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

(LY.FT SPVA-KING.)

LAW L4TELLI6ENCE.
ADMIRALTY COURT, March 25.
TEE SARACEN.
Dr. LUSHINGTO.N gave judgment in this case. It was,
claim by the assignees of the bulk of the cargo of the shk,
Diligent, to share rateably in the proceeds of the sale of to
Severn, which vessel having caused damage to the other'
her owners had been held liable. it
The Court, assisted by the Trinity Masters, had, ins °
by the owners of the Diligent and of part of her cargo, Prrit
nounced against the ship, and had condemned her owners
the costs. On the very day of that decision and decieees;
appearance had been given fee the owners of the remahu'l
bulk ot the cargo, who claimed to share in the poceeds
the sale of the ship—proceeds insufficient to meet the d:
mands of the first claimants; and the question uow Ws",
whether, according to the law and practice of the Court
„
a party who had obtained a eecree was bound to liquidsr
the demands of another party, whose claim was of tb
same nature as his own, net being a party to that deCl
and commencing proceedings after that decree ha,
been issued. With reference to the analogy of other COFlh
',.,
this claim was not dissimilar to the claims of credits.`ci
against an executor, and the rule of law in that case, as
doe n by Mr. Williams, in his book on Executors, second e
tion, was that the most active were entitled to the first cO,
11:g
deration of the Court, and those who first applied and us,
obtain, d judgment, were entitled to the liquidation of that
claim before the liquidation of subsequent claimants. If,t al
ease were analogous to the present, the owners of the binkir
the cargo must fail in their prayer; but was there any
tinctiun between the two cases ? It had been said that 111
bl
previous decree-of the Court, and on the security given ot
the previous claimants, a right was reserved to subsediteit
parties having a similar claim to come in and receive I.° to
share. The words used might extend to liens entitled lf
priority, but certainly not that parties who had origius'ii
made their claim and recovered their money should brink,
back; and whether the parties* had actually received turic
money or not, could not make any difference. There was
or
ground for this claim within the four corners of that Milt
trent. The Court might perhaps call back the money, h9s,ii
could not redistribute it. Equity could not compel 14-ot
Court to do that which in an analogous case a eoullot
equity would not do itself, and a court of equity would
grant a similar claim in the case of creditors, to which s',;o
sion had already been made. Besides, this Court was rst:o.
a court of law than of equity. But what had been theP•of
tice of the Court There seemed to have been a *dirt by
understanding that such a claim would be admitteu,oe
the court; but absolute proof of the practice was pee
fiery, a mere vague general understanding could "po
be relied on, and of the practice itself there asso
proof at all. ,But reference had been made to the ad
111., c. 159. By the 7th section, power was given to sno
owners to file a bill in a court of equity, to compel,rT„j.
having similar claims to come in, and share a rateable totx
bution; but this power was given far the benefit of 0".
owners, not for the benefit of co-claimants. Probably 4
Court might have exercised the equitable jurisdiction glad
by the 15th section previous to the decree; but as [hello
given by the Act was for the benefit and protection
shipowners, the Court could not use it against them. Thsoti
section, too, saved the right to bring all actions in cellos
competent junsdiction, unless a bill of equity had.rted
filed, and here no bill had been filed; and so the P
who had arrested the ship stood in exactly the siiie
position as before the statute. Why should he who waste
gent be compelled to surrender the fruits of his diliges`:oo
him who was less active? The decree of the Court pit,
new title, superior to that of the claimants previously)
issue. But it was said the present was a foreign s'iloi•
this, however, made no shade of distinction. There WS!,iso
ther principle, nor analogy, nor practice, which compeitfol
Court to allow a party, who only appeared on the very nte
a decree to a previous claimant, to share a rateable disLialf
tion. But there had been another ground asserted on mod,
of the claim—au agreement between the parties. The t' of
however, doubt-el its jurisdiction to regard or noticd.,te
agreement between proctors not appeeri, gin acts of d
Such private agreements were questions for a court of dalt tie
—not capable of being aCequately decided elsewhere. s°, is
Court hesitated to enter at all into any such question; btu',
the act of petition there was in this case a distinct denis;),,
any agreement—a denial supported by, and contradicted,',
no affidavit. To the statements on either side the Court Pio
puted ne intentional error; but it was no part of its gut}
decide upon this agreement. If it were proved, it btoe
authority to act upon it; and it certainly offered no Mu' it
ment to the Court to alter its former decree, and to alto,
in favour of parties who had awaited the previous doe of
and had taken no chance of incurring costs in the orips
question. The Court, therefore, resisted the prayer to
iii dietaution, but, under the circumstances, not with O
ME CONSTANTIA. • trigDr. LusiiiNGTON also pronounced his judgment Of log
case. He said that subsequently to the preparation of bp!
of
decision he had received a petition from the consigns bee°
certain silver, which for the benefit of the vessel ha iy
sold at Bahia. It had struck him that that was tuerooo
question of average, but as a distinct prayer had been to
with regard to it, he would reserve that point, bat proTA or
,pronounce his decision on the question which reolli"-1000'
consideration in this case, viz. ; whether the freight
,„ ee'
was liable for the wages, pilotage, towage, and sirui'l.;
tbs
penses incurred by this ship. The parties interested 'A tbs
present question were the consignees of the cargo, au" 00
holders of a bond, dated Apiil, 1845. That questiliobl°
whether the freight and the ship, or freight alone, 1°1;1011
for the expenses above-mentioned. This Peruvian ' sea
on a voyage from Lima to London, laden with gultisio
silver, had met with bad weather, and had put into
_A Ot
The master had sold the silver for the g'otj
the vessel, and subject to any future elsuisisee
tion. The question relating to that silver fial,
to be a question of average, not to be dealt pr
in that Court. The produce of the silver, however, wr
sufficient to meet the requirements of the ship, !nal.;
master granted two bottomry bonds, both dated -re- 117
one upon the ship, and the other upon the cargo aleuilioite..,
vessel had then put to sea, and had inet with a s 0;
The master had then given another bond upon tb
alone, and that bond was the one 'whose holders vier-00f
before the Court. This state of things was very l'stl'
The Court scarcely remembered any similar case of !too,
upon the cargo alone. The general principle of loo`for,
was that, as the benefit was given to the ship, the fie-
of the ship, in the first instance, and then of the la 1:1
should be liable for money lent upon bottomrl. et ve
Gratitudine, decided by Lord Stowell, the ship, freigel;ilt
cargo, were all made liable on the face of the bode! I,:
was admitted that the ship and freight were first lia,flecO.
the Prince Regent, also, Lord Stowell had more at, se,
decided that the ship and freight must first d' 11,1;
limited before the cargo could be made availlthtiedl
freight was to be called in, though not mot
the hoed, and be 'applied in satisfaction of tmw
and this whether the bondholder required it or rlo t 134
was a right be'onging to the owners of the cargo; A, eds.,
principles thus laid down did not apply merely t°.lo obJ4,
upon a ship. If the bond were upon the freightq'
would, under the same principle, be liable before lot
could be applied to the liquidation of the bond. here
circumstances in this case were particular. Here t'oitt
a bond upon the cargo, the validity of which was „,,4,01
The Court had therefore been compelled to ON"' ',o ,a
favour of it, but that decision was ot course suhiec" of to
general principles of law as to the prior liabilit.v eos„,
owners of the ship and freight. There were here Web, :Or
—the two first upon one date (Feb. 27), One upon t•i),10
and the other upon the cargo—the third (dated An f'? 0
the ship alone. How were these bonds to be paid „d ,0
last bond was to be paid first, and as that h°70,0,,,
upon the ship alone, the ship, in the first jestet! to ts,
liable. If any surplus were left, that surplus must fs; 01,1
satisfaction of two prior bonds. They were of to et,
date, and not entitled to priority. They must , 00
together. These two bonds were upon the ship and To tor
the freight not having been hypothecated at &lA' the s to
satisfaction of these two bonds, first must be apehe',,,effigte
plus of the proceeds of the ship--what then Acs moat
the proper construction, the bond upon the carp cerc
read as if it were p
roceeds end upon the ship, freight, t
If this were so, the p of the freight inuet nefi,asLurpl
plied, and lastly, the cargo. But now calve the !,i',ages,4o
question—front what funds were the wages, the
the pilotage to be paid ? It was said out of the fr'!'ea 611;
Court could not understand why. The ship reeeYosiell,,,o
benefit from such service, as did the owners of .oeros shrod
and there was no reason why the holders of '.ete h°,0e1,;,.•
the ship alone should meet with any gieat f,avour. .O.et Po'
taken the liability of the ship alone, w'aen they 111,itese.,0
demanded the liability of the ship and freight. at fre,llol
penses, therefore, must be paid out of the ship s-seodi
eqaall, and the motion that the freight aloof
liable for them rejected.
BIRTILS ,
On the 21st inst., at Crammer-place, Waterloo-bridge.
Parish, of a sou. ptptl

