Eymar v. Lawrence

8 La. 38 | La. | 1835

Bullard, J.,

delivered the opinion of the court..

In this case the plaintiff represents that the schooner Serafina and Thomas Lawrence the owner, are justly indebted to him in the sum of six hundred and ninety-one dollars five’ cents; for wages as captain of said schooner, and for advances made, and expenses paid on her account; that the Serafina was wrecked and lost in August, 1831, and was'abandoned to> the underwriters, who- paid the amount of their insurance' upon her to Thayer, Hurd & Co., as consignees of the’ schooner and agents of the- owner, Thomas Lawrence of Matanzas, and that they have in their hands a large part of the same; so recovered from the insurance company. The plaintiff, averring that he has a privilege on the funds, as he would have on the vessel itself, if she had not been lost, prays for a' provisional seizure, and that Lawrence the alleged owner be cited by his’ a-gents, Thayer, Hurd & Co., and that the latter may also be made parties;, and he finally prays judgment against the owner, and also- against the consignees for the amount of his claim, and that he may be' paid by privilege out of the proceeds of the vessel, in the hands of the said Thayer, Hurd & Co.

Thayer, Hurd & Co. in their answers, deny that they are or ever have been the agents of Thomas Lawrence, or that he was the. owner. They admit that as consignees of the Serafina, they had received from the Insurance Company the amount of the policy, and that they have yet in their hands the sum of one hundred and fifty dollars, Over and above the amount of advances made by them as consignees,, and which they have a right to retain.

The creditor who proceeds against the property of his debt- or by provisional seizure and sequestration, acquires no privilege thereon, until he has obtained a judgment, and execution issues on it. The privilege of the captain of a vessel, for his services, advances made and expenses paidon her last voyage, does not extend to the insurance money received as indemnity on her bottom, paid by the underwriters, when she is lost or destroyed by the perils of the sea. In voluntary sales of a ship or vessel, the creditor can pursue it, and exercise his privilege on it in the hands of the vendee j sales the privithf6 jm’ce^and the purchaser takes free .of incumbrance? shfp i^iost/or perishes by the the'privilege is 10 When are lost at sea, red',"they are not represented by the sum or insurance money received from the underwriters, And the vendor’s privilege does not extend thereto.

Judgment having been rendered in favor of the plaintiff, for the amount of his claim against Lawrence, and against Thayer, Hurd & Co., as consignees, the latter appealed.

The right of the plaintiff to recover of the appellants, must depend upon the question whether he had by law, or has acquired by the proceedings in this case, any privilege or lien on the proceeds of the Serafina, in their hands. The plaintiff proceeded by provisional seizure, and the 724th article of the Code of Practice declares that provisional seizures and sequestration give no privilege to those who have made them, until they have obtained a-judgment and order of execution on the property sequestered or provisionally seized. It is, therefore, clear that unless the plaintiff had a legal privilege on the funds, he acquired none by the proceeding in this case. It only remains, therefore, to inquire whether he had such privilege previously and resulting from the nature of his debt.

Among the privileges enumerated in the Civil Code, we find those of the captain and crew of a vessel, for wages on the last voyage, of freighters, material men and others, under-various modifications and restrictions, article 3204. These privileges are declared to exist on the vessel or its price, when it has been sold. But the code does not contemplate a case like the present, when the vessel had been destroyed and lost by perils of the sea, and the sum insured upon her bottom paid by the underwriters. The code distinguishes between voluntary and forced sales of ships, in reference to privileges, In cases of voluntary sales, the ship itself may be pursued in . ■* * l the hands of the vendee; in cases of forced sale, the right of purchaser becomes irrevocable; he owes only the price, an¿ over it the creditors exercise their right of privilege, article 3207. In this last case the price, still in the hands ^le purchaser or the officer making the sale, represents the thing itself. But the indemnity received from the insurers for the loss of the ship, either by the owner or-his agent, ■appears to us widely different. In the case of Thayer et al. vs. Goodale, 4 Louisiana Reports, 221, this court held, that when goods are insured and lost at sea, they are not represented by the sum insured, and that the vendor’s privilege does not extend thereto. The two cases are strongly analagous; both are cases of alleged privilege, and in both cases the thing itself, on which the privilege attached, had perished, and the stipulated indemnity paid. Upon the principles and authorities established and relied on in that case, we think the plaintiff in this has no privilege on the funds in the hands of the appellants.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be reversed and annulled, the provisional seizure set aside, and judgment entered in favor of the defendants, Thayer, Hurd & Co., as in case of a non-suit, with costs in both cases.