Gambar halaman


(2-7] The relationship between parties en- from tenancies in common, agency agree gaged in the common ownership and opera- ments and hiring contracts." tion of mining property is somewhat sui generis. Where there is merely a common 1 Kimberly V. Arms, 129 U. S. 512, 9 S. Ct. ownership and no joint development, the 355, 32 L. Ed. 764; Bissell v. Foss, 114 U, S. relation is, ordinarily, a tenancy in common.

252, 5 S. Ct. 851, 29 L. Ed. 126; Kahn v.

Central Smelting Co., 102 U. S. 641, 26 L. Ed. Where they join their efforts or means or 266; Taylor v. Salt Creek Consol. Oil Co., 285 property in the development of mining prop- F. 532 (C. C. A. 8th Cir.); Lesamis v. Greenerty they constitute a “mining partnership.” berg, 225 F. 449, 140 C. C. A. 481 (9th Cir.); The use of the term “partnership” in this 74 (9th Cir.); Shea v. Nilima, 133 F. 209, 66

Greenberg v. Lesamis, 203 F. 678, 122 C. C. A. connection is by analogy and is not to be C. C. A. 263 (9th Cir.); G. V. B. Min. Co. v. taken as meaning, in all legal respects, the First Nat. Bank, 95 F. 35, 35 C. C. A. 510 (9th same as an ordinary business or trading part- Cir.); Thomas v. Hurst, 73 F. 372 (C. C. D.

Mo.); Santa Clara Min. Ass'n v. Quicksilver Min. nership. Such a partnership has many of Co., 17 F. 657, 659 (C. C. D. Cal.); Johnstone v. the attributes and limitations of an ordinary Robinson, 16 F. 903, 905 (C. C. D. Colo.); partnership but not all such.

There are

First Nat. Bank v. Bissell, 4 F. 694 (C. C. some cardinal differences. Probably, the Di Colo.); In re Gladough, 1 Alaska, 649; main differences are that the death or bank- Gates, 2 Alaska, 519; Elliott v. Elliott, 3

McMahon v. Meehan, 2 Alaska, 278; Marks v. ruptcy of one such partner does not termi- Alaska, 352; McNamee v. Williams, 3 Alaska, nate the partnership and that one partner 470; Bell v. Wright, 25 Ariz. 97, 213 P. 575; may convey his interest, or any part thereof, Stone v. Riggs, 163 Ark. 211, 259 S. W. 412;

Waring v. Crow, 11 Cal. 366; Gore v. McBray. without the consent of his associates and

er, 18 Cal. 582; Skillman V. Lachman, 23 without terminating the partnership and the Cal. 198, 83 Am. Dec. 96; Henderson v. Allen, transferee thereof becomes a partner, to the 23 Cal. 519; Duryea v. Burt, 28 Cal. 569 (a extent of the interest transferred, from the leading case); Dougherty v. Creary, 30 Cal. 290, effective date thereof. Mining partnerships Cal. 490; Patterson v. Keystone Min. Co., 30

89 Am. Dec. 116; Settembre v.. Putnam, 30 are held, generally, to be applicable to devel- Cal. 360; Jones v. Clark, 42 Cal. 180; Taylor v. opment of oil and gas properties-- Pennsyl- Castle, 42 Cal. 367; Decker v. Howell, 42 Cal. vania being the exception. Such relationship stern v. Thrift, 66 Cal. 577, 6 P. 689; Stuart

636; Nisbet v. Nash, 52 Cal. 540; Morgan. in this regard is recognized in Oklahoma.

V. Adams, 89 Cal. 367, 26 P. 970; Chung Kee Where a mining partnership exists, each v. Davidson, 102 Cal. 188, 36 P. 519; Berry partner is liable to the others for his share v. Woodburn, 107 Cal. 504, 40 P. 802; Del. (depending upon his interest) of the ex

la piazza v. Foley, 112 Cal. 380, 44 P. 727;

Dorsey y. Newcomer, 121 Cal. 213, 53 P. 557; penses and losses incurred in the enterprise Ferris v. Baker, 127 Cal. 520, 59 P. 937; and there is a lien for such upon his interest Prince v. Lamb, 128 Cal. 120, 60 P. 689; Froin the property or proceeds therefrom in wenfeld v. Hastings, 134 Cal. 128, 66 P. 178: favor of creditors or of other partners who Harper v. Sloan, 177 Cal. 174, 169 P. 1043, 181

P. 775; Lawrence v. Robinson, 4 Colo. 567; have made advances. Such a partnership Charles v. Eshleman, 5 Colo. 107; Manville may result from express contract or be im- V. Parks, 7 Colo. 128, 2 P. 212; Higgins v. plied by the conduct of the parties in joining Armstrong, 9 Colo. 38, 10 P. 232; Jennings v. in mining operation on a profit and loss shar

Rickard, 10 Colo. 395, 15 P. 677; Meagher v.

