#### James C. Taber *versus*William C. Nye *et al*

*A*ship having sailed on a whaling voyage *11*from New Bedford and back to New Bedford/7 on her return arrived at a bank without the harbour of New Bedford, but within the limits of the town and port of New Bedford, where she grounded and where she remained, without casting anchor or furling her sails, for some hours, when she floated and was brought into the harbour. It was *held,*that the voyage was not completed until the ship was brought into the harbour, and con eequently that the earnings of a seaman on board were contingent, and therefore not attachable by the trustee process, while she remained without the harbour.

Assumpsit against the owners of the ship Eagle, for the earnings of the plaintiff, a mariner on board of that ship, on a whaling voyage “ from New Bedford and back to New Bed-ford. The action was tried before *Morton*J.

It appeared that on April *22,*1829, the defendants were summoned as the trustees of the plaintiff, in a trustee process commenced by one Allen, a *bond fide*creditor of the plaintiff, and who afterwards recovered a judgment against the plaintiff for the amount of his debt. On the same day, but subsequently to the service of the trustee process, the plaintiff, being indebted to one Haskell, for whose use the present action was brought, in a sum larger than the amount due from the defendants, assigned to Haskell all that might be due to the plaintiff on account of his voyage, and notice of the assignment was given to the defendants before they had made any payment of the amount due to the plaintiff. It further appeared, that in the afternoon of the same 22d of April, the ship arrived at a place called the eleven feet bank, which is without the harbour of New Bedford, but within the limits of the town and port of New Bedford, where she grounded, and where she remained without casting anchor or furling her sails, until 9 o’clock that evening. She then floated and was brought into the harbour, and anchored at half past 9 o’clock. The captain left the ship at about 5 o’clock in the afternoon of the 22d, and the plaintiff, being unwell, came on shore with him, by his permission, and did not again return to the ship. The captain tes tilled, that he' did not suppose, when the plaintiff came on shore, that his health would permit him to return to the ship, but that if he had recovered his health and the ship had re*109mained in her then situation, he should have expected him to return if required, and that he had not discharged him from his obligations as a mariner for the voyage. Much evidence was introduced as to the situation of the eleven feet bank, and as to the customs and usages of the port in reference to what is considered the termination of a voyage from New Bedford and back to New Bedford.

The jury were instructed, among other things, that if the voyage which the plaintiff had contracted to perform, was not completed at the time of the service of the trustee pro cess, and the plaintiff had not been released from his obligation to fulfil that contract, nothing was due to him at that time from the defendants, and the process was therefore ineffectual as against them; and in such case the verdict should be for the plaintiff.

The jury found for the plaintiff; and in answer to an inquiry made by the judge, they said they found, that at the time of the service of the writ, the voyage was not completed, and that the plaintiff was not discharged from the obligation of his contract with the defendants.

*Oct.*26M

To the foregoing instruction the defendants excepted.

*Coffin*for the defendants.

*Warren*and *Ezra*Bassett,

for the plaintiff, cited *Davis*v. Ham, 3 Mass. R. 33; *Bill*v. *Mason,*6 Mass. R. 315, *Gray*v. *Gardner,*17 Mass. R. 188.

*Oct. 28th.*

Putnam J.

delivered the opinion of the Court. This is a contest between two *bona fide*creditors of the nominal plaintiff, one of them claiming the wages in virtue of an assignment from the nominal plaintiff, the other claiming the same in virtue of an attachment thereof, upon the trustee process, in the hands of the defendants. If the foreign attachment did not take effect, the assignment will.

Whether the wages were due, depended upon the fact of the voyage having been performed. But the jury have negatived that fact. They have found that the ship had not arrived at New Bedford within the meaning of the shipping paper ; which was for a whaling voyage from New Bedford and back to New Bedford. And we think it would have been a very extraordinary verdict if it had found otherwise. It is *110perfectly clear, that by the returning to New Bedford, the parties meant to her destined place of mooring there, and not merely to the waters or territory within the limits of the town or port of New Bedford. For it generally happens, that the most dangerous part of the voyage is in the navigation within the port. It is there that a pilot is required. But this ship took the ground while she was proceeding to her place of mooring. If she had been burnt or lost there, it could not with any reason be maintained that the owners were indebted, or that the voyage was performed.

At the time when the attachment was made upon the trustee process, the claim of the plaintiff was contingent and not due, and therefore it could not be taken by that process. The attachment failing to take effect, the subsequent assignment is to operate. We are all clearly of opinion that the judgment should be for the plaintiff, according to the verdict.1

1

 See *Tucker*v. *Clisby,*ante, 22; *Guild*v. Holbrook, 11 Pick. 101; *Meacham*v. McCorbitt, 2 Metc. 352; *Wheeler*v. *Bowen,*20 Pick. 563; *Holbrook*v. *Warter,*19 Pick. 354; *Stone*v. *Hodges,*14 Pick. 81.