The Sun.
London, England, 1846-03-26 00:00:00

LAW INTELLIGENCE.
ADMIRALTY COUR7', March 25.
THE SARACEN.

Dr. LUSHINGTON gave judgment in this case. It iras.3
claim by the assignees of the bulk of the cargo of the shiP
Diligent, to share rateably in the proceeds of the sale of the
Severn, which vessel baying caused damage to the other,
her owners had been held liable.
The Court, assisted by the Trinity Masters, had, in a suit
by the owners of the Diligent and of part of her cargo, Pre-
nounced against the ship, and had condemned her owners is
the costs. On the very day of alit decision and decree, an
appearance had been given fur the owners of the remaining,
bulk of the cargo, who claimed to share in the proceeds et
the sale of the ship—proceeds insufficient to meet the de'
mands of the first claimants; and the question uow way'
whether, according to the law and practice of the Court,
a party who had obtained a decree was bound to liquidate
the demands of another party, whose claim was of the
sama nature as his own, not being a party to that decree+
and commencing procaedinga after that decree he 4
been issued. With reference to the analogy of other Courts,
this claim was not dissimilar to the claims of creditors,
against an executor, and the rule of law in that case, as I'Llu
down by Mr. Williams, in his book on Executors, second edi-
tion, was that the most active were entitled to the first consi-
deration cf the Court, and those who first applied and firs"
obtained judgment, were entitled to the liquidation of their
claim before the liquidation of subsequent claimants. If that
case were analogous to the present, the owners of the bulk
the cargo must fail in their prayer; but was there any di (
es
between the two cases It bad been said that in thse
previons decree of the Court, and on the security given 1):,
the previous claimants, a right was reserved to subsequen`
parties having a similar claim to come in and receive their
share. The words used might:extend to liens entitled 10
priority, but certainly not that parties who bad originallP
made their claim and recovered their money should bring it
back; and whether the parties had actually received tit°
money or not, could not make any difference. There was°
ground for this claim within the four corners of that inttru-
trent. The Court might perhaps call back the money, but it
could not redistribute it. Equity could not compel thi,
Court to do that, which in an analogous case a court :
equity would not do itself, and a court of equity would I,l°
grant a similar claim in the case of creditors, to which silo"
sion had already been made. Besides, this Court was rather
a court of law than of equity. But what bad been the pfaci
tice of the Court There seemed to have been a sort s e,e
understanding that such a claim would he admitted
the court; but absolute proof of the practice was neeeb;
sary, a mere vague general understanding could vv.;
be relied on, and of the practice itself there was e"
proof at all. But reference bad been made to the 53d Georg
111., c. 159. By the 7th section, power was given to ably
owners to file a bill in a court of equity, to compel part'.
having similar claims to come in, and share a rateable dist°.
bution ; but this power was given for the benefit of Ail;
owners, not for the benefit of co-claimants. ProbablY.t.so
Court might bane exercised the equitable jurisdiction go-,
by the 15th section previous to the decree; but as the pots
s%
given by the Act was for the benefit and protection of 0,
shipowners, the Court could not use It against them. The 9,
section, too, saved the right to bring all actions in courts;
competent jurisdiction, unless a bill of equity bad be!:
filed, and here no bill had been filed; and so the part'',
who had arrested the ship stood in exactly the sar,;`:
position as before the statute. Why should he who was d"ti;
gent be compelled to surrender the fruits of his diligence
him who was less active? The decree of the Court gavel,o
new title, superior to that of the claimants previously te.„
issue. But it was said the present was a foreign cesse'.:
this, however, made no shade of distinction. There was nee
ther principle, nor analogy, nor practice, which compelled!
Court to allow a party, who only appeared on the very da,°,
a decree to a previous claimant, to share a rateable distti„ ni
tion. But there had been another ground asserted on belie,,
of the claim—an agreement between the parties. The Cour,:
however, doubts(' its jurisdiction to regard or notice fti,
agreement between proctors not appearing in acts of Ce`ty
Such private agreements were questions for a court of equilb,
—not capable of being adequately decided elsewhere. Scit. is
Court hesitated to enter at all into any such question ; bn
of
the act of petition there was in this case a distinct dello
any agreement—a denial supported by, and contradicted,
no affidavit. To the statements on either side the Cour,tito
puted no intentional error; but it was no part of its dips
decide upon this agreement. If it were proved, it bal rC
l
authority to act upon it ; and it certainly offered no it!cl
it
ment to the Court to alter its former decree, and to a'tesos
in favour of parties who had awaited the previous decl's:ol
and had taken no chance of incurring costs in the orii!srs
question. The Court, therefore, resisted the prayer to set,
in distribution, but, under the circumstances, not with c°
THE CONSTANTIA. • tili3
Dr. LUSHINGTON also pronounced, his judgment lu.lo

