tribution for salvage, may be treated as a substitute for the cargo delivered and be required to be brought into court to be subject to a libel against the cargo for salvage. The Queen of the Pacific, 18 Fed. R. 700-702.

Where a cargo is arrested in admiralty proceedings against the freight, the owner of the cargo or consignee should pay into the registry of the court the freight admitted to be due. He cannot be compelled to give bail for the value of the cargo, and ought not to be allowed to give security for the freight under ordinary circumstances, but should pay the same into the registry and file his claim, and set up his right by answer. The Freight Money of the Monadnock, 5 Ben. Ad. 357; Fed. Cases, 9,704.

The paramount lien of seamen for wages will be enforced in admiralty upon freight money, although such money has been attached by the sheriff on proceedings in a State court. The Sailor Prince, 1 Ben. Ad. 234; Fed. Cases, 12,218.

That the consignee was garnisheed in a State court for the amount of the freight is no defense to a petition which seeks to bring the freight in admiralty, to answer in a suit to enforce a paramount maritime lien. The Caroline, 1 Lowell, 173; Fed. Cases, 2,419.

RULE XXXIX

If, in any admiralty suit, the libellant shall not appear and prosecute his suit, according to the Libellant not appearing, course and orders of the court, he shall libel to be dismissed. be deemed in default and contumacy; and the court may, upon the application of the defendant, pronounce the suit to be deserted, and the same may be dismissed with costs.

Decisions

A motion to open a default is discretionary under Rule 39 and is not reviewable on appeal. Cape Fear Towing & T. Co. v. Pearsall, 90 Fed. R. 535-537.

Since the claimant has an equal right under the rule to move the case, the libellant's delay in bringing the cause to a hearing after issue joined is not ground for its dismissal. The Mariel, 6 Fed. R. 831-832.

Where a suit is dismissed because the cause of action is not within the admiralty jurisdiction of the court, no costs can be awarded. Reliance Lumber Co. v. Rothschilds, 127 Fed. R. 745–749.

RULE XL

The court may, in its discretion, upon the motion of the Decree against a defend- defendant and the payment of costs, ant, when may be rescinded. rescind the decree in any suit in which, on account of his contumacy and default, the matter of the libel shall have been decreed against him, and grant a rehearing thereof at any time within ten days after the decree has been entered, the defendant submitting to such further orders and terms in the premises as the court may direct.

Decisions

A rehearing in admiralty cannot be had after the term at which the decree was made. Hogg v. Pennsylvania Annex No. 3, 38 Fed. R. 620621; The New England, 3 Sumn. 495; Fed. Cases, 10,151.

Contra. An admiralty court has power to review its decree after the term at which the decree was passed. Janvrin v. Smith, 1 Spr. 13; Fed. Cases, 7,220.

A decree in admiralty is deemed to be enrolled at the term at which it is made. The New England, 3 Sumn. 495.

A libel in the nature of a bill of review in equity will lie after a final decree under similar circumstances as in equity. Ib.

To set aside a decree pro confesso the respondent must satisfactorily account for his laches and present by answer or affidavit a good defense. Scott v. The Propeller Young America, 1 Newb. Ad. 107; Fed. Cases, 12,550.

A court of admiralty will entertain a libel for review filed after the term has passed at which the decree complained of was rendered and after the decree has been executed, where actual fraud is charged, and a libellant without fault is otherwise without remedy. Car Company v. Hopkins, 4 Biss. 51; Fed. Cases, 10,334.

Where a cause was not tried until eight years after filing the libel, and in the meantime the claimant became insolvent and died, and the surety upon his bond had reason to suppose his liability extinguished and knew nothing of the decree rendered until after the expiration of time for appeal, a review of the decree after the term at which it was rendered will be allowed, especially where the testimony does not support the libellant's claim. Jackson v. Munks, 58 Fed. R. 596-600; affirmed, 66 Fed. R. 571.

The rule that a cause may not be reheard after the term at which it

was decided except upon a showing of fraud applies only to direct proceedings in the same cause, and not to an original suit. Ib. 599.

The court has no general power after the expiration of the term to set aside a final decree on the grounds of oversight or mistake. The Illinois, 1 Brown's Adm. 13; Fed. Cases, 7,003.

The time limited in Rule 40 is binding upon the court when once the period prescribed by the rule has passed, though it might be extended on application beforehand. Ib.

Where a default has been taken, the summary jurisdiction to rehear is limited to ten days, irrespective of the terms of court. Snow v. Edwards, 2 Lowell, 273; Fed. Cases, 13,145.

Although the term has passed in which the decree was rendered and after ten days in defaulted actions, the court has power to entertain a libel of review. Ib.

A default irregularly taken may be waived by defendant's subsequent appearance before the commissioners without objection. Gaines v. Travis, 1 Abb. Ad. 297; Fed. Cases, 5,179.

If the rules requiring notice have not been complied with, it is good ground for opening the decree and letting a party in to defend, but the decree is valid until set aside or reversed. Daly v. Doe, 3 Fed. R. 903– 912.