Reed, 14 Colo. 335, 24 P. 681, 9 L. R. A. 455; ing basis or in jointly acquiring mining prop- Slater v. Haas, 15 Colo. 574, 25 P. 1089, 22 erty for the purpose of joint development Am. St. Rep. 440; Hurd v. Tomkins, 17 Colo. and afterwards prosecuting such develop- 394, 30 P. 247; Butler, v. Hinckley, 17 Colo. ment or where persons owning a min^en

523, 30 P. 250; Patrick v. Weston, 22 Colo.

45, 43 P. 446; C. D. M. I. Co. v. Bliley, 23 Colo. gage in working it for the purpose of ex- 160, 46 P. 633; Hodgson v. Fowler, 24 Colo. tracting the minerals. Where a mining part- 278, 50 P. 1034; Taylor v. Thomas, 31 Colo. nership is in existence, the purchase of an in- 15, 71 P. 381; Milliken v. Fredrickson, 73 Colo.

534, 216 P. 714; McLaughlin v. Thompson, terest of a partner or the purchase of an in- 2 Colo. App. 135,'29 P. 816; Perkins v. Peterterest of a partner in the lease being mined son, 2 Colo. App. 242, 29 P. 1135; Ashenfelter makes the purchaser a partner. The power

v. Williams, 7 Colo. App. 332, 43 P. 604; of one such partner to bind the others is Caley v. Coggswell, 12 Colo. App. 394, 55 P.

939; Lyman v. Schwartz, 13 Colo. App. 318, strictly limited to acts having a direct con

57 P. 735; Lamont V. Reynolds, 26 Colo. nection with the development of the min. App. 347, 144 P. 1131; Hawkins v. S. H. Min. ing venture which is the subject of the part Co., 3 Idaho (Hasb.) 241, 28 P. 433; Haskins v. nership. In the footnote are collected nu

Curran, 4 Idaho, 573, 43 P. 559; Brown v.

Bryan, 5 Idaho, 145, 51 P. 995; Hand v. Allen, merous cases supporting the above rules and, 291 11. 35, 128 N. E. 305; Huston v. Cox, also, distinguishing mining partnerships 103 Kan. 73, 172 P. 992; Judge v. Braswell, 13


10 F.(2d) 9 [8] There is nothing in the nature of a cor- partner does not terminate the partnership porate organization, as such, which would and that such doctrine is founded on the prevent it from being a member of a min- necessity of the case to prevent interference ing partnership or in a joint adventure of with mining development once begun, we that character. Its power in that respect think it would be an unfortunate restraint, would depend upon its character or organic both upon the liberty of the partner to dislaw. 14a C. J. 291. There is no statute in pose of his interest and upon the developOklahoma containing such a prohibition and ment of mines, if corporations (having minit seems conceded that the Levant Oil Com- ing powers) could not acquire such interests pany was, by its charter, empowered to and join in such character of development. develop oil and gas lands. While this par- [9] The evidence shows beyond dispute the ticular matter is not determined directly in following facts concerning the lease and opany case of mining partnership brought to eration of these tracts of 40 and of 20 acres. our attention, yet there are cases of mining J. H. Dillard and wife gave F. L. Ketch an partnerships wherein corporations were part- oil and gas lease on 190 acres, in 1916. The

Kahn v. Smelting Co., 102 U. S. 641, rights, under this lease, in all except 80 acres, 26 L. Ed. 266; C. D. M. I. Co. v. Bliley, 23 were disposed of by Ketch. The Dillard Colo. 160, 46 P. 683; Hawkins v. Spokane lease was a development lease requiring minHydr. Min. Co., 3 Idaho (Hasb.) 241, 28 P. ing for oil and gas. In 1917, Ketch assigned 433; Lind v. Webber, 36 Nev. 623, 134 P. an undivided half interest in the 80 acres to 461, 141 P. 458, 50 L. R. A. (N. S.) 1046, Wallace. Thereafter, 20 acres out of the Ann. Cas. 1916A, 1202; Kennedy v. Beets 80 acres were disposed of, leaving the 60 Oil Co., 105 Okl. 1, 231 P. 508; and see acres involved in this action. Thereafter, an Anaconda Copper Min. Co. v. B. & B. Min. undivided interest in 40 acres was assigned Co., 17 Mont. 519, 43 P. 924, and Horton v. to Geo. S. Bole who transferred his assignNew Pass G. & S. Min. Co., 21 Nev. 184, 27 ment to the Skelly Oil Company. This asP. 376, 1018, which were cases where corpo- signment provided for the active developrations were sought to be held as partners ment of the property and a sharing of exbut the court found, on the facts, that no such penses and profits. The Skelly Oil Comrelation existed. When it is considered that pany proceeded to develop the 40-acre tract, the transference of an interest of one mining while Ketch and Wallace did the same on the