case. He said that subsequently to the preparation
decision he had received a petition from the consigaehe'eo
certain silver, which for the benefit of the vessel had `/$
sold at Bahia. It had struck him that that was toer„eiWa
question of average, but as a distinct prayer had been ';,ito
with regard to it, he would reserve that poirit, but procee
pronounce his decision on the question which remainetim,
consideration in this case, viz. ; whether the freight
was liable for the wages, 'pilotage, towage, and similar tilt
penses incurred by this ship. The parties interested is
present question were the consignees of the cargo, and 40
holders of a bond, dated Apt il, 1845. That questionp
whether the freight and the ship, or freight alone, was 1,1
for the expenses above-mentioned. This Peruvian 1„-,p4
on a voyage from Lima to London, laden with gati;tisl
silver, had met with bad weather, and had put int°'a
The master had sold the silver for the B"%defo:
the vessel, and subject to any future coosi4s,
tion. The question relating to that silver 5e0,0
to be a question of average, not to be dealt 01
in that Court. 'The produce of the silver, however, wnds it
sufficient to meet the requirements of the ship, an, gl;
master granted two bottomry bonds, both dated Fe"-
one upon the ship, and the other upon the cargo ala,,;.,ica*
vessel had then put to sea, and had met with a of' itriP
The master had then given another bond upon tPe:Ol
alone, and that bond was the one whose holders wers:pr'
before the Court. This state of things was very Pe'bo,i
The Court scarcely remembered any similar case of a, off
upon the cargo alone. The general principle of botteoelf
was that, as the benefit was given to the ship, the ,tight'
of the ship, in the first instance, and then of the I,r„
should be liable for money lent upon bottomry. god
Gratitudine, decided by Lord Stowell, the ship, freigilt!„t
cargo, were all wade liable on the face of the bond,
was admitted that the ship and freight were first liable' ca
the Prince Regent, also, Lord Stowell had more distillo#
decided that the ship and freight must first be pe
hausted before the cargo could be made available. e
freight was to be called in, though not mo3o°lloll
the bond, and be applied in satisfaction of the .. I
and this whether the bondholder required it or ne'dtb
was a right belonging to the owners of the cargo; aDbopd
principles thus laid down did not apply merely to!
upon a ship. If the bond were upon the freight, tn_e,lo,
would, under the same principle, be liable before th,;it tit
could be applied to the liquidation of the bond. foil,
circumstances in this case were particular. Here btiewiro
a bond upon the cargo, the validity of which was oce
The Court had therefore been compelled to prone to
tbt
favour of it, but that decision was of course subject g
tb
general principles of law as to the prior liability bor.
owners of the ship and freight. There were here three !DO
t
the two first upon one date (Feb. 27), one upon !lie aft
and the other upon the cargo—the third (dated AP ri
? )
10
the ship alone. How were these bonds to be paid
last bond was to be paid first, and as that bO7O,
upon the ship alone, the ship, in the first insinr, tots
liable. If any surplus were left, that surplus mast go al
`
satisfaction of two prior bonds. They were of , tagl(o/
date, and not entitled to priority. They must dor 11,
together, These two bonds were upon the ship an fro,,r
the freight not having been hypothecated at al, 1' die no
satisfaction of these two bonds, first must be aelie"„,,rti'llte
plus of the proceeds of the ship—what then ?
the proper construction, the bond upon the cargo _a ern.
read as if it were n bond upon the ship, freight, iftbei,
If this were so, the proceeds of the freight must n?"•,,,,e'd
plied, and lastly, the cargo. But now came the If4e,,ito
question—front what funds were the wages, the t" Dr. ail
the pilotage to be paid ? It was said out of the frild
Court could not understand why. The ship reel freigPeti
benefit from such service, as did the owners of tl,l%tie°llo
and there was no reason why the holders of the "Ti el „ol
the ship alone should meet with any great favour. „tit Po'
taken the liability of the ship alone, when they in,Pr3esed
demanded the liability of the ship and freight. ,a (17JVI
penses, therefore, must be paid out of the ship a-poui
ettaaLy, and the motion that the freight alone
liable for them rejected.

TO TM

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