A motion in the trial court for a rehearing on the ground of newlydiscovered evidence will be denied where the parties are entitled as a matter of right to a new trial on appeal. Mainwaring v. Bark Carrie Delap, 1 Fed. R. 880-881.

A bill of review in an admiralty court is permitted in the absence of other remedy. Such bill of review may be filed to review a decree of an admiralty court after the term at which it was enrolled. It lies where in a suit in rem or in personam property has been disposed of without personal notice to the owner, and also where there has been fraud in the proceedings in the original suit, and where there has been fraud or misconduct by the purchaser, or in the sale. No usual limit of time, or other technical limitations should embarrass the court in detecting and correcting fraudulent proceedings in obtaining its decree. The Columbia, 100 Fed. R. 890–892.

An application for a rehearing in the appellate court made after the term when the final decree was entered comes too late. The Comfort, 32 Fed. R. 327-328.

registry.

RULE XLI

All sales of property under any decree of admiralty shall Sales to be by marshal, be made by the marshal or his deputy, proceeds to be paid into or other proper officer assigned by the court, where the marshal is a party in interest, in pursuance of the orders of the court; and the proceeds thereof, when sold, shall be forthwith paid into the registry of the court by the officer making the sale, to be disposed of by the court according to law.

Decisions

It is the duty of the marshal to bring the proceeds of sales into court with his regular account. The Avery, 2 Gal. 308; Fed. Cases, 671.

Where the decree directs the officer to make sale and bring the proceeds into court, if the sale is made on credit and security given, the creditor may require that the security shall be brought into court. Wallace v. Thornton, 2 Brock. 422; Fed. Cases, 17,111.

The court has power to make sale of property in the custody of the collector of customs to secure the payment of duty in a libel to recover freight. Such sale being subject to the claims of the United States. Two Hundred and Fifty Tons of Salt, etc., 5 Fed. R. 216–220.

A sale by proceedings in rem in admiralty in a court of competent jurisdiction extinguishes all liens upon the property sold, and vests a clear title in the purchaser. The Trenton, 4 Fed. R. 657–659.

Such sales may be impeached by showing that no jurisdiction of the subject-matter existed, that the sale was made by a fraudulent collusion, or was contrary to the principles of justice. Ib. 661.

The proceedings must be both fraudulent and collusive and the purchaser must be a party to the fraud. The Garland, 16 Fed. R. 283–286.

Where upon a sale had the purchaser obtains possession of the property without paying the price the court will enforce a redelivery of the property or the payment of the purchase money by summary process. The Phoebe, 1 Ware, 368; Fed. Cases, 11,066.

On a libel for freight where the claimant alleges a tender and pays into the registry of the court the amount tendered the libellant may have leave to take the money out of court, and proceed for the balance alleged to be due. Higbee v. Ninety-Six Hundred Cases of Tomatoes, 59 Fed. R. 783-784.

Under Rule 41 the court has jurisdiction to determine between claimants who have a right to or a lien on the res. Controversies between claimants involving breaches of contract or even equities, but which do not amount to a specific right in or to the res are not within its jurisdiction. Miller v. The Peerless, 45 Fed. R. 491–493.

In a case where the mortgagor had given the mortgagee an absolute bill of sale conditioned to pay certain indebtedness, upon a sale of the vessel under maritime liens, Held, that the right of the mortgagor was in no sense a right to the res in respect of the surplus. Ib. 493.

A court of admiralty has no jurisdiction to entertain an action to foreclose a mortgage; but when the court has a fund to dispose of, the proceeds of mortgaged property, it may entertain claims based on mortgages, to pass upon their validity and priority, and order such to be satisfied out of the funds in the registry of the court, subject to the paramount right of maritime liens and superior liens and claims. The Katy O'Neil, 65 Fed. R. 111-113.

Where petitioner has a (maritime) lien granted by a State law, such lien attaches to a surplus in the registry of the court, proceeds of a sale, and as between the lienor and owner he is entitled to be paid out of the proceeds. Topfer v. Schooner Mary Zephyr, 2 Fed. R. 824-826.

Where funds are in the registry of the court upon the sale of a vessel in a possessory suit parties holding claims for repairs and supplies furnished the vessel, who intervene, should be paid out of the proceeds in the registry of the court. The Templar, 59 Fed. R. 203–208.

As against the owner the court has no power to distribute the proceeds of a sale in payment of claims not maritime liens. The Lydia A. Harvey, 84 Fed. R. 1000-1001.

Where the party could not have proceeded against the property in rem he is not entitled to recover a portion of the proceeds in a case where the owner appears and opposes the application. The Lottawanna, 20 Wall. 201-224, 22 L. ed. 259.

The order in which liens are paid usually is: First, The costs of sale and of the keep or storage; second, seamen's wages, unless subject to prior claims for salvage; third, claims for towage and necessaries furnished in a foreign port; fourth, claims for supplies and materials furnished at the home port, entitled to a lien under the State law; and, fifth, mortgages. The City of Tawas, 3 Fed. R. 170–172.

Maritime liens are entitled to be paid in preference to those under a State law. Ib. 174.

The court may require claimant to prove his right to any part of a fund in court. Dent v. Radman, 1 Fed. R. 882-891.