[ocr errors]

Bush. (Ky.) 67, 26 Am. Rep. 185; Hamman v. Wally, 269 Pa. 5, 112 A. 105; Southern 0. v. Emerson, 135 LA. 629, 65 So. 765; Phillips & G. Co. v. Mexia, O. & G. Co. (Tex. Civ. v. Jones, 20 Mo. 67; Snyder v. Burnham, 77 App.) 186 S. W. 446; Roberts v. McKinney Mo. 52; Mackie-Clemens Fuel Co. v. Brady, (Tex. Civ. App.) 187 S. W. 976; Davis v. 202 Mo. App. 551, 208 S. W. 151; Freeman v. Hudgins (Tex. Civ. App.) 225 S. W. 73; HumHemenway, 75 Mo. App. 611; Dale v. Golden- ble O. & R. Co. v. Strauss (Tex. Civ. App.) rod Min. Co., 110 Mo. App. 317, 85 S. W. 929; 243 S. W. 528; Sims v. Humble 0. & R. Co. Nolan v. Lovelock, 1 Mont. 224; Boucher v. (Tex. Civ. App.) 252 S. W. 1083; Connellee Mulverbill, 1 Mont. 306; Southmayd v. South- v. Nees (Tex. Civ. App.) 254 S. W, 625; Indiamayd, 4 Mont. 100, 5 P. 318; Galigher v. Lock- homa Refin. Co. v. Wood (Tex. Civ. App.) 255 hart, 11 Mont. 109, 27 P. 446; Harris v. Lloyd, S. W. 212; Mayfield v. Key (Tex. Civ. App.) 11 Mont. 390, 28 P. 736, 28 Am. St. Rep. 475; 260 S. W. 926; Adams v. Texhoma O. & R. Anaconda Copper Min. Co. v. Butte & Boston Co. (Tex. Civ. App.) 262 S. W. 139; Graham Min. Co., 17 Mont. 519, 43 P. 924; Congdon v. Pierce, 19 Grat. (Va.) 28, 100 Am. Dec. v. Olds, 18 Mont. 487, 46 P. 261; Horton v. 658; Lamar v. Hale, 79 Va. 147; Williamson N. P. Gold & Silver Min. Co., 21 Nev, 184, v. Jones, 43 W. Va. 562, 27 S. E. 411, 38 L. 27 P. 376 and 1018; McKenzie v. Coslett, 28 R. A. 694, 64 Am. St. Rep. 891; Childers v. Nev, 65, 78 P. 976; Lind v. Webber, 36 Nev. Neely, 47 W. Va. 70, 34 S. E. 828, 49 L. R. A. 623, 134 P. 461, 135 P. 139, 141 P. 458, 50 L. 468, 81 Am. St. Rep. 777; Blackmarr v. WilR. A. (N. S.) 1046, Ann. Cas. 1916A, 1202; liamson, 57 W. Va. 249, 50 S. E. 254, 4 Ann. Dailey v. Fitzgerald, 17 N. M. 137, 125 P. 625, Cas. 265; Kirchner v. Smith, 61 W. Va. 434, Ann. Cas. 1914D, 1187; Ervin v. Masterman, 58 S. E. 614, 11 Ann. Cas. 870; Wetzel v. 8 Ohio Cir. Dec. 516; Gillespie v. Shufflin, 91 Jones, 75 W. Va. 271, 84 S. E. 951; Hartney Okl. 72, 216 P. 132; Wells v. Shriver, 81 Okl. v. Gosling, 10 Wyo. 346, 68 P. 1118, 98 Am. St. 108, 197 P. 460, 483; Barrett v. Buchanan, 95 Rep. 1005; Crawshay v. Maule, 1 Swanst. 518; Okl. 262, 213 P. 734; Kennedy v. Beets Oil Fereday v. Wigthwick, 1 Russ. & Myl. 45; Co., 105 Okl. 1, 231 P. 508; Watterson v. Reyn- Jefferys v. Smith, 17 Eng. Rul. Cas. 833; Marolds, 95 Pa. 474, 40 Am. Rep. 672; Fulmer's tin v. Porter, 17 Eng. Rul. Cas. 841; Norway Appeal, 128 Pa. 24, 18 A. 493, 15 Am. St. Rep. v. Rowe, 19 Eng. Rul. Cas. 557; Rule v. Jewell, 662; Huchinson y. Snider, 137 Pa. 1, 20 A. 510; 19 Eng. Rul. Cas. 561. Dunham v. Loverock, 158 Pa. 197, 27 A. 990, Also, see valuable discussion and notes in 38 Am. St. Rep. 838; Neill v. Shamburg, 158 27 Cyc. 755; 18 R. C. L. 1200; 28 Am. St. Rep. Pa. 263, 27 A. 992; B. S. Bank v. Osborne, 159 488; 83 Am. Dec. 104; 4 Ann. Cas. 267; 16 Pa. 10, 28 A. 163, 39 Am. St. Rep. 665; Taylor Ann. Cas. 304; Ann, Cas. 1914D, 1191; Ann. v. Fried, 161 Pa. 53, 28 A. 993; Laughner Cas. 1916A, 1210.

