THE LILLDl:LAURIE.

219

satisfaction by Tuyes and Moulton. As to Tuyes, he- is in fact subrogated,to the rights, so far as they have any, of the owners of the RichmODd in the decree against himself. If the decree is not he is, in effect, its owner, so that the levy of this execution upon his property is an attempt to compel bim to pay a decree which he haa compromised, and tbeowners of which have attempted to subrogate him to their rights th{lrein. In short, it is an attempt to enforce by execution payment of a.decree which, if it is not already satisfied, is the property of the per-sone froinwhom its payment is to be exacted. No question is made in reference to the method adopted by Tuyes and Moulton to gain the relief prayed for. The power to control their own process so aa to prevent injustice is one which belongs to all courts. McHenry v. Watkins, 12 Ill. 233; RusseU v. Hugunin,l SCllm. 562; Adamsv. Smallwood,8 Jones, C.) 258; Barnesv. Robinson,4 Yerg.186; Azcarativ. FitzaimmollBI 3 Wash. C. C. 134; Dams v. ShaplRty. 1 Barn. & Ado!. 54: Humphreys v. Knight, 6 Bing. 572. The exercise of this power is invoked by their motic>Ds, and there seems to be no good reason wby the relief asked for should not be granted. The motions are allowed.

THE LILLIE LA.URIE.

(Circu{t Court, E. D. Tezas. November Term, 1880.1
1.

ADMIRALTY-PRIORITY OJ' LIENS.

Liens for salvage and for damage to goods aTe inferior to the lien of seamen for wages eat'ned on a subsequent voyage, but, being general maritime liens, aTe superior to those of mortgaj;tees, whether their mortgages were registered before or after the origin of the maritime liens.

Liens for salvage and for damage to goods are superior to a state St&tutor, u. for supplies subsequently furnished, in the home port. S. P AYHBNT. A libel for and for damage to goods was dismissed, and decrees were rendered in favor of certain furnishers of supplies in the home port, on a lien created by the state law, each decree being for less than $50, and therefore not subject to appeal. Libelant appealed to the circuit court, and, pending his appeal, the decrees for supplies were paid in full, though the proceeds of the vessel were in. suftl.qient to pay both classes of claims. HeW, that the payment was improvidentlymade, as the question of priority was C8l'ried up by the llbelant's appeal.

2. SAME.

In Admiralty. !Jibel for seamen's wages. On appeal from district court. The original libel was filed by Dennis Mahoney to recover seaman's wages. Several other seamen intervened, and filed similar libels. One E. N. Stevenson also intervened, and filed a libel for damages sustained by the nonperformance by the Laurie of a contract of affreightment and for salvage. Upon this latter libel the facts disclosed by the evidence were as follows: The schooner, in December, 1878, was bound on a voyage from Galveston to Moss' Bluff, on the Trinity river. A part of her cargo consisted of merchandise, valued at more than $1 ,200, the prop-

220

FEDERJ\.LREPORTER,

vol. 50.

erty of the Deoember 16th, a short distance be· lo'w"herdestination on.the Trinity river, the schooner, from some cause by the evidence, sank .in water 20 or 30 feet deep. Her h\1U utterlysuhmerged. The schooner was abandoned by her mastel', who told Stevt:nson to undertake to save her as best he could. Steemployed a large force of men, aud by strenuous exertions raised landed her cargo, which was in a damaged condition. This libel was filed to recover the damage sustained hy his goods, which he claimed to be $311, and for salvage, for which he claimed $150. His claims were not illHhediately put in suit, owing to the negligence of his proct.or, in whose charge they had been placed. The schooner resumed her business., and afterwards contracted the debts for seamen's wages, for which Mahoney and others brought their libels. On August 15, 1878, a mortgage on the schooner to oneJ. F. Magalefor $240 had been duly recorded in the customhouse at Galveston, which was her homllport, and on June 7.1879:; another mortgage to one B. Dllgat for $227 was duly recorded in the same office. These mortgagees also filed intervening libels. Certain furnishers of supplies in the home port, who, by complying with the local law of Texas, had acquired liens on the schooner, also filed interlibels against her. The supplies for which these latter liens were claimed were all furnished after the sinking of the schooner on December 16, 1878. The schooner was seized upon the libel of Mahoney, and by order of the district court was sold,and .her proceeds, amounting to $528, were paid into the registry of the court. The district court made a final decree dismissing the intervening libel of Stevenson' for damages and salvage for want of evidence to sustain it, and decreed in favor of the seamen who sued for wages, the mortgagees, and the furnishers of supplies in the home port, who had acquired liens by virtue of the-state law, and ordered a distribution of the fund in the registry among those who by its decree were entitled to it. The decrees in favor Q;Lthe seamen and ,the furnishers of supplies were, respectively, for less than $50 each. Stevenson appealed to the court from, the decree diaal}Dwing his and from the decrees in favor of the mortgagees; the fund in the registry not beipg sufficie.nt to pay him and the mortgagees. fending the the decrees in favor of the seamen and the furnishers of supplies, amounting in the to $195. 93, were paidin full out of the registry of the district court,leaving, after the payment 'of the costs, only a balance of $100.37, to be applied to the payment of Stevenson'.sclaims should this court decree in his favor. Wharton Branch, for Stevenson. k N. Mills, Goo. W. Davis, and Henry Sayles, for the mortgagees.
WOODS, Circuit Judge. The testimony upon the hearing in this court establishes conclusively the claim of Stevenson for salvage and for damage to his goods resulting from the sinking of the Lillie Laurie. The salvage claimed .($150) only covers the aQtual expenses incurred by Stevenson in raising the schooner, with a very moderate compensation for his 01"11 services. The damage to his goods ($311) is also clearly estab-

LlJ,LIE LAURIE. , .

