When several torts are of the same character, each arising out of negligence and each claimant arrests the vessel at the same time to respond, there is no principle of maritime law which requires an elder lienor not guilty of laches, and not having committed any waiver or abandonment to have his claim postponed to that of a younger lienor. The Frank D. Fowler, 17 Fed. R. 653–656.

Under maritime law priority in filing the libel does not give priority to the debt among creditors of the same rank and equal merit who intervene and prove their debts. The Lady Boone, 21 Fed. R. 731–732.

In the distribution of surplus moneys the court can only take cognizance of the lien upon the funds, that is, some vested legal or equitable interest in the res from which the fund was derived, as distinct from the claims of general creditors. The Advance, 63 Fed. R. 704–706.

A creditor at large, or a judgment creditor merely, has no such interest and cannot be heard to make a claim to the fund as against the legal owner. Ib. 706.

Claims for insurance premiums and moneys advanced for the operating expenses, and to disburse a ship at foreign ports, are not maritime liens and have no priority as against a mortgagee. The Allianca, 65 Fed. R. 245.

The principle applied to railway companies in the hands of a receiver, giving preference to certain wages and supply debts over a recorded mortgage, is not applicable to proceedings in admiralty. Ib. 246.

Upon an application to have the remnants remaining in the registry of court paid over to the receiver of an insolvent corporation, owner of the vessel, Held, such proceeds of sale after paying maritime liens would be turned over to such receiver rather than paid pro rata upon claims filed and found not maritime liens. The Liberty, 119 Fed. R. 539.

The claims of creditors before the court when a decree is made or when under the rules the parties before the court are entitled to a decree, take precedence of claims of prior dignity filed thereafter. The Sealark, 34 Fed. R. 52-53.

It is no objection to a resale of a vessel where a material increase has been offered, that the purchaser at the first sale has paid into court the sum bid and gone to expense by reason of such purchase. The Sue, 137 Fed. R. 133-134.

RULE XLII

All moneys paid into the registry of the court shall be Moneys to be deposited, deposited in some bank designated by the court, and shall be so deposited in the name of the court, and shall not be drawn out, except

and how drawn.

by a check or checks signed by a judge of the court and countersigned by the clerk, stating on whose account and for whose use it is drawn, and in what suit and out of what fund in particular it is paid. The clerk shall keep a regular book, containing a memorandum and copy of all the checks so drawn and the date thereof.

Decisions

Prior to distribution under final decree, if any part of the sum in the registry of the court is withdrawn without authority, the court by summary proceedings may compel its restitution and any person having an interest in such proceeds in the registry of the court is entitled to intervene by summary proceedings. Osborne v. United States, 91 U. S. 474-479, 23 L. ed. 388.

Where the court upon final decree has ordered the payment of a sum, proceeds of a libelled vessel, and the clerk has drawn a check for such amount, but before it is mailed an execution in the State court is served upon the clerk attaching all debts and credits of the payee in the check, Held, that the clerk holds the check in an official capacity, and that the fund is in the custody of the court and not subject to attachment or garnishment under process of another court. In re Forsyth, 78 Fed. R. 296-302.

RULE XLIII

Any person having an interest in any proceeds in the registry of the court shall have a right, Intervenor for proceeds, by petition and summary proceeding, how to come in. to intervene pro interesse suo for delivery thereof to him; and upon due notice to the adverse parties, if any, the court shall and may proceed summarily to hear and decide thereon, and to decree therein according to law Effect if claim disand justice. And if such petition or claim shall be deserted, or, upon a hearing, be dismissed, the court may, in its discretion, award costs against the petitioner in favor of the adverse party.

Decisions

missed.

Money in the registry of the court decreed to the libellant will not be appropriated to such libellant's debts upon the application of a creditor. Brackett v. The Hercules, Gilp. 184; Fed. Cases, 1,762.

Where there is a fund in court, parties entitled to such surplus, whether by State or Federal laws, and whether their claims are maritime

or not, may intervene and secure a distribution. The Skylark, 2 Biss. 251; Fed. Cases, 12,928.

A mortgagee cannot file a libel against the proceeds, but should apply by petition for a distributive share, if he has failed to appear as claimant to the libel filed against the mortgaged vessel. Schuchardt v. The Ship Angelique, 19 How. 239-241, 15 L. ed. 625.

The mortgage is subordinate to maritime liens given either by State or under maritime law. Its only standing in admiralty is against the balance in the registry by petition under Rule 43. The Alice Getty, 2 Flip. 18; Fed. Cases, 193.

The priority of a recorded mortgage under sec. 4,192, Rev. Stats., Act of July 29, 1850 (U. S. Comp. Stats. 1901, p. 2837), announced in the cases of The Grace Greenwood, 2 Biss. 131; Fed. Cases, 5,652 and The Skylark, 4 Biss. 388; Fed. Cases, 12,929, declared not to exist, but that the lien for supplies and repairs given by a State statute takes precedence of such recorded mortgage. The J. E. Rumbell, 148 U. S. 1-19, 37 L. ed. 345.

Seamen and salvors are alone entitled to be paid before all libels and petitions for distribution of proceeds are heard and determined. The Fanny, 2 Low. 508; Fed. Cases, 4,638.