remaining 20-acre tract. Later, A. M. Ketch, the Levant Oil Company was in connection wife of F. L. Ketch, acquired a part of and, with operations after the filing of the bankthereafter, all of the interest of F. L. Ketch ruptcy petition against Wallace. Bankruptin these 60 acres. While she held these in- cy of a partner does not dissolve a mining terests, she made advances for Wallace in partnership. Bissell v. Foss, 114 U. S. 252, connection with development of the lease. 260, 5 S. Ct. 851, 29 L. Ed. 126; Kahn v. Thereafter, she sold her entire interest to Smelting Co., 102 U. S. 641, .646, 26 L. Ed. the Levant Oil Company which afterwards 266, and numerous other cases cited in the made advances for Wallace in connection foregoing footnote. There is no reason why with the further development of the lease. such bankruptcy should interfere with the It is these successive advances by Mrs. Ketch ordinary orderly prosecution of the business and by the Levant Oil Company which are of such partnership nor with the rights of involved here.

the partners inter sese as to the partnership [10] The above facts show a community of property. The bankruptcy court could deinterest and action in the development of the mand any profits due the bankrupt because entire 60 acres by Wallace with, successively, such would be his individual property and F. L. Ketch, then F. L. Ketch and Mrs. it could dispose of the interest of the bankKetch, then Mrs. Ketch and finally the Le- rupt; but it could not assume administravant Oil Company. They were to share ex- tion of the partnership business nor interpenditures and profits, in proportion to their fere therewith except to protect the indirespective interests, from such mining opera- vidual rights of the bankrupt therein. Even tions. This gave rise, under the above rules in an ordinary business or trading partnerof law, to a mining partnership which, al- ship, a bankruptcy court cannot, without conthough its membership changed, never ceased sent of the solvent partners, administer on to exist. Such relationship gave each of partnership assets or interfere with the partthe partners a right of lien upon the part- nership affairs where the partnership is not nership interests of the others for any ad- in bankruptcy but only a single partner. vancements made on account of the common

Collier on Bankruptcy (13th Ed.) 233-236, venture. We think that this lien attached and copious notes thereto. The trustee had to such partnership interests in the entire no legal right, in the beginning, to take con60 acres—the entire partnership property, trol of this purely partnership property. and the circumstance that an advancement His right was to protect and secure (for the was made in connection with the development creditors of the bankrupt) the individual of a particular part of the entire tract, when property or proceeds due the bankrupt from all was being developed, would not confine the partnership. But since he has assumed the lien to such part. When Mrs. Ketch and, such control and the other partners, by aplater, the Levant Oil Company came into the pearing and asking relief herein, have conventure there was an existing mining part- sented to such jurisdiction and since such nership and it was an interest therein which jurisdiction can be exercised in a manner she purchased and passed on to the com

which will protect the rights of all parties pany. As said in Kennedy v. Beets Oil Co., and secure for the bankrupt estate any value, 105 Okl. 1, 4, 231 Pac. 508, 511: “When a

in the partnership property, belonging to the mining partnership is once created, it con

bankrupt, we see no reason why the court tinues and is not dissolved by the fact that should not act. However, such assumption one of the partners has disposed of his in- cannot operate to change the rights of the terest to some outside party. What the de- partners between themselves as to partnerfendants bought into when they acquired ship property. Therefore, either as an adfendants bought into when they acquired vancement to a partner or as a payment their interests in the lease in question was an undivided interest in a mining partner. made for the benefit of and to preserve the ship and thereby secured the rights and as

estate by one having a legal right to make sumed the obligations which the well-estab- such payment, the Levant Oil Company is lished rules governing such partnerships pro- entitled to payment for such advances made vide."

