rHE MARINE RECORD. MARINE LAW. IIDKL—PIIIOHITY OF CLAIM DKNIKD. William H. Woll, et al.) NoUl|_ D|gt 0|||o ve: . f Admiralty, schooner Arcturiis. ) II. D. Gonlder pioelor for Hbclliint., , Mix, Noblo & White, proctors for Dffinfoid & Alverson. Wolkor, district itidgc. . In tills cnsc mi Iinpoitant question Ib for ■the first time presented to tills court In iiform requiring Its eincfiil oonsldernllou und de¬ termination. For several Jears p«Bt It hns lfteri the practice, to award to t)ie party,(list procuring the seizure of n vessel by virtue ol proceedings In admiralty, a precedence over the holders of other claims of the same (ur lower) rank, In the distribution of the pro¬ ceeds of the sale of the property seize 1, where the fund In the registry proved iiifuf- flclent for the satisfaction ol all; the com' mlsslolter to whom references have been made- for the purposes ol distribution having so reported on the authority of Lenalicts ad- im>alty,\> 3J2 and such other as have been In itccoul vith Judge Benedict's views on this question. To these reports, so In har many wirh the opinions of this able juiist, no formal exception has heretolore been ta¬ ken, and until now tho Judicial determina¬ tion of I he question by the court bus nut been Invoked vl'ho language of Judge Benedict on this subject's as lullows " Hie order of distribu¬ tion, or marshalling of the proceeds (of the pale of a vessel) Is fettled by the court Ac¬ cording to the legal pilorlty. * * In claims of tho siimc lank the bile first com¬ menting kia proceedings is piefened In the distribution. The purl) first selling holds the property against all other cjaiius ol no higher jjharacler In support of the text so quoted, reference Is ritnde to the fallowing authorities: Blaine vb. the Carter, 4th Crunch, 328; the Paragon Ware, 322; the Phcebe, Id. 350; the Globe, 1 (Bhouldbe2), BlatchlordC. C. R. 427. the Adele, 1 Benedict, 308, Bojd's Proc. 45. From an examination ol all the above ex¬ cept the last named, whloli Is not at hand It appears that the case of the Globu was de¬ cided by Justice Nelson, ol the Supremo Court, Holding the Circuit Court In 1852. 'the language used by the learned judge, in tenua, would fully support Judge Benedict's dictum, viz "It has been argued that this marltlino lien against u vessel, for supplies and materials furulshcJ to her master at a foreign port, Is an abiding Hen, and adheres to the vessel and, may be enfoiced over all claims of a like nature subsequently accruing In the course of lier emplo> iiiunl. I cannot assent to this position. On the contrurv, I am satisfied that the 11 lie rule upon thieMiiu- {ictis that In inspect lo inailtime liens of this desulpliou, the part) flisl instituting legal proceedings foi the jiiuposeof enloic- ing his claim against the viWl, Is i milled to satisfaction out of the piocceds of hei sale " The question to which this language uas applied was whether,as against a purchaser -ol a vessel at judh (al sale, hi vlrluu of pio- ctudtngs'iiireai under the vvalel cniltjnn of Ohio, one who had pievlnusl) lurinVlud supplies to the vessel lua Imcigii port, could enforce a lieu upon hei, and was not a ques¬ tion iib to who had. a pi tor right to the sails- faction of his claim out of a fund In the reg¬ istry of the court, produced by her judicial sale. Ami the learned judge held that the 'sale, having been In a pioceedlug in in, "must be held conclusive upon Hie tinusfui and disposition of the vcs.-il In question, In whatever placo she may be found, and upon the title to her, by wbomsoevei it may be qiAmlimtod, and whethei Involved directly or colliitciall}." In other \vords,-therc had been a judicial sale In a proceeding 11 tern, which was notice to tho world, and the ptiichiiser took the vessel divested of all liens not pre¬ sented In that suit foi adjudication, l'oi- haps, if the fund produced by the sale of the Globe hud beeu In the registry of Judge NeUon's cuurt, and If tho oontroversv had been In regard to priority of right lo share hi the fund, tile language of the court would have beqn sonievv hut modified. The case ol Blulne vs. die Carter, 4 Cianch 328, seems even more unsallslaetoiy as an authority In support of Judge Benedict's dictum, and the case of the Adele 1 Benedict 308, maintains the theory that all olalmTynoii the fund In the registry, which are pf equal rank should be satisfied In the order In which the several libels were filed. 