SIMPSON V.110 STICKS OF HEWN TIMBER.
exorbitant, but the difficulty is that no testimony has been produced to support such a contention. All the testimony upon the subject is to the effect that the charges are not exorbitant, and I have been unable to see why I should be asked to cut down these charges when the only witness called upon the subject proves them correct. Accordingly, my conclnsion is that the libellants Johnson & Higgins.are entitled to a decree against the Phrenix Insurance Company for the proportionate share of the expenses stated in the' adjustment attaching to the goods received by the Phrenix Insurance Company, as those expenses are apportioned by the adjustment, deducting of course the salvage and the commissions paid for collecting and paying the same. n any other directions are required to conform to this opinion, they may be called to my attention on the settlement of the decree, at which time the amount to be inserted in the decree can,no doubt, be ascertained by agreement of the parties_ withoutthe expenses of a reference.
ONE HUNDRED UD TEN STICKS OP HEWN: TIMBER.
(Diltrid Court, E. D. New York. April 25, 1881.)
1. FREIGHT-TENnER OP CARGO-PREMATURE ACTION-CoSTIl-JUSTIFICATION OF SURETIEIl-SEARCHING TITLES,
In an action against cargo to recover freight, where the libel· was tiled before all the cargo had been landed, and the evidence showed that there was no ability to pay the freight and demurrage, and in fact no intentio:ll to pay the same on the part of the charterer: Held, that the action was not prematurely brought,and the ship was entitled 16 a decree for the freight, . . The case of 1,265 V!'trifted Pipqs, 14 BIatchf. 274, distinguished. Upon taxation of costs, disQursements made by tha libellant for searching titles of suretiell offered qn a stipulation, expensl1S of real estate brokers called in· to apprl\ise property, and notary's fees in taking depositions of sureties, allowed as proper items of a bill of costs, but not telegrams and postage to secure attendance of attor-
neys upon the examination of claimant's witnesses in Georgia, it appearing that a persistent attempt had been made to defraud the court, and obtain the discharge of the cargo from custody upon worth. less security.
In Admiralty. Hill, Wing <t Shoudy, for libellant. H. F. Averill, for claimants. BENEDICT, D. J. It is useless in this case to determine whether the ship-owner is entitled, under the charter-party, to any greater sum than the $4,750 named in the bill of lad. ing as the amount of freight and demurrage, for the reason that the amount named in the bill of lading is greater than the proceeds of the property in the registry. The only point requilring is' ,whether the action must be dismissed as prematurely brought·.. The libel was filed on the t'Wenty-fou;rth; day of May. lS80,and, as by the marshal's return, the lumberiwas.lei.zed by, him on that day byV'irtueof process issued ,in this 'acti.en. When the cargo was so seized the vessel was lying at a wharf designated by the charterers" a¥d a portion of the cargo had been discharged upon that wharf. The point made by the claimant is that in order to maintain the action the cargo must be shown to from thb've\l!?el and a tender of it thereatfter ;'ful8.de upon payment of the amount due. But, if such be conceded to be the general rule, it is not without exceptions. Here an exception 'is created by the facts proved, which, taken together, show than the charterers had no money to pay either freight· or 'demurrage, and their action was such as' to warrant the ship-owner in concluding that a tender of the cargo would have been a vain formality. There was in fact no readiness on the part of the charterers to pay either freight or demurrage, ,and the ship. owner had reason to suppose that there was no intention to pay either freight or demurrage. Under the circumstances, therefore, the acts of the charterers must be deemed a waiver of any tender of the cargo, and the suit, which, it must be reo membered, was in fact for demurrage' to the amount of
SIMPSON V.· 110 STIOKS OF HEWN TIMBER.
