
    Shirley, Escott & Co. v. Owners of the Steamer Bride.
    Owners of steamboats are commercial partners. C. O. 2796.
    An attachment will not lie against the property of a partnership, where one of the partners resides in the State, and it is not shown that the partnership domicil is out of the State.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.
    
    
      L. Hunton and E. A. Bradford, for plaintiff,
    contended : The plaintiff, holding a claim against the Steamer Bride, brought suit to recover it. Lesperance, a part owner residing in the city of New Orleans, was cited in the ordinary form. HadlocJc, Driver and Blood, the other part owners, being nonresidents pf this State, were brought into court by attachment of their interest in the boat. The boat having been released on bond, the defendants then took a rule to set aside the attachment on various grounds, but particularly on the ground, that, inasmuch as Lesperance, one of the part owners, resides here, the boat being partnership property, was not subject to attachment. This last ground was sustained by the court, on the authority of the case of Munroe v. Frosh, 2 Ann. .9.62, and the plaintiff appealed.
    The principle established in the .case of Munroe v. Frosh, although reasonable and undoubtedly correct in respect to a commercial firm, having a social name and domicil, cannot, without violence to the general provisions of law, and to adjudged eases, be extended to part owners of steamboats or other vessels who possess neither a social name nor domicil.
    As the plaintiffs held a claim for which all the owners of the boat were bound in solido, they had a right to prosecute its recovery agajnst each and all of them; and, consequently, were entitled to the proper process to bring them all before the-, court. But, so far as the non-resident partners were concerned, the only process that could reach them was that of attachment. Byrne v. Hooper, 2 R. R. 229. Heffernan v. Brenham, 1st Ann. 146,
    
      Wolfe and Singleton, for defendant,
    contended : This appeal is taken from a judgment of the Fourth District Court dismissing a writ of attachment under the following circumstances: The Steamboat Bride was a packet running regularly between the ports of New Orleans and Vicksburg, carrying freight and passengers for hire, and was owned by Hezekiah Hadlock, Joseph A. Driver and William Blood, all of whom resided at the time, and still reside, in New Albany, Indiana, and by Francis Lesperance who resided at the time, and still resides, in the city of New Orleans.
    
      Lesperance, the partner who resides in N ew Orleans, owned three-eighths of the boat. The ground stated in the rule, and upon which the attachment was dissolved, is, that the process of attachment will not lie against partnership property, when one of the partners resides in New Orleans.
    The judge of the court below decided the case, and set aside the attachment upon fhe authority of the- decision in ¿he .case of Munroe v. Frosh et al., 2 Ann. 962. W.e think the judgment is fully sustained by the authority upon whi.eh the judge below has rested it. There are other obvious reasons why the attachment should be set aside. In the case of Munroe v. Frosh et al., this court held the following language : “ The remedy of attachment is a stringent one ; it has always been strictly construed, and has not been permitted, except in those cases where it is clearly and fairly applicable.” Now, here is a case, where property is owned by four commercial partners, some of whom reside in the State, and some of whom reside out of the State. This property constitutes the stock in trade, and is an essential feature in the partnership, and is strictly liable for all the partnership debts, and is of that character that no portion of it can be seized without seizing the whole.
    
      It is perfectly clear, that .the property of a resident cannot be seized by a process of attachment. The question then irresistibly forces itself on the mind ; can the attaching creditor in the exercise of his remedy of attachment, violate the rights of residents ? or, will he be permitted to trample upon the rights of residents, that he may enforce the extraordinary and harsh power of attachment against a non-resident? We do not think the present case one in which the remedy of attachment is clearly and fairly applicable.
    Suppose A. B. and C. were engaged in buying and selling cotton, and that A. and B. resided in .the State of Mississippi, and C. resides in the city of New Orleans, and that these three persons trade without assuming any common name. Now, suppose they purchase one hundred bales of cotton, and ship them to C., atNew Orleans. Query ? Would the process of attachment in a suit brought against A. B. and C. lie against this cotton ? If the decision in Munroe v. Frosh et al. be law, it certainly would not lie ? The attaching creditor would have no right, under any circumstances, to attach the property of C. But, it will be said, on the authority of Ileffernanv. Brenham, l Ann. 146, that in order to sue the owners of a steamboat, you must cite each one of the owners. We answer, so you would have to cite A. B. and C., if they did not assume a partnership name. And it will be contended again, that the case is not analagous, because the part owner of a steamboat cannot sell or part with more than his interest in the boat, while C. would have the entire control of the cotton, and might sell the whole of it. Well, how does this consideration affect the question of the right to attach? We cannot see that it can affect the question in the slightest, and amounts to a mere incident that is peculiar to the property which happens to be the object of the partnership. From considerations of public policy it has become the settled law, that a part owner of a vessel cannot sell more than his interest.
    The fact that persons choose to engage in a partnership trade without assuming a common name, does not make them the less commercial partners. The 3d section of article 2796 C. C., provides “ that those who are engaged in carrying personal property for hire in ships or other vessels, are commercial partners.” This language is broad and unrestricted. The feature of solidarity, which is the distinguishing mark of the obligations of commercial partners, is equally found running through all the operations and dealings of owners of steamboats, carrying personal property for hire. But, is the creditor remedy-less in the present case ? We think the law has given him a remedy that fully protects his rights, without infringing upon the rights of others. The bankruptcy of the partnership dissolves it. Art. —, C. C.
    The article 246 Code of Practice, gives the right of garnishment, which is a modification of the remedy of attachment. Would it not have been the proper course for the attaching creditor to have seized the interest of the non-resident partners in the hands of the resident partner, and thereby have provoked a settlement of the partnership ? It appears to us-, that this would have secured all his rights, and at the same time have enabled him to steer clear of the dilemma of seizing the property of a resident.
    It appears to us, that this case presents a conflict of interests and rights ; and the question is this : Is the resident the unfortunate man in owning partnership property with non-residents, or is the attaching creditor the Unfortunate man in having debtors so situated that he cannot exercise the remedy of attachment ? We think the court cannot hesitate, when two parties come before them under these circumstances, to' disallow the extraordinary remedy of attachment.
    The property attached in this case was bonded by F. Lesperance alone. So that we have the anomaly of a resident standing before this court, asking that his property be released from a seizure under attachment, and that the writ of attachment be set aside.
   The judgment of the court was pronounced by