'JJhe releieiice lo the cases of tho Para¬ gon and I he Fhrnbo In Ware 322 and 359, mci» <illl more unfortunate as authority for the doctrlini'tlicyjiie supposed to sustain, as will be seen from the following quotation from the opinion of the court In the ens'i of the Paragon, viz.: "When.jrll tho debts hold the Mini) rank-of pilvllege, If the prop, erty Is not snfllclcnl to fully pay all, the rule Is that the creditors shall be paid concur¬ rently, each In pioportlon to the amount of Ids demand." The siiino language Is ndopt- ed In the subsequent'easo of tliePlKube. Thus It appears that the theory of Judge Wme mis diametrically onposed to the doctrine In suppoi t of vv hick It seems to have linen quoted. I uppreherd tint the opinion of Judge Benedict mid those who vote with him on the question at issue icsts upon the theory that the mai liline Hen Is simply n right to proceed by' suit agaliist-a vessel or other 'hlug which*!* the subject ol a claim, by name, In other words, bv an action m iem, Instead of proceeding by suit against the owner of the thing, m pcisonam, and this be¬ ing so, the one who llrst asset ts that light Is entitled to complete satisfaction of his claim as against others ol equal rank. And this seems to have been the view taken by Mr. Justice Nelson in the case of the Globe. "1'he question has been the subject of exam¬ ination In the learned district judge for the southern district of New York, hi n case which came before him In 1841 ( lioTiiumph) he held that tho true meaning ofa maritime lien'was, llfut It rendered the property liable to the claim wltout a previous judgment br dtjereeof tho court sequestering or eondem- Ing It, or eslnbllshjng the demand, us at coin, mon law, and that the action m rem carried \ into eflcct; that the appropriation-of the pl-opeity to that'eud became absolute and exclusive on sol; brought, unless supersed¬ ed by some pledge or Hen of paramount ol¬ der; that It resulted from the nnture of the right und the proceedings to enforce It, that the flrBt action by which the pro|>crty was seized was entitled to hold It as against all other claims of no higher character, that the hen, so termed, teas in teality only a privilege to an eat the veat el for the demand, which, of itaelf, constituted no incumbrance on the vessel, and became such only by virtue of an actual at¬ tachment of. the same. 1 concur fully In this view." __ELonUhl6_llieQry QLUie_marltlineJleuatie_ doctrlne of "llrst come, first served," would seem niituriillv to How. But without under¬ taking to cihiciee Its souuih ess from a phll- nsophliul point of view or allude to the con- sequences iuvolved In it, It ia.it> be siifliileiit to diaw attention to the lait that, at u 1 ter pei kid, ihe Supreme < ourl of the United Mutes, in the case rf Viinih vvajer vs. Mills, 10 Howard 82, hue quiln dlllercntly \leflncd the iiiarliiuie lien. In that case Mi Justice Giiei, dtllvc-iing the opinion ol ihc couiti mijs ' The miiillliiio 'pilvilegc' oi lieu Is adopiid I nun the civil law mid Inipnitsa tacli In poihcuitlon ol the subject ol It It is a jua in le, wllhnut actual possession or ail) light ul possession, It iiccoiiipiinlis the piopeily into the hands ol a bona tide piu¬ chiiser. It can be executed and divested onl) by a ptocccding in run, '1 his soitot pio ceodliig against .personal pinpcily Is un¬ known to the common law and is pecullm to the piocess ol the courts of uilmliult)," 'llils langiiag) seems woll calculated to convey the Idea that the maritime lien Is something nioie llian.ii mere right to sue the tiling, which Is the subject of It, tint It lin- poits a light in I he thing, or in (he language of the learned Justin, "a jua in it," enlotce- able and made ellectual by a |noci>ediug m urn, mid only divested l>\ pajmentof |he claim It Is Intended to secure, or by a judi¬ cial sale of the property In a proceeding m rem,' ■In the case at bur the fund to be dlstiib- utid (anil remaining in the registry after sundiy paj im ins ol prefencd claims, pur¬ suant to previous tnders of the court) amounted to the sum of $1,388.10; fioni which the commlssloiici In his report, pro¬ poses to deduct the unpaid costs, $215.55, and the sums seemed In favoi of sundry In- terveidug