1859. November 3. repaired, and a bond (bond No. 3) for 2617. 1s. also on ship and Bond No. 1 (action against proceeds and freight) . £387 12 11 261 1 0 December 2. Judgment. Twiss, Q.C., on behalf of the holders of bond No. 3, now moved the Court to order the bond to be paid out of the proceeds of the ship and freight lying in the registry. Wambey, on behalf of the holders of bond No. 1, contrà.—If this motion is granted, the holders of the first bond will be altogether unpaid. The holders of the last bond have two funds to resort to, the holders of the first bond but one; the principle, therefore, of equitable marshalling of assets is applicable: Lanoy v. Duke of Athol (a); Aldrich v. Cooper (b); Dowthorpe (c); Constancia (d); Trident (e). The Queen's Advocate, for the owners of cargo.-As to bonds Nos. 2 and 3, the ship and freight must be exhausted before the cargo is touched: Prince Regent, reported in the Dowthorpe (ƒ). As to bond No. 1, it was executed before the cargo was put on board, without the consent or knowledge of the owners of the cargo, and they never had any interest in that bond at all. DR. LUSHINGTON :-In this case there are three bonds in all pronounced for, and the balance of proceeds in the registry is clearly insufficient to discharge them all. The last bottomry bond, called bond No. 3, is dated the 13th January, 1859, at Hernopolis, in Syra. It states that the vessel was bound from Odessa to London with peas, and had been compelled to put into Syra. The ship and cargo are hypothecated, and the principal and interest now due upon the bond amount to 2617. 4s. It is admitted on all hands that this bond shall be paid first. The question is, out of what fund-the ship and freight, or the cargo. The bond next antecedent in date, called bond No. 2, was granted at Odessa on the 11th December, 1858, and purports to bind the ship and cargo. It appears that the ship had previously sailed from Odessa with her cargo, but had been compelled by stress of weather to put back. The principal and interest due upon this bond amount to 1201. The next antecedent, or first bond, (bond No. 1,) is dated Constantinople, the 12th October, 1858. This bond is upon the ship and freight, and is for a voyage from Constantinople to Odessa and England, the amount 5007., with 22 per cent. interest. The vessel was lying at Constantinople under charter for Odessa and England, and having been damaged by collision with the African was bottomried to repair damages. On arrival of the ship in London, the damages recovered for the collision, amounting to 2221. 7s. 1d., were assigned to the bondholder in part liquidation of his claim. A motion is now made on behalf of the holder of bond No. 3, to be paid out of ship and freight. This is opposed on behalf of the holder of bond No. 1, who says that bond No. 3 should be paid out of cargo; and the motion is in turn supported by the owners of the cargo, who are clearly the parties really interested. The demands are, in round numbers, for the three bonds, 7681. The fund available from the proceeds of the ship and freight is 4107. The deficiency, therefore, if the cargo is not made at all liable, will be 3581. The sum due on the last bond (bond No. 3) is 2617. Assuming that it is paid out of the ship and freight, there will remain out of the ship and freight 1497. applicable to the discharge of bond No. 2. Bond No. 2 is for 1201., and therefore, for bond No. 1, there will remain only 297.; in fact, nothing at all, for the costs will have amounted to a very much larger sum than that small balance: bond No. 1 will be unpaid. The effect then of granting this motion, if a similar course is 1859. December 2. 1859. December 2. taken with bond No. 2, will therefore be that nothing will be left for the satisfaction of bond No. 1, and that the cargo will be Question to be wholly exonerated from any payment to any of the bonds. The substantial question, then, is, whether the cargo ought not to be made to discharge the two last-executed bonds, so as to leave a fund for the payment of the first-executed bond. decided. to considered. Now the cargo was not laden until November, 1858, after the execution of the first-executed bond, and previous to the other two. This circumstance would be perfectly fatal to the holders of bond No. 1 asking to be paid out of the cargo, which was not hypothecated to them; but they make no such demand; they only ask that the cargo shall be made applicable to the payment of bond No. 3, which does bind the cargo as well as the ship. Several cases were cited in argument, to which I Cases referred will now shortly advert. The first is the Dowthorpe (a). That was a most complicated case, raising many questions, and some of them of difficulty; but upon a consideration of all that is reported, it does not appear to me to have any stringent bearing on the present question. The dispute there was as to the payment of a bottomry bond on ship and freight, and certain other charges, as wages and pilotage; there was no reference whatever to any demands which could affect the cargo. The case is only useful for the present purpose as containing a report of the Prince Regent (b). The case of the Constancia (c) was also a most peculiar one. There were three bonds: first, on ship alone; second, on cargo alone; third, on ship alone. The case was brought on by motion only. The decision in that case cannot affect the present. If there were doubtful questions, they were whether the Court was right in giving preference to the first bond over