Slidell, J .

The petition charges, that Lesperance, a resident of New Orleans, and Hadloclc, Driver and Blood, residents of Indiana, are liable in solido to the plaintiffs, for certain stores, &c., furnished for the Steamer Bride, owned by the defendants, and employed by them in the transportation of passengers and property for hue. Upon the usual affidavit of the indebtedness of the three last named persons, and of their residence out of the State, a writ of attachment was obtained, and the steamer was seized. She was bonded by Lesperance, he acting in the bond for himself and the other owners. Before issue joined a rule was taken by the defendants to show cause why the attachment should not be set aside. It was tried in the court below, and is presented to us upon the following agreed statement of facts :

At the date of the institution of this suit, as well as at the time the plaintiff’s claim accrued, the Steamer Bride belonged to Hezekiah Hadlock, Joseph A. Driver and William Blood, who resided, and yet reside out of the State of Louisiana, viz., in New Albany, Indiana, and to Francis Lesperance, who had for many years previous, and still resides in New Orleans. F. Lesperance owned three-eighths of the Bride. The steamer Bride was employed as a packet between the port of New Orleans and the city of Vicksburg, Mississippi, carrying personal property for hire.

The district judge, being of opinion that the case fell within the principle established in Munroe v. Frosh, 2 Ann., 962, made the rule absolute, and dismissed the attachment.

The article 2796 of the Civil Code is in these words : “Commercial partnerships are such as are formed, 1st. For the purchase of any personal properly, and the sale thereof, either in the same state or changed by manufacture. 2d. For buying or selling any personal property whatever, either as factors or brokers. 3d. For carrying personal property for hire in ships or vessels.”

It is not our intention, on the present occasion, to attempt the expression of an opinion as to all the legal consequences which may result from this naked provision of the Civil Code. The state of our legislation on the subject of shipping is quite anomalous, from the fact, that when the Civil Code was enacted it was expected that a Code of Commerce would also be enacted. The Civil Code expressly refers to the contemplated Commercial Code as the one which is to control, in cases of repugnancy, the subject of commercial partnership. Our opinion as to the effect of article 2796 must be considered as considered as confined to the case before us, leaving other points to be determined as they arise.

Under this article our courts have repeatedly held, that part owners of vessels are so far commercial partners as to be liable to the creditors of the vessel in solido. The doctrine to this extent may be considered as conclusively settled. If the part owners are to be held commercial partners, for the purpose of their liability to creditors of the vessel, it is fair to give them as against those creditors the benefit of that character. The burden and the advantage should go together, Qui sentit onus sentiré debet et commodum.

When attacked, therefore, as commercial partners, and charged by reason of that character in solido, it is just that they should be permitted to say, as against you, our vessel is partnership property.. Has a creditor, then, who charges his debtors as commercial partners, a right to the conservative process of attachment against the partnership property found in this State, when one of the commercial partners is a resident of this State, and it does not appear that the partnership domicil is out of the State ?

The remedy by attachment is a harsh one; it is in derogation of common right; it is, therefore, strictly construed. What we said in Frosh v. Muller, is deducible from the uniform jurisprudence on this subject, namely, that attachment must not be permitted, except in those cases where it is clearly applicable. Now, the object of our attachment law is to enable suitors in our courts to collect their debts, from non-residents. The property of a resident debtor cannot be taken on such process; his creditor must abide the ordinary course of judgment and execution. But, if the creditor is permitted to seize, under attachment, the property of a partnership in which a resident citizen is a partner, is not the resident citizen a sufferer 1 Is not the right of possession which belongs to him disturbed, and the prosecution of his partnership business defeated ? Undoubtedly they are ; aad, consequently, his privileges of exemption from attachment is substantially violated.

It is said, the case of Stunroe v. Frosh, is not identical with this. It is not. But the spirit of that decision reaches this case, and authorises us to say, that under a strict construction of the attachment law, a commercial partner resident here ought not to be disturbed by an attachment of the partnership property, at the suit of a creditor of the partnership.

Judgment affirmed, with costs.  