221

lished,and there is no evidence to show that the damage {ell within any exception made in the bill of lading. There must, therefore, be a decree in favor of Stevenson for both claims, amounting in the aggregate to $461. The sum which the schooner brought when sold by order of the district court, to wit, $528; not being sufficient to pay all the decrees against her, it becomes necessary to settle the order in which the decrees llre to be satisfied. The claims of the seamen were for wages earned upon voyages subsequent to the date of the salvage service rendered by Stevenson and the date of his claim fat damage to his goods. They are therefore entitled to priority of payment by reason of that fact. The Paragon, 1 Ware, 326; SurplU8 of the Ship Trimountain, 5 Ben. 246; The Hape, 1 Asp. 563; Porter v. The Sea Wit(;h, 3 Woods, 75. It bas even been held that seamen's wages are entitled to priority over all other claims. The Paragon, ubi lWp'ra. The seamen are therefore entitled to be paid their claims in full before payment to any other lienholder. The claims.of Stevenson, which are strictly maritime liens, by the general maritime laws are entitled to prioritYi of payment over the claims of mortgagees, whether the same were registered before or after the origin of Stevenson's claims. Baldwin v. The Bradish Johnson, 3 Woods, 582. And Stevenson is entitled to priority of payment over debts contracted subsequent to the date of his claim for supplies to the schooner furnished in her home port, and which are a lien upon the vessel by virtue of state law only. Baldwin v. The Bradish Johnson, ubi supra; The John T. Moore, 3 Woods, 61. of the sale of the schooner should be The order in which the distributed is therefore as follows: First, the costs of suit; second, the decrees for seamen's wages; and, third, the decrees in favor of Stevenson for salvai5e and for damages to his goods. As the fupd in the registry of the court will be insufficient to pay these claims, it is unnecessary to go An interesting question of practice is raised by the fact that the decrees rendered by the district court in favor of the furnishers of supplies in the home port,each decree being for a less sum than $50, and the decrees, therefore, not being subject to appeal, were paid in full out of the registry of the court, pending the appeal of Stevenson. Were these decrees properly paid? It seems to me clear that they were not. The fund in the registry being insufficient to pay the costs, the maritime liens, and the claims of these furnishers of supplies, a controversy necessarily arose between Stevenson and the supply men touching their right to priority of payment. The libel of Stevenson having been dismissed by the district court, his right to priority of payment over the supply men could only be settled in the circuit court, and that question was taken up by his appeal. All that the supply men could insist on was that the amount of their olaims should not be disturbed by the circuit court, that having been finally settled by the district court. But, as long as Stevenson was prosecuting his appeal and claiming priorit; over' them in the circuit court, they could not isettle that question in their own favor by getting

222

nDmAL REPORTER ,vol.

50.

plJlymeftl.eUheirclaim.s;ill' full frdmtbe registry oHhe district
To hold otherwise would be to allow the fund against which an appellant was,p,oBecuting his claim to be entirely withdrawn, and thus deprive him'of'alJ the fruits ofbis:'appeal and decree shbuldthe appellate court in: his favor. When there is a fund in the district court against which: Several libelants ate prosecuting claims, and it is insufficient to pay all, and the claim of one libelant is disallowed, and he appeals to the :circuit court, no payments should be made from the fund until after the decree of the circuit court upon the appeal. By such an appeal the wJhOle'decree isbrough,t .l!1p. The part not appealed from remains here in fun force, to be executed on the final termination of the cause. .What is not reversed isstiI'1 in force and a necessary part of the decree of this is to be executed as such. . 'l!he Roarer, 1 BIatchf. ·1. The result of'£his view is that the entire fund should have been sent up to this court with the appeal. "The appeal carries up the res, or money in the registry of the district court, to the circuit court, and, when the rights of the parties are adjudicated there, the court must carry into execution its own deoree." v. AnderBOn, 21 How. 386.

WILMOT

et iU.

tI. THE CARA.

(Circuit oourt, D. Louutana. April Term, 1880.)
!UBITIMlI L1'JlIl'fll....SUPPL1ll18J.T HOME

Under Rev: C1vUCode La. art. 8274, declaring that should bave ef. feet aga10t third 'persons, unless. recorded in the manner required bylaw," the owner of a vessel who has chartered her to another ls a "th1rd person," w1th 1"8.pact to persons who claim,a lien under the state law far supplies furnished in the home port; 'Beard. v. OMppeU., 28 La. AnD. 694, followed.

01' BTATUT1Io

In Admiralty. Libel by W. G. Wilmot & Co. against the Cara for supplies, Lagan & Mackinson interveners. On appeal from district court. J..ibel and intervention dismissed. The libelants, W. G. Wilmot & Co., and the interveners, Lagan & Mackinson, assert a lien upon the defeudants, the steamboat Cara, for supplies furnished in the home port. The lien is claimed under the local law of Louisiana, (Rev. Civil Code, art. 3237.) The dflfense, set up by way of ,exception, is that the contract for supplies was not recorded, as required by law,and therefore no ,lien attached. The libelants olaimed for coal furnished the Cara to the amount of 8345, between January 13 and 23, 1879. Their lien therefor was not recorded until March 7,1879. The interveners, Lagan.& Mackinson, claim $74.07 for other supplies furnished between January 9 and 13,1879, and their lien was not recorded until March 10,1879. Rev. Civil Code, art. 3274, declares: "No privilege should have effect against third persons, unless