creditors, In nil amounting to $072.01). Said creditors are five In number, and are all pnid in full except one, Viz : J. P. Donaldson, whose clnlin accrued partly In thn seasonof 1881 mid piutly' in thnt of 1882; while thoso of tho other four creditors accrued wholly In tho season of 1882; lor this reason being preferred over the older claims, pursuant to a former ruling of this court in the' ease of the Selkirk. "All claims ought to be* paid In the Inverse oider of their mlgln, dividing by seasons rather than by voyages us upon the ocean." -, Tlio commissioner proceeds to awnril the residue of said funuY»10(J 08 to Wolf& Da¬ vidson on their decree for $2,1(15.40 by reason of their being the original or first libellants on whoso process the fund nun brought Into the leglstry, to the exclusion of tho claim of DunfordA Alv ei son, amounting to (3,831.10, mid of tho balance of Donaldson's claim. To this repoi t of the cotiiiillssloiiei Wolf d Davidson, by their counsel, except, whoso complaint Is that the report does not award the whole fund, leps costs, lo them, Instead of paying the IIvo credltois "Iioho claims were of later oi igin. To sustain this excep¬ tion would nmnuiit to a lepudliition of the doctrine of the Selkirk, followed and quoted by the commissioners. No sulllclent reason has been assigned In the argument for doing this, i]or lias any authority been quo ed which would Justify the court In making the change ilennmlid by the exception, and thus unsettling Its well established piuctlcr, It Is theiefore overruled. a Exception to said teport has also been filed by Dunfortl & Alverson, "th,e grounds of which are therein stilted iib follows - 1. In that he (the commissioner) has dis¬ allowed their claim. 2. In that he has allowed any portion of the claim of libellants, (Wolf & Davidson) 3 In that he has failed to apportion the sum ol $109 08 (the balance after paying certain othei claims) ratably between libel- lmiN and them. In the arguments of counsel no stress 1b laid on the first or second of [he above grounds; but tho question involved in the third has been discussed with much ability and ev'dence of research. If it cannot be said that the authorities preponderate in fa¬ vor of the exceptor's views, It certainly ap¬ pears ti ue that the conflict among them is so evenly waged that the court is left at llbsrt) to adopt that theory whjch seems, in its judgment, most in -accord with the legal principle promulgated by the Supreme Court of the United States, and In accord with its own view of justice jind propriety. If the maritime lleii imports a jus m re, or proprietnty-rlght-ln-tlie-shlpJtJg-iiot-uasy-to understand why the uiero act of Instituting suit m rem for the enforcement of a Hen should opeiateto divest or supersede the lien of another, pur ly vv hosu _ulnlm la.'of equal rank and met It who, In obedience to the proclamation, coiislituus the proceeding tor the asBerirou of lilscliiim, befoie the final de¬ cree disposing of Hie fund produced bj the gale of ihe vessel. 'I lie mere accident (It mil) he) by which one ol aevi ml libels hap¬ pened u> bctlist bimight lo the cleik's <>IIU.e and tiled, seimt ijuue Insiifllcleiit asuniiu- thoili) lor the mlgliial llhellnnls luivveep llie loud to the cxclin>lou ol all olheis hav¬ ing eo mdlnaie 11 dins Ii this may right- full) be done, vvli) not exclude tint cIiiIiihoI higher lank ii6 well' J heir hnldeis are guilt) of the sauie hiuhis as those of iqunl i auk It may be said Mint theouo who first cmisei the m iest ol a ship assumes the responsibil¬ ity of I lit costs mid ixpi iites ol the proceed¬ ing mid Is pilmailly liable I'oi damages for a a false in rest. Tliennswci Is that the comt Invailiihly makes the just units and expenses a III81 cliuigo upon the fund in the registry, so that no esiential ilsk to the honest llhel- liuit Is involved, mid II any one causes the arrest of a ship on a claim found to bo dis¬ honest and fictitious lie well deserves to be mulct In damages. It Is conceded that a party holding a claim agaliiBt the ship arrested In the admiralty who neglects to obey the injunction of the court, requiring "all poisons claiming the jBame * * to appeal befoie the court * • then and there to Interpose a clalrii for the sumo and to muke their allegations in that behalf," until the property is sold and the