the second, because the ship was not mentioned in the second bond; and whether the Court was right in holding the ship and freight tacitly hypothecated in the second bond: both very difficult questions, but not hujus loci. I see no reason to depart from what I said in that case, but I cannot apply it to the present. The Trident (d) was also cited. The main question in that case was wholly different from the present; it was whether a bond granted at Plymouth on a vessel belonging to an owner resident in Scotland was valid; but certain observations incidentally falling from the Court are reported at page 35, which have a bearing upon the present question. These observations did not apply to the main question, but had reference to an argument that other bonds might be prejudiced. It may be that in declaring the general principle by which the Court would be guided, namely, that of marshalling the assets where I could lawfully do so, I illustrated my opinion without sufficient accuracy. 1859. December 2. of assets to I did not bear in mind the case of the Prince Regent. I am of Marshalling opinion that the principle of marshalling the assets ought to pre- prevail genevail in this Court whenever it can be carried into effect without rally; violating other rules entitled to preferential observance. But the question now before me is, whether the present case fails within this principle, and the Court ought to compel the holders of the last bond to resort to the cargo. If the holders of the last bond, which is upon ship and cargo, have the same and equal right to proceed against the cargo as against the ship and freight, I should be disposed to hold that in equity they should be compelled to proceed against both, and in aid of the other bonds to resort, in the first instance, to the cargo. But I apprehend that, upon the authority of the Prince Regent, and the reasoning of Lord Stowell's judgment in the Gratitudine (a), the holders of the last bond have no such right against the cargo; they cannot make the cargo answerable until the ship and freight have been exhausted. The owners of the cargo have a perfect but cargo canright to avail themselves of the principle of that decision. They till ship and have a right to say that by law the cargo, though legally hypothe- freight are excated, cannot be touched till the ship and freight have been exhausted. They are strangers to all previous bonds on ship and freight. The result is, that the holders of the last bond, who are entitled to be paid in priority, are thrown on ship and freight exclusively. This motion must be granted (b). Stokes and Clarkson, proctors for the several bondholders. Pritchard for the owners of (a) 3 C. R. 255. (b) A point not observed in this case, is whether the last bond is intitled to absolute priority over bonds earlier in date. For if not, and only intitled to priority, when, if postponed, it could not be satisfied, the last bond in the present cargo. case had no good claim of priority; and not be touched hausted. 1860. January 12. THE IDA. Jurisdiction--Damage-Foreign River-Actio in Rem- Substantive objections to the jurisdiction entertained after absolute appearance. The Court will not exercise jurisdiction over a foreign river, if the parties are foreigners, and the subject matter of the action is of doubtful cognizance by the Court. The Court has jurisdiction over causes of collision, but not over damage generally. Quære. Whether in an action brought in the Admiralty Court here by a foreign plaintiff against a foreign defendant, in respect of a matter occurring in foreign waters, the defendant is liable for the wilful act of his servant. The master of a Danish schooner lying alongside the quay at the port of Ibraila in the Danube, got on board an English barque lying outside him, and with a view to get the schooner out, wilfully cut the barque adrift from her moorings, whereby she swung to the stream, and capsized a barge which contained part of her cargo belonging to Turkish owners. Held, that the Turkish owners of the cargo destroyed could not sue the Danish schooner in the Court of Admiralty. COLL OLLISION. This was an action brought by Messrs. Argenti, of Galatz, in the kingdom of Turkey, merchants, the owners of a portion of the cargo lately laden on board the English barque the Barbara Innes, against the schooner Ida and her owners, Messrs. Backhaus, of Blankenese, in Denmark, intervening. The defendants appeared absolutely. The act on petition stated: "That on the 16th of May, 1859, the barque Barbara Innes was lying at anchor at a place of discharge in the port of Ibraila, in the kingdom of Turkey. That on the said day the barque was hauled out to her anchor to let out other vessels which were inside or nearer to the quay than the said barque, and which had discharged their cargoes. That while the said barque was so hauled out, the Danish schooner the Ida, slipped inside of the said barque, and thereby deprived her of her discharging place. That the said schooner Ida remained inside the said barque, discharging her cargo till the 19th of the said month of May, when, having completed her discharge of the same, the said D. J. Backhaus, the master and part-owner of the said schooner, wanted to get out, and applied to the master of the said barque to cast off his moorings in order to enable her so to do. That the said barque was at this time discharging her cargo into a barge or lighter alongside, and could not without great difficulty and loss of time have complied with such application, |