dissenting. The plaintiff brought this action to recover the sum of $87 16, alleged to be for supplies furnished the steamer Fashion, and *50for which he also claimed a privilege on her. She was provisionally seized, and, on the 18th of February, 1858, released on the defendants’ bond. On the 10th of March, 1853, judgment was rendered in favor of the plaintiff for the amount of his claim, with five per cent, interest thereon, from the 17th of February, 1853, until paid, and costs, with privilege on the property provisionally seized. The steamer was seized and sold under an execution issued on this judgment. Several of the creditors filed petitions of third opposition in the suit, claiming privileges on the proceeds of the sale.
The plaintiff took a rule on all the parties, or third opponents, to show cause why his judgment should not bo satisfied out of the proceeds of the sale of the boat in preference to their claims. The District Court rendered judgment thereon, classing the plaintiff’s claim in rank “ next above to the ordinary creditors, by virtue of his seizure or execution.” From this judgment the plaintiff has appealed.
It is undeniable that plaintiff’s privilege for supplies, under Article 3204 of the Civil Code, existed at the time the steamer was provisionally seized and bonded. Was it extinguished previous to the seizure and sale under the plaintiff’s execution? In deciding this question in the affirmative, the Judge a quo says, “ The right of provisional seizure and sequestration, is given to a certain class of creditors; but this right is subject to the condition that the seizure may he set aside upon defendants’ giving bond. The right to seize is undisputed, so is the right to bond. The privilege is undisputed and exists for sixty days, whether the boat is seized or not. If seized within the time, then prescription ceased to run so long as the boat was in possession of the Sheriff; but the right of bonding being an incident'to the right of seizing, the moment the former right is enforced, the boat must be considered as not seized at all, and the seizing creditor must looh to his bond which represents the boat, in the same manner as an attaching creditor must look to the bond which releases the property attached. But while the boat is in the actual custody of the Sheriff, no one will furnish supplies, and no one can he injured by the fact of seizure ; the time between the bonding and the trial, and final judgment, may bo several months, and during this period the boat is running; but if she runs more than sixty days, the privilege is lost. The Code makes no distinction whether the boat is running as a bonded boat or not. The extreme time of the duration of the privilege is sixty days, and prescription will only cease to run from the time the boat is actually in the custody of the Sheriff.” It appears to me the Judge a quo erred. He has, in my opinion, confounded the right with the remedy. The privilege given to the furnisher of supplies, is a right created by law existing independently of the remedy. It is clear to my mind that the creditor is not bound in the enforcement of that right, to resort to the conservatory act of provisional seizure, which can only be considered as remedial. If the creditor does not think proper to resort to the provisional seizure, the question then recurs, is the prescription of the right interrupted by the institution of a suit ? The Code declares, that prescription is interrupted when the possessor has been cited to appear before a court of justice on account of the property or possession. Art. 8484. The same rule applies to the prescription liberandi causa. Ibid, 351fi, 8517. 12 L. R. 530. This rule, which is general in its application, certainly embraces the present case; otherwise, what would be the result ? In almost every case, whore the property was not provisionally seized, prescription would be acquired before the termination of the *51litigation or judgment obtained by the creditor. If the creditor has the right to enforce his privilege created by law on the thing- without resorting to the harsh remedy by provisional seizure, which can hardly be gainsayed, it is difficult to perceive how his right or privilege can possibly be affected by a remedy which he is entitled to merely as an auxiliary. In support of the principle enounced by him, the Judge a quo adverts to cases of attachment when the property attached has been released upen the defendants’ bond. The distinction between cases of attachment and provisional seizure or sequestration is, in my opinion, obvious; in neither of these is there any privilege created by virtue of the seizure, the writ being reverted to, merely for the purpose of securing a right or privilege already existing upon the thing; and in that, the privilege springs only from the seizure under the writ of attachment. Hence, it follows as a necessary consequence, that the privilege thus created must terminate with the release of the property on the defendant’s bond. It seems to me a different construction of the law would have the effect of destroying the creditor’s right or privilege, given to him by law, on the thing itself, by substituting in lieu of such privilege, a bond which might ultimately turn out to be entirely worthless, or, at all events, compelling him to bring another suit to enforce his right.
It is said that the rights of third persons acquired after the expiration of the sixty days, cannot be affected, whether the boat is running as a bonded boat or not; and that to preserve the privilege after the sixty days, the boat must be seized and held in the possession of the Sheriff. It seems to me this proposition is untenable. It has been held in actions of revendication, that the defendant cannot convey the property in dispute, or create any incumbrance upon it, to the detriment of the plaintiff, during the pendency of the suit, which is considered as a notice to the whole world.
I am therefore of opinion, that the plaintiff is entitled to a judgment for the whole amount of his claim, to be paid by preference out of the proceeds of the sale of the steamer Fashion.