VOL. 1 The brig had been condemned and sold at the suit of material men, in virtue of the lien secured to them by the laws of Pennsylvania, and a surplus remained in the registry after payment of their demands. Among the petitioners against this surplus, were Harper and Bridges, who had also supplied materials for the construction of the vessel; but not being persons of the description provided for by the statute of Pennsylvania, they had acquired no maritime lien. They, however, held a bill of sale of the vessel, executed by the owner, to them, absolute in terms, but in reality designed only to secure them for large sums of money advanced, and materials furnished for the use of the owner in building the brig. The court, upon a critical review of the cases of The John and The New Jersey, above cited, came to a clear conclusion, 1, that, independently of the bill of sale, the claim of the petitioners could not be sustained, inasmuch as it was founded in a mere personal contract with the owner, conferring upon the petitioners no right of priority over his other general creditors; and, 2, that whether the bill of sale was to be regarded as importing an absolute sale, or as a mortgage, it entitled the petitioners to the remaining proceeds in court. According to this well considered and well reasoned case, therefore, whoever has a lien or fixed right of priority of payment, attaching to the thing from which the surplus and remnants in court proceeded, whatever may be the nature or origin of the lien or right, is entitled to resort to this fund for satisfaction. Although the claim of the petitioners embraced a before the court, claim might have these respects, been different, the The doctrine of these cases seems to have been fully sanctioned by Mr. Justice STORY, in The Ship (a) The court was, however, fully aware of its responsibility in regard to the surplus. The judge, adverting to the absence of any party entitled to controvert the rights of the petitioners against the fund, observed that it was "nevertheless the duty of the court to look carefully to the disposal of it. It cannot go out of the custody of the court, but by the action and order of the court; and no such order will be made, until the court is well satisfied that the party asking for it is legally entitled to it. It is not a derelict to be picked up by the first person who may lay his hand upon it: it has a legal owner somewhere, and to him only should it be transferred." Soon after the passage of the late act of Congress, conferring admiralty jurisdiction on the district courts, in relation to inland commerce, a case of salvage arose in the District Court for the Northern District of New-York, in which the cargo of the vessel had been insured. A surplus of the proceeds of the sale of the cargo remaining in court, after the payment of the amount of salvage awarded, the underwriters, who had paid for a total loss, petitioned to have this surplus paid to them; and the court directed the payment, on the ground that they stood in the place of the insured. CHAP. 1. VOL. 1. Packet(a), and in The Boston and Cargo(b), in which he repelled the claims of insurers, on the ground that, though the property concerned had been abandoned to them, they had not accepted the abandonment. "This court," said he, "in the ship Packet, looks only to the ownership, general or special, in the thing itself, and to such claims as are direct, as a lien, or a jus ad rem." The general principle on which these decisions are founded, as the learned reader will not fail to observe, is this: that the right of intervention for payment out of surplus proceeds, extends to all claims supported by liens, whether implied by the maritime law, or expressly created by special contract. The right, therefore, is placed by these cases on substantially the same footing as that on which it has at length been placed in England by the aid of the statute 3 & 4 Victoria. It is true that the application of it by Judge PETERS, in The New Jersey, in favor of the master's claim for disbursements, would have been unwarrantable in England, where no lien is allowed to the master, whether on the ship or freight, for advances; and that it was questionable here, where it has not even yet, as I am aware, been decided, that the master has a lien on the ship, though he is held to have a lien on the freight(c). It is true, also, that the principle laid down in the American cases does not embrace judgment creditors as such, though in England, as we have seen, a judgment creditor was, in The Flora, (a) 3 Mason's R., 255. (c) Vide infra, MARINERS' WAGES. held to be entitled to payment out of surplus pro- CHAP. 1. ceeds, apparently without reference to the levy in his behalf on the ship, previous to her arrest by the admiralty process(a). It is not to be disguised, that the duty of courts of admiralty, touching this form of redress, seems to have been supposed, both in England and in this country, to depend, in some measure, upon considerations of expediency, as well as upon the mere question of jurisdiction. To exclude misapprehension it is proper to add that the principles above stated are to be deemed applicable in their full extent only to those cases of which the court takes cognizance as an instance court of admiralty, and that with respect to the proceeds of vessels condemned and sold by order of the court in the exercise of its prize jurisdiction, these principles require to be qualified. It is a settled principle, both in England and in this country, that in prize cases, no mere lien created by contract between the parties, and not perceptible to the captor, can be recognized as against the rights of capture. These act upon the property, without regard to secret liens held by third parties; as, on the other hand, the rights of the captor do not extend to liens possessed by enemies upon property itself protected from capture. He has, in general, no means of discovering liens of this latter description; and if effect were to be given to the former, the consequence would be, that the captor would VOL. 1. II. Intervention pendente lite. be subject to the disadvantage of having neutral liens set up to defeat his claims upon hostile property, while he could never entitle himself to any advantage from hostile liens upon neutral property. It is only therefore where the liens result from the known principles of the general maritime law of nations, independently of express contract, that it can be recognized in a prize court of admiralty. The lien which a neutral ship-owner has upon the cargo of an enemy on board, is an instance of this. The owner of the ship having the cargo in his possession, subject to his demand for freight, is entitled by the general law to detain it until the freight is paid. He has "an interest directly and visibly residing in the thing itself." On these grounds his claims are respected even in a prize proceeding, and the freight is to be paid out of the proceeds of the captured property; but the reason of the exceptions determines its extent. The rights of the captor have accordingly been held to be unaffected by the lien of a neutral bottomry bond-holder(a), or a lien by way of pledge for the payment of purchase money(). Having now completed what I had to say of the right of intervention against surplus proceeds, I proceed to a very brief consideration of the right of intervention in hostility to the libellant, pending the suit. Whether these rights are exactly coextensive is a question to which the reported judicial (a) The Tobago, 5 Robinson's Adm. R., 221. (b) The Marianna, 6 id., 24; The Frances, 8 Cranch's R., 418 (3 Curtis's Decis. S. C., 200). |