after bankruptcy and to its lien for such. Therefore, we conclude that Mrs. Ketch and the Levant Oil Company had a lien, for

III. the advances made by each respectively, [13] Concerning the marshaling of assets the against the entire interest of Wallace in appellant contends (a) that the burden of the 60 acres.

proof is on the receiver of the bank; (b) [11, 12] A portion of the advances made by that the partners should be confined to the


[ocr errors]

10 F.(2d) 16 20-acre tract; (c) that such marshaling would not survive a sale of the boat in adshould not apply to advancements after the miralty proceedings, where ample opportunity

had been given to join and prove claim, and mortgage was executed or (d) after the pe did not survive sale in equity in combined tition in bankruptcy was filed. We think foreclosure suit and creditors' bill. the receiver has sustained this burden. He has shown that the 20-acre tract cannot pay Appeal from the District Court of the these partnership advances and other liens United States for Eastern Division of the superior to his and leave enough to satisfy Northern District of Ohio; D. C. Westenhavhis lien; that his lien is confined to that er, Judge. tract; that the partners are not so confined Libel by the Niagara Laundry & Linen but have an adequate protection and a like Supply Company against the steamer Theoresort to the proceeds from the 40-acre tract dore Roosevelt, claimed by the. Cleveland(as discussed above under division II of Erieau Steamship Company, in which other this opinion). Therefore, he has sustained parties filed intervening libels, and answer his right to a marshaling of these liens and was filed by I. T. Kahn and another. From the assets covered by them.

a decree for libelant (291 F. 453), I. T. Kahn [14] As a member of a mining partnership and another appeal. Decree set aside, and may freely convey his interest without dis- petition dismissed. turbing such partnership, the lesser step of

Carl A. Schipfer, of Cleveland, Ohio incumbering such interest by a mortgage did (Kelley, David & Cottrell

, Hermon A. Kelnot affect the rights of the other partners to ley, and G. W. Cottrell, all of Cleveland, their lien nor the right of the mortgagee to Ohio, on the brief), for appellants. a marshaling of assets which would result in

Geo. B. Marty, Dorr E. Warner, and no harm to such partners. Besides, they are not here complaining of the action of the (Holding, Masten, Duncan & Leckie and

Theo. C. Robinson, all of Cleveland, Ohio court but are attempting to uphold it. It is John A. Cline, all of Cleveland, Ohio, on the difficult to see why the general creditors brief), for appellees. should be accorded an advantage over the lien creditors by preventing a marshaling of

Before DENISON, DONAHUE, and assets and liens on the ground that a lien(by KNAPPEN, Circuit Judges. mortgage) was given. What has been said above (division II of this opinion) answers

DENISON, Circuit Judge. The opinion the contention respecting marshaling of ad- dore Roosevelt, 291 F. 453, fully states the

of the District Judge, reported in The Theovances after filing the petition in bankruptcy. facts and the questions involved. They all The decree must be and is affirmed.

lead up to the controlling problem-a detercert. denira

mination of the character and effect of the 2710 674


, and as a new question; we find no helpful KAHN et al. V. NIAGARA LAUNDRY & LINEN SUPPLY CO. et al.


This bond is said to have been given “un(Circuit Court of Appeals, Sixth Circuit.

der favor" of the amendment of March 3, January 15, 1926.)

1899, to R. S. § 941 (Comp. St. § 1567). In No. 4210.

one respect it is not the statutory bond; the 1. Admiralty Cw57-Bond obligating payment

law contemplates and regulates a bond to seof libels arising before certain date held to

cure the claimants in all future suits brought contemplate usual procedure.

against a vessel; this present bond reaches Bond, given under Rev. St. $ 941, as only future suits, based on now existing amended by Act March 3, 1899 (Comp. St. § claims. At the same time, as far as it goes, 1567), obligating obligor to pay judgments on libels which had been or might be filed, held to

it takes its effect from the statute, and it secure only those claims which should be ma- must take its character and legal intent from terialized by suits brought in rem, while there the same source. We see no sufficient reason continued in existence a res subject to such why, in its present application, it should be suits.

