THE ALICE STRONG.
known, as would throw upon the pilot boat the reSponsibility of undertaking any sudden change in her course in a fog. Her situation was evidently in extremis from the first. Decree for the libelants, with costs.
THE ALICE STRONG. GREENHALGH et al v. THE ALICE STRONG. (District Court, N. D. Ohio, E. D. May 23, 1893.)
ADMIRALTy-PRACTICE -ASSIGNMENT TO PROCTOR OUT OF PROCEEDS-LIEN.
An assignment by the libelant in an admiralty case, who has reasonable assurance that he Is to recover a certain amount, of a definite sum to his counsel for professional services, to be paid out of recovery that might be had, is sufliclently certain, and on suflic1ent CODsideration, to support a lien on the proceeds. Kendall v. U. S., 7 Wall. 113, distinguished.
The lien of such an assignment has priority over the claim of a judgment creditor in a state court, who subsequently files his intervening petition in admiralty, after the court has decided that libelant is entitled to recover some amount on his llbel.
In Admiralty. Libel by Robert Greenhalgh against the steam barge Alice Strong. Heard on exceptions to an intervening petition by Thomas R. Toare and :M. Thomas against the proceeds. Exceptions sustained. Goulder & Holding, for libelant. Ong & Hamilton, for respondent. RICKS, District Judge. This case is now before the court upon the exceptions of the libelant to an intervening petition ftled by Thomas R. Toare and M. Thomas against the proceeds of the barge Alice Strong, which are now in the registry of the court. These exceptions are ftled by the proctor for the libelant, who claims as the basis for his exceptions that on the 26th day of January, 1893, the libelant gave to him, by written assignment, an interest, to the extent of $300, in any decree which he might recover against the respondent. This written assignment was duly filed on the date named, and minute of the filing was made upon the docket of the court. On the same day an assignment was likewise filed by the libelant, in favor of John 'l'homson, in the sum of $136.75, for which written instrument, an interest amount the libelant assigned, to that extent in any decree which might be entered in his favor in this case in this court. Similar memorandum of the :filing and execution of the assignment was made upon the dockets of the court. The intervening petition of Toare et al. was filed on the 6tli. day of May of this year, some time after, according to the opinion of this court, libelant was entitled to a decree for some amount against the respondent. Said petition avers that the petitioners are judgment
creditOJ.lsofl[the libelant in;tlii!lel1Se"to the amount· of for whfcll'sum thet xecovered a ju.dgment< before a justice of the peace in and for the county of and that upon said judgment they filed a creditor's petition· i8' ,the .court of common pleas, sooking to reach whatever surplus proceeds there might be due the libelant in this case in this court, by injunction and process served upon the libelant. It is first important to consider whethet the assignments of the libelant made ito Goulder and Thomson are valid and· binding. I see no reaspp, for doubting . eitherthe consideration for which those assignments wereinade, or the fact that they are effective, in law, in transferring to the assignees' an interest, to the extent named, in whate'Ver Jund Or decree t];Lere Wight be found in libelal\t's favor. n is contended that the assignment being for only a part of the decree, andtthe decree being f01"an uncertaip. amount; it did not to' gives them priority of .lieJl. ,on tJieifundin ;Oases are cited by cOlu;llilel to support this proposition, but these cases rest upon quite a different principle... They . are cases in which the claim assigned was unbeen consEmtetl:to by the debtor party, and. were vague in amount., In the case. of Kendall v. U. S., 7 Wall. 113, the claim was for fees due the .Kendalia for prosecuting a claim due from the United States to a certain band. of Indians. The United 'States had not. recog1iized. the validity of Kendall's claim. ." The Ii,idians had not agreed upon the .sum due the and there Ware' fuereforethese two elements wanting, necessary to a valid assignment. So, in the other cases cited, the same principle is adjudicated. But here we have a claim, the arilount of which is assented to by the assignor; the consideration, the court knows judicially, is, at least in part, just and meritorious; and the decree or futtdout.ofwhich the,assignment was to be paid is sufficiently definite to.' support a lien or transfer from the assignor. I do not understand counsel to contend that the consideration is not good. Services were rendered, the libelant in this case, and in other cases, as stated/in the assignment. In the absence of proof to the contrary, and in':view of the professional services rendered in this case, of which the court can take judicial notice, I think there is no trouble in disposing of the question as to there being a valid consideration fol' this assignment. At the time the assignment was made, this case' had been; tried, and was taken under advisement by the court. The libelant claimed-with reasonable assurance, certainly-that he was entitled to recover a certain amount from the respondent. The interest assigned was certainly not, therefore, so vague and mythical as to be wholly insufficient to support an assignment; I therefore think that the assignees, Messrs. Goulder and Thomson, having shown an assignment long prior to that of the judgment secured by, the interveners, have the first lien upon the funds in the registry of the (:lmrt, in this case. This is sufficient to dispose of this cOntroversy.
THE MINmE ·SMITH.
Counsel for tlle interyenersare very anxious that the court should dispose of the question of their right to intervene as judgment creditors against the fund in this case. This is a very interesting question, and, if the court had more time at its disposal, I would be glad to consider and decide fully this question; but it is well enough to call attention to a few generalprihciples which may throw some light upon this question. In the Lottawanna Ca,se, 20 Wall. 201, the supreme court of the United States held:
"Beyond doubt, maritime liens upon the property sold by the order of the admiralty court follow the proceeds; but the proceeds arising from such a sale, if the title of the owner is unincumbered, and not subject to any maritime lien of any kind, belong to the owner, as the admrralty courts are not courts of bankruptcy or of insolvency, nor are they investedwi1Jb. any jurisdiction to distribute such property of the owner, any more than any other property belonging to him, among his creditors. Such proceeds, if' unaffected by any claims upon the fund are discharged, become, by operatIon lien, when of law, the absolute property of the owner."
The. consideration for the judgment which the interveners set up in this case is not disclosed in their petition, but I assume that it was not a maritime lien, or it would have been so averred. It is not even, I assume, a claim against the respondent, which was recognized as a lien under the laws of Ohio, and which this court might enforce in a proceeding in admiralty; otherwise, that would have been so averred. I assume, therefore, that it is a judgment against the libelant, which is justly due, and purely a proceeding in personam. The most that this court could do, under such conditions, would be to hold the fund here, and distribute the same according to the priority of the' liens, as might be established by proof. It certainly would not transfer this fund to another court, to be, there distributed as an insolvent or trust fund. As before stated, and for the reasons stated, I do not propose now to determine finally whether the interveners have such a lien as would entitle them to ask for any part of the proceeds in the registry of the court in this case. In view of the principles established by the supreme court in the Lottawanna Case, the claims against the libelant, set up in the intervening petition, not being maritime liens, and the proceedings being purely in personam, it is questionable whether counsel for the interveners has brought himself in such a relation to the fund in this case as would authorize this court to pay over any part of the same to said 'interveners, against the protest of the libelant. The court can marshal the fund in the registry only between lienholders and owners. The Edith, 94 U. S. 519.
THE MINNIE SMITH. QUEBEC STEAMSIDP CO. v. THE MINNIE SMITH. (CIrcuit Court of Appeals, Second Circuit. August 1, 1893.) The steamer C.. on a course S. by E. on the open sea, sighted the schooner M., sailing on a course N. by W.% w. On behalf of the steamer,
AND SAIL-CONFLICTING EVIDENCE.