proceet s,distributed, by order of the court, is eflectnally cut oil from all remedy against tho ship und Its proceeds. Ills Hen is, di¬ vested by his neglect, the proceeding mrem being notice to all the world. It Is divested by a judicial act; by the solemn Judgment of a court of competent Juilsdlotlon. ,Thls Is In accordance with the'opinion of (lie Su¬ preme Court In tho case of Vandewater vs. Mills. "It can be executed and dlvestod onlu by a proceeding m rem." Dunford & Alvorson's libel was not'only filed before any "final decree" In this enso, but neiii ly two months pi lor to the Intorlocu- toiy deoiee or order by which tho- court found and decroed the Banjo duo Wolf & Da¬ vidson ns duomigos. The date of filing wni also prior to tho sale of the schooner which was mado under an Interlocutory order for that purpose. The claims of Wolf & Davidson, and Dun- ford & Alverson. and tho unpaid romnlndor of tho claim of Donaldson are of equal rank and should share in the residue of the fund produced by the sale of the Arctuius, viz.: $100.08, ratably in proportion is the amounts umiQeotod by any priority of date ot tho an. nounccmunt ot piocecdlngs in this case. The exception of Duulord & Alverson is sustained and the cause Is again referred to the same commissioner with instructions to report anew in accordance with the forego¬ ing. I The following authorities, among others, have been considered and are cited In sup¬ port ol the conclusion of the court, viz.: the Paragon, Ware, 322; Harmon v. .Bell, 22 Eng. L. & E. 02; the Avon 1 Brown, 170; Vandcwater v. Mills, 10 Howard, 82. GENERAL NEWS. James Gordon Bennett was Thursday elected Commodore of the Nevv.York Yacht Club. It Is suid that ten residents of Detroit now favor the erection of a bridge across the De- tiolt rlvci where one did three years ago. The steamship Frisla, with the remains ot DeliQtig and his companions on board, left Hamburg at noon Wednesday for Nov York. Extension of the patent on steam grain shvelB Is opposed bv the directors of tho Baltimore Corn and Flour Exchange; also by Buffalo and Cleveland vessel owners. Duplicate copies have been sent to con¬ gress of the resolutions adopted by the Pennsylvania legislature lequestlng the re storatlou of the land lighthouse at Erie. The foreign trade of Persia Is Increasing anil the Persian Government Is strongly In favor of opening a trade with the United States, and is prepared to vveloeme both American traders and capitalists. The Philadelphia Maritime Exchange hits forwarded to^Congress a petition recom¬ mending the passage of Senutor Hale's bill (S. 234). "To relive ships and vessels from compulsory pilut fm s." _______ Yellow pine boiiids placed in a Mllford, Ph., house ICO vein- ago as flooring are still doing dut) in that capacity. It is probably the oldest iiiiiiiiitaetiiied lumber In the United States that Is In actual use. Messrs Goss, Sawyer & I'ackiud launched on Jiiuuaiy 20th, a sleauie-i, not named, ot about 1)60 tons, built fui ihc-Oiegon Improve¬ ment Coinpaii), and designed us a passenger and freight steamer foi (lie Oregon coiibi The Senaie Committee on Commeice authoilzcd Senator Fiye to report to the Senate for passage a new bill tortile relief of American shipping. This measure has been piepured by the committee Ironi the various bills heietolore lefeind toll on the same general subject, und will beofTered as a sub¬ stitute for thorn. Messrs. Goss, Sawjnr& Packard launched from Iheli jiirel at Bath, Me. on Fcbruar) 2, the 3-mastcd schooner C ty of Baltimore., She leglsteis 35(1.70 tons, and is'owned by Emerson Kokes, and others of Baltimore 1'r.oui whence she hails. L. S. Lawce, of ChrUileld, Md. will command her. This schooner Is the lblst vessel built by the above firm. Captain D. P. Dobbins, of the Buffalo life saving orovv has been In Washington for several days, making a report in regard to the construction of u number of his self- bulling and self-righting life boats. II Is believed by the superintendent that the Dob¬ bins boat possesses many advantages over tho English bout in that It Is moro portable and absolutely unsubmerguble. The encouraging hews comes from Wash¬ ington that the supporters of the Dlngley shipping bill have agreed that no amend, meuts shall be made to It. It will be offered to the House of Representees as a bill cover-