given a construction different from what it 2. Admiralty am 57-Independent remedies un. would have had, if it had secured future der bond held not to survive sale in equity claims as well. Such a bond may be thought suit.

of either as in effect an obligation to pay, at Independent remedies of libelants on bond given under Rev. St. $ 941, as amended by all events, the debts falling within its scope, Act March 3, 1899 (Comp. St. § 1567), or instead as a bond of indemnity, placing


202Ed.v14sü Nup ft.45must be decided upon the principles involved,

[ocr errors]

the claimant in the position he would have tal claims from 49 per cent. to 51 per cent. of had if he might have arrested the ship, though the bond. The only procedural effect of the he did not. It is quite plain that in some bond—the stay of process—thereupon ceases. senses the bond is a substitute, not for the Further, the condition is to answer the decree vessel, but for the power to arrest. This con- in any case that may be brought "against flict of thought is made most concrete by sup- the said vessel.” It is not natural to think posing that the vessel, after giving the com- of any procedure in rem "against the vessel" plete statutory futurity bond, is completely after the vessel has disappeared from actual lost, after the future obligation accrued, but existence, as by sinking, or from the field of before any opportunity for actual arrest was legal liability, as by admiralty sale. The waived in reliance on the bond, and before statute further provides that "like remedies" the beginning of any suit against the vessel may be had as if the ordinary bond had been with notation on the bond as a substitute for filed pursuant to the ordinary libel. As has arrest. The District Judge assumed that the been pointed out, the customary remedy in remedy by suit against the bond would con- such a case involves a monition and the taktinue, although the ship was out of existence. ing of an account of all lien claimants in the

We do not see that it is necessary to de- same class—all as preliminary to a final decide this supposed concrete question; but we cree of sale. think the bond should be read as being con- The general principle of equity-and sistent with and as furnishing one means of likewise, we take it, of admiralty-that all carrying out common and familiar admiralty claims of one class should be treated alike principles and procedure, rather than as makes it imperative that there should be, unmarking à novel and distinct departure der such a bond, some proceeding where all therefrom. In 1899 it had long been the can come in and have their respective rights established admiralty practice that the first determined. The principle involved is no libel filed, and under which arrest was made, different when the bond is ample for all than became the principal case. Other lien claim- when it is insufficient; yet, in the latter case, ants who came along were, in effect, if not in individual recoveries, to the prejudice of unname, intervening libelants. The process is- known claimants, would not be approved in sued for them, to the marshal already in pos- equity. session of the vessel, was only noted by him. [1] Further, a study of the precise language A monition was issued and published, and of this bond confirms the conclusion that all lien claimants were invited to intervene there was no intent to substitute the bond and establish their demands. In due time for the ship in a permanent way. The fact lacking successful defense-a final decree was that the receiver, in possession of the was rendered for condemnation and sale, and ship on behaif of all creditors, was charterdistribution of the proceeds was made among ing the ship to be taken out of the district the lien claimants who had intervened; those and there operated by the charterer. The rewho had not done so lost their lien upon the ceiver was bound to protect the charterer ship, and had no recourse by way of any from seizure on the existing claims, or else lien, unless, under some circumstances, upon the charter could not be made. To avoid the surplus, if there was one. We cannot such interference, and to confine the litigadoubt that the common familiarity with pro- tion to the occupied forum, were the objects. ceedings of this character furnished the back- The bond recites that libels had been, and ground against which the new statute should from time to time may be, filed against the be seen.

Any other resulting situations- vessel in this district upon existing claims, that is, any situation in which, although the and that it is desired to avoid delay from ship was sold, there remained a liability on such seizures and indemnify the officers for the bond, to be enforced piecemeal by one not seizing "under said libels," and the perclaimant after another until the statute of tinent condition is that the obligor “pay such limitations should run-must, against this judgment as shall be awarded in any or every background, be so unnatural it should not be such proceeding or proceedings.” There is inferred, except from the clearest language thus direct reference to the pending proceedin the statute or bond.

ing, and we think the natural inference is We find no such clear language. On the that the usual procedure was contemplated, contrary, the theory that the bond is com- and that only those claims were to be secured pletely and permanently substituted for the which should be materialized by suits brought ship is inconsistent with the provision that in rem, while there continued in existence a the substitution ends whenever some subse- res subject to such suits. quent suit is commenced, which raises the to- [2] The theory that the bond is substituted

« SebelumnyaLanjutkan »