A salvor cannot proceed in admiralty to secure a contribution of a fund in court already decreed to be paid another salvor. Sheldrake v. The Chatfield, 52 Fed. R. 495–500.

Rule 43 does not allow one claiming no interest in a ship libelled to claim by petition a share of what the court may decree to the libellants, and by the summary methods of admiralty litigate a claim between petitioner and libellant. Ib. 500.

The court has power to distribute the surplus proceeds to all those who come in by petition under Rule 43 in the order of their several priorities, no matter how their claims originated, if they have a specific lien on, or vested right in, such surplus. The Lottawanna, 21 Wall. 558-582, 22 L. ed. 654.

Any person having a specific lien on, or vested right in, the proceeds may intervene by petition, although his claim requires the settlement of partnership accounts. The L. B. Goldsmith, Newb. 123; Fed. Cases, 8,152.

Where a vessel has been seized under a warrant of arrest and a notice given as required by Rule 9, upon a libel filed by a material man, other material men may intervene and proceed without further advertisement to enforce their liens, as the jurisdiction of the court is complete by the possession of the res first taken. The Julia, 57 Fed. R. 233–236.

Where a vessel has been libelled and sold in a suit for salvage and proceeds brought into court, Held, that the owner could not be permitted under Rule 43 to intervene for a delivery of the fund upon filing bond and stipulation before any proceedings for distribution of the fund were taken under Rules 57 and 58. Rule 43 refers to cases where a person claims such an interest in the proceeds in the registry of the court that entitles him to recover the whole or part thereof rightfully belonging to him without the necessity of further adjudication than that authorized and required by the rule. The Chief, 142 Fed. R. 349–353, 73 C. C. A. 459.

While admiralty will distribute a fund among all claimants of equal degree without reference to priority of proceedings to enforce, yet where one has contributed nothing to establish the liability of a vessel for a collision and taken no part in a protracted litigation to that end he will not be allowed to share in the proceeds of the sale of such vessel until the claim of the party prosecuting the suit has been satisfied in full. Woodworth v. Insurance Company, 5 Wall. 87-89, 18 L. ed. 517.

RULE XLIV

matters to commis

In cases where the court shall deem it expedient or necessary for the purposes of justice, the court When court may refer may refer any matters arising in the sioners. progress of the suit to one or more commissioners, to be appointed by the court, to hear the parties and make report thereon. And such commissioner or com- And powers of such. missioners shall have and possess all the powers in the premises which are usually given to or exercised by masters in chancery on reference to them, including the power to administer oaths to and to examine the parties and witnesses touching the premises.

Decisions

Where the validity of a bottomry bond is contested the court will order a reference to ascertain its particulars at the time and occasion upon which the advances were made by the obligees. Furniss v. Magoon, Alc. 55; Fed. Cases, 5,163.

After the court has determined the main questions in a controversy, it is proper to refer a case to a commissioner to take proofs of the nature, extent, and value of the services and credits claimed. Shaw v. Collyer, 18 How. Pr. 238; Fed. Cases, 12,718.

It is unnecessary to state the special reason for a reference to the clerk to take testimony as a commissioner. Such reference may be made

whenever the court deems it necessary or expedient. It is only necessary to state a special reason for the appointment of the clerk as a receiver or master. The Wavelet, 25 Fed. R. 733–734.

An exception to the commissioner's report goes to the merits of his decision and reaches no further than to bring before the court for consideration the adequacy of the grounds in law or fact upon which the report is founded. The Columbus, 1 Abb. Ad. 37; Fed. Cases, 3,041.

The exceptive allegation to a proceeding in a cause has in the civil law the character of a plea. It cannot be employed in admiralty practice to determine the regularity of the acts of an officer of the court not incorporated in and constituting a substantive part of the proceeding excepted to. Ib.

The propriety of the refusal of a commissioner to allow contradictory testimony to be given cannot be raised by an exception to his report. It should be raised by an application to the court before the report is made to direct the commissioner to allow the person to be sworn. The E. C. Scranton, 4 Ben. Adm. 127; Fed. Cases, 4,272.

Objection to the admission of evidence before a commissioner cannot be raised by exception to his report. The Transit, 4 Ben. 138; Fed. Cases, 14,138. But see next case.

When the commissioner excludes evidence offered by a witness about to go to sea or when the testimony may be lost if not then taken, the correctness of the rulings of a commissioner may be brought before the court for an immediate decision by means of a certificate of the commissioner as to his ruling. In the absence of such urgency the practice is for the commissioner to proceed to a report, which, with the evidence and his rulings upon objections taken to the admission of evidence, should be brought before the court upon the proper exceptions taken to his conclusions, and to such rulings of the commissioner as were objected to at the time. The Beaver, 8 Ben. 594; Fed. Cases, 1,200.

Held, that the case of The Transit, 4 Ben. 138, was not intended to decide that the correctness of the commissioner's rulings upon evidence should not be examined into after the report made. Ib.

A general exception to the amount found by a commissioner upon a reference is sufficient, where all the evidence taken is attached to the commissioner's report. The Merritt & C. D. & W. Co. v. Morris & C. D. Co., 132 Fed. R. 154–155.

Where the cause is referred to a commissioner (for findings of fact and conclusions of law) by written consent of the parties, the same regard must be had for his findings as to those of a master in chancery. In such case his findings of fact and conclusions of law are to be treated as un