$1,250 that was already due by the terms of the charter, and by the charter made a lien upon the cargo, must be held to be properly brought. I do not see that the fact that another suit had been instituted by the ship-owner to recover his freight and demurrage, which suit was discontinued the 24th, prior to the filing of the libel in this case, is of any importance. It appears that the cargo was not seized in the first suit until the vessel was at the berth designated by the charterer, ready to discharge the cargo, and when it was apparent that the charterer was unable to pay either freight or demurrage; and it is obvious that it was known to the charterers that'the suit would' be no obstacle to the delivery of the cargo, provided they were ready to payor secure the amount due. This case differfJ'in a lllaterial point from the' case of 1,265 VitrijiedPipes, 14 Blatehf. 274, relied on by thecillimants; because iilthat case there' was what in this case therci was noj;;.......a readihe!ls and pres'ent ability to pay the freight. In that crase it was plain that if the cargo had been tehdl'fred' the freight would have been paid and the cargo Here it is plain that if the cargo had been tendetM, the freight 'wduld not' have been 'paid;' arid the consigtu:leivasso" informed by theacbfof' the parties done priot to the iil.stitu·' tion of this suit. The libellant is entitled to be decreed to have'ii lien the cargo proceeded against for the sum of $4, 750, with in:; terest, and to an order applying the proceeds of the in the registry to the payment of the amount.
Subsequently, on an appeal from the clerk's taxation of the bill of coste in the above action, the following opinion was rendered:
BENEDICT, D. J. In this case the claimants applied for a delivery of the property proceeded against, upon a stipula-
tion for value, and tendered four sureties in succeSSIOn. Each surety in the first instance justified 8S sufficient, but on examination proved to be worthless and was rejected. There was, in fact, a bold and persistent attempt on the part of the claimants to obtain possession of property in the custody of the court by substituting therefor a worthless stipulation. The examinations made necessary in order to defeat this attempt involved a very considerable outlay in the way of fees paid for searching for judgments and conveyances of real estate which the proposed sureties claimed to own; and the question is whether these expenses can be taxed in the costs. In a case like this, where there was good ground to believe that a fraud upon the court was being attempted, I -think the expenditure for searches was justified, and should be taxed as part of the costs. So, also, I think it proper to allow the $50 dollars paid real estate brokers to examine real estate claimed to be of value, but found to be of little value, in order to enable the court to be informed in respect thereto. Expenses incurred under a lawful order of court may be taxed as part of the costs, and inserted as part of the judg. ment against the losing party, (Neffv. Pennoyer, 3 Sawy. 336,) and, upon the same principle, expenses made necessary in order to defeat an attempt to defraud the court may be taxed and allowed. Upon the presentation of the first surety, in view of what then appeared, the court, if applied to, 'would have in the first instance dh'ecteq that searches be made, not only as against that surety, but also against any others that might subsequently be offered by these claimants. The notary's expenses of taking the voluminous examinations of the several sureties may also be allowed. The expenses of telegraphing to attorneys in Georgia to attend at the examination of witnesses there are not allowed.
THE PRIDE OF 'l'HE OCEAN.
THE -PRIDE OF THE OCEAN.
(District Court, E. D. New York. March 16,1881.)
WAGES-MASTER OF FOREIGN VESSEL-PRIORITY Oil' PAYMENT.
Where a British vessel was libelled for damagE:!! caused by a collision at sea, and was found in fault, condemned, and sold, and the vessel was also libelled by the master to recover his wages and disbursements: Held, that if, by virtue of the English statute, the master is entitled to a lien upon the ship, his claim is not entitled to a priority of payment out of the proceeds in the registry over those for the damages caused by the collision.
In Admiralty. W. W. Goodrich, for petitioner. BENEDICT, D. J. The ship Pride of the Ocean was proceeded against in this court to recover damages caused by a collision. The decision of the court was that the collision was caused by the negligence of those in charge of the ship, and the ship was accordingly condemned. The proceeds of her sale proved insufficient to pay the damages caused, by the collision. The master of the ship, who was on board and in command at the time of the collision, now applies to be paid the amount of his wages and disbursements out of the proceeds of the ship, in preference to the claims for damages caused by the collision. ABSuming that the master acquired a lien upon the .ShIp for his wages and disbursements by virtue of the British statute, and assuming that he did not lose his lien by omit· ting to enforce his claim until after the decree had been entered folthe damages caused by the collision, and by giving notice at the Bale by the marshal that he insisted that she was sold subject to his claim for wages and disbusements, and would be held liable therefor, still, it is impossible to say that, in the distribution of the proceeds of the ship, the master's claim is entitled to preference over that for the damages caused by the collision, for the reason that, having been the master of the ship at the time ,df the collision, he is. personally .Hable fodhe damages caused by the collision; and all