1,00
PIED. d
.rOthnethlaetelsstihr ill,n,sat.l,lainat
itrairls,..,.e.Jil
iylLsetrleleatiorltjagseenoti'g7.o. h •
iso
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nusaFi.tlizabeth Nora, second
..."
t CSIP-10
Penelope, Oilthe
On the 21st inst., at Camberwell, Mary Ann, relict of ""
_de.
21 s t
fourth instdaughter tn
of.o i ea
thel
Thomas George ingoll•
wed' or
latehe Issitinlounst.m, i.nttSuoiu,
Eths-cisluaagreed, Gray's Inn, Thomas' $7.0. A
__,..,, TO
if
OOtin'letthe 21st inst., at Exeter, Captain Francis ?atria-.vo.
On the 22d inst., John Pres:cot, eldest son of t 1.4. 0
Clowss, of Banbury Hall, Woreestendure.
1°
On On the 22d inst., Mrs. Martha Nelson, aged 86. „ote, 1-0, ,
On the 22d inst., at Woolwich
son of the late Colonel Sir George Aosta, C. 8., ltoY&l„.9iorri,i.l'AfeC
On the 22d inst., at Whsathamstead, lierte, Mr. .10”,,n 101 l ' 0.1
On the 22d inst., Lucy, the wife of William Bac, of the se
daougnhttheer
2o3fdJoinshnt.ll,
Jouatnhe,
iElseqr.ce, , William Theodore .1, gwee o,i,
t, 1 Fleet-street.
„rare et
On the 23d inst., at Camberwell-grove, ‘iiaphia 3 .
GroenatthGeeo2r4gthe-instrseto,t,mWr.e
ontomshin,sßtetrh,eupwirif bsttreGset:g.,-e-rl'ilaCrberd 0:1::
,00,0::40.:
tono-hill.
~ 41.34114 .1
24th tit at Clayton-place, 'o,:enningto-.
~
of Samuel Williams, Esq., aged 32. - --"7111
_.....- 10A
London : Printed and Published by h' ETD° Y°..,,,,, :X, 00
,0
Strand, Printer, at The Sun Office, N 0.112, btr.. ,
of the liavoy, in the County of laiddielez' Am
.
26, 1846.

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