 3212; because she only navigated lake Pontchartrain, and never went to sea, the plaintiff cannot be said to be without privilege, in consequence of more than sixty days having elapsed from the ráme Save cl'edit for the purchase money.
    3. 'At all events, the creditors on this barge should be paid pro rata. Louisiana Code, 3205.
    4. The general privilege of the vendor cannot be destroyed by any legislative construction of the article 3205 of the Louisiana Code, such as that made by the judge of the District Court.
    5. The yendor’s privilege on the vessel has always been recognized. 1 Valin, 367-8, liv: 1, tit. 14, art. 17.
    
      Buchanan, for the defendant, Bowman.
    1. The exceptions filed by William Bowman were improperly overruled: they are valid in law, and should be maintained.
    2. That the District Court is without jurisdiction of the distribution of funds in the hands of the city marshal in virtue of judgments, executions or seizures from the City Courts ; and cannot obstruct or detain said funds from the .seizing or judgment creditors in the City Court, by writs of injunction, sequestration or the like.
    3. That judgment creditors, with privilege decreed and a seizure levied, in the City Court, upon the proceeds of a ■vessel in the city marshal’s hands, cannot be compelled to litigate their claims over again in the District Court, contradictorily with creditors who have sued out sequestrations in the District Court, of such proceeds in the marshal’s hands.
    4. That the plaintiff has no privilege as claimed for the note of one hundred dollars, annexed to his petition, said note having been endorsed to him by the payee and vendor without subrogation.
    5. That, as regards the second note, of four hundred dollars, annexed to the petition, the plaintiff and appellant, so far from having a right to a preference over the appellee, Bowman, upon the proceeds of the barge Volunteer, is, on the contrary, liable to him and the other creditors, as part owner of the boat; the said note being dated November 17, while many items of Bowman’s bill are of prior date.
    A sequestration of the funds of the defendant in the marshal’s hands, does not have the effect of an attachment to bring the party into court by his property. -Ifthe defendant is absent in such case, and there is no 
      curator ad ntem or ad hoc appointed to represent him, but cftatiojTon6 the ed°t™defend the suit, it -will be uST aS °
    
      6. That the appellant has lost his privilege of vendor, if ever he had any, the barge Volunteer having made many voyages since the sale.
    7. The judgment in favor of the defendant has not been appealed from. This appeal, being against parties whose liability is only consequential upon that of defendant, must, therefore, fall.
   Mathews, J.,

delivered the opinion of the court.

In this case, the plaintiff claims a privilege as vendor of a boat which was used on the lake Pontchartrain, in trade between New-Orleans and various places situated on the other side of the lake. The judgment of the court below was against his claim, from which he appealed.

It apears that the price of the boat was the subject matter of dispute, the thing itself having been sold by the marshal of the City Court, to satisfy several judgments which had been obtained by persons who navigated the vessel. Whilst the price was still in the hands of that officer, a person named Bowman applied to that court for an order of sequestration of it, and claimed the sum of two hundred and ninety-six dollars and thirteen cents, as a privileged creditor, for supplies of provisions and other articles furnished to the boat, and sums to which he had acquired a right by purchase from other privileged creditors. He obtained the provisional order of sequestration, &c. While matters, were in this situation, the plaintiff made the claim as above stated, amounting to five hundred dollars, a sum above the jurisdiction of the City Court; and made parties to this suit, or attempted to make them, his vendee and Bowman, who had obtained the order of sequestration in the court of limited jurisdiction. No service of citation was made on the vendee, who is stated to have been absent from the state, nor was a curator ad litem or ad hoc regularly appointed for him. The court below dismissed the suit as to this party, and we think properly. The order of sequestration which the plaintiff had obtained in the District Court being a mere cautionary measure, could n0£ the effect of an attachment,' so as to bring the cause before the court, as between this defendant and the plaintiff, in such manner as to give jurisdiction; nor could the service of citation made on the attorney at law, appointed to defend him, have this effect. The case then rested on 7 the different claims of privilege set up by the remaining parties. A plea to the jurisdiction of the District Court was hleh 011 Part the defendant, based on several grounds, one of which was that their proceeding interfered illegally with the separate and exclusive judicial functions of the City Court.

Where the vented bySPthe SainT from going before ' a jurisdiction, to gate Ms rank and privilege with anothor creditor, who was seeking a,*lprmfege'Vlfí gainst the common debtor, m said court: Held, pe^Hs^dversa-ry to come into a higher court, to litigate their claims.

The judge a quo, in his opinion by which he retained cognizance of the case, investigated thoroughly these 8TOUnch, and we are of opinion arrived at a correct con-elusion. The plaintiff could not go into the court of limited jurisdiction, and it would have amounted, to a denial of justice> if he were not permitted to bring his adversary into the higher court, to litigate on the subject of their privileges, ... , , r , notwithstanding the judgment rendered m this matter m the inferior tribunal. Thé judgment by which the defendant was condemned to pay a certain sum, would remain ... , . ,. untouched, whilst its accessory, the privilege allowed, remained a proper subject of litigation before the District Court: otherwise, our jurisprudence would present the f * r absurdity of a wrong without remedy, or a denial of justice jn a matter clearly cognizable before our courts of judicature. The reasoning and conclusions of the court below, have relieved us from the trouble of examining the difficult and too often perplexed question relating to a conflict of jurisdictions, as we are satisfied with both. But the question of privileges, perhaps not less vexatious and difficult of solution, in spite of the attempt of the compilers of our Code to render this subject plain and simple, must be solved. There are so mauy privileges allowed on the property of debtors, and they are so various in their origin and their classifications so multifarious, that it is often difficult to settle their rank. The counsel for the plaintiff in the present case seems to rely principally on the articles of the Louisiana Code which treat of privileges on ships and merchandise. The interpretation of these articles as made by the inferior court, denies to his client any privilege ; and the record does not furnish facts by which the conclusion of that court on this head is shown to be erroneous. The boat about which the present dispute is maintained, is moveable property, and if the plaintiff has any privilege on its price, it must result from the provisions of the Code, wherein the privilege of the vendor of such property is established and defined.

The vendor of a vessel or other moveable pro-perfy_ not paid to^privilege on soícTby a forced sale, in a vendeePfor the ^e^a^take^a note and allowed privilege is of inferior rank to that of a oredi-for who has for-mshed supplies to the vessel,

We are of opinion, that the plaintiff in the present instance is entitled to the privilege of a vendor, as secured by the article 3194 of the Louisiana Code; but that it is inferior in rank to that claimed by the defendant.

It is, therefore, ordered, adjudged and decreed, that the . - . ' ° . . judgment of the District Court m relation to this part. of the cause, be avoided, reversed . and annulled ; and it is further ordered, adjudged and decreed, that the marshal of the City Court pay over to the plaintiff and appellant the amount that remains in his hands of the price of the boat in question, after payment of l'aw charges and paying and satisfying the claim of the defendant: the costs of this suit in both courts to be first paid out of the funds in the hands of the marshal. This judgment not to prejudice the claims of the judgment creditors, under whose judgments the boat was seized and sold. They must be allowed to claim from the marshal the several sums due to them according to the rank of their privileges, compared with those of the vendor and Bowman, and other creditors.  