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The Ship Mary.
their wages, which were earned on the voyage to New-Orleans, as for those which would have accrued afterwards, notwithstanding her intermediate alienation.
If this be so, it would not be easy to assign any good reason why, as they were regularly discharged at New-Orleans, they should lose their remedy against the ship merely because they did not arrest her in transitu, but waited patiently for her arrival at New-York.
If it be admitted that mariners may be guilty of such gross negligence in following up a claim of this nature, as to forfeit their remedy against a vessel in the hands of an innocent purchaser, it would be imposing on them a very unreasonable diligence to compel them in all cases, under the penalty of such a forfeiture to institute a proceeding in rem the moment their wages became due, or at any rate before the vessel left the port at which the voyage, as it respected them, was ended. It might be very inconvenient for them to remain in a foreign port until the termination of a suit in the admiralty; or, which would often be the case, they might find it very difficult in a strange place to procure that security or bail which is required on the institution of proceedings against a vessel—or they might be generous or liberal enough rather to forego for the moment their right of suit in this way, than to arrest for a small sum a valuable vessel at a distance from home, at the hazard of breaking up the remainder of her voyage, or of exposing her to be sold at a great sacrifice.
My opinion, upon the whole therefore, is, that the forbearance, or delay complained of in this case, furnishes no pretence for dismissing the present libel, or for deciding that the change of title which took place at New Orleans, is a bar to the libellants of the vessel for the wages claimed in this suit.
The sentence of the District Court is, therefore, affirmed, with costs.
United States v. John Mott.
THE UNITED STATES V. JOHN MOTT ET AL.
Under the 5th section of the act of the 3d of March, 1797, an assignment, to en
title the United States to their priority, must be an assignment of all the
debtor's property; but it need not be for the benefit of all his creditors. An assignment made by a deblor of the United States, when bis property was
about being levied upon, under judgments obtained against him by one of his creditors, in trust, first for the debt of such creditor, and then for the debt of the United States, was held to be a voluntary assignment, and fraudulent and void against the United States, notwithstanding the creditor gave up his intention of levying, in consideration of such assignment, and that the property might be sold under it to the best advantage, for the benefit of the sure
ties to the United States. And on a bill filed by the United states, to obtain their priority in such a case,
against the creditor and sureties, who were joint assignees of the debtor's estate, the Court refused to suspend its decree in favour of the United States, against the assigned property, until they should have proceeded to execution on their judgment against the sureties, or to make any deciee in favour of the creditor against the sureties, notwithstanding the assignment had been received by the creditor for their benefit, and at their request, and they, by
becoming parties to it, had covenanted for the execution of its trusts. Whether such relief would have been afforded the creditor if the sureties had
been properly before the Court for that purpose ? Quere.
This was a bill in equity, filed on behalf of the United States, under their priority acts, praying that certain property assigned by their debtor against whom they had obtained judgment, to two of the other defendants, might be subjected to the execution of the complainants, or that the assignees might pay over to them the proceeds of such property.
The bill stated, that on the 1st of January and 10th of April, 1815, and the 12th of January, 1816, Noel Blanche, to secure duties on distilled spirits, executed to the United States, his three several bonds for the penal sums of 15,000 dollars, 4503 dollars and sixty cents, and 4194 dollars and seventy two cents, with William Coulter and the defendant, Jeremiah Vanderbilt,
United States v. John Mott.
as his sureties, on which bonds judgments were recovered in 1819, at the May term of the District Court of the Southern District of New York, on which execution had been issued, and Blanche and Vanderbilt been taken-That these judgments were still unsatisfied.
That Coulter died before the recovery of said judgments, leaving the defendants, Casparus Prior and Josiah Hornblower, his executors.
The bill further stated, that Blanche, being insolvent, within the meaning of the act of Congress entitled “ an act to provide more effectually for the settlement of accounts between the United States and the receivers of public monies," passed March 3d, 1797, and the act entitled "an act to regulate the collection of duties on imports and tonnage," passed the 2d of March, 1799, made an assignment of all his property to the defendants, Vanderbilt, Coulter, and John Mott, but that the United States are, notwithstanding, entitled to a priority of payment under the said acts.
That the defendants, Mott and his copartner Richard S. Williams, and the defendants, Vanderbilt and Coulter, or some of them, had received sufficient property, under the said assignment, to satisfy the judgments of the United States, but refused so to apply it. That they had, on the contrary, applied it to the payment of debts due from Blanche to the said Mott and Williams. The bill also stated, that they had sold a part of the property to the defendants, Uriah R. Scribner and John Hitchcock, and prayed that they might be enjoined from paying, &c.
It was also stated, that Blanche and Vanderbilt had presented their petitions to the President and Secretary of State, and that their bodies had been discharged from execution.
All the facts stated in the bill were either admitted or proved.
United States v. John Mott.
Mott and Williams in their answers stated, that Blanche being indebted to them in the sum of 5,424 dollars, on the 3d of April, 1816, confessed judgments for that amount in NewYork and New-Jersey, which judgments were still unsatisfied.
They also stated that the assignment from Blanche, mentioned in the bill, was made in order to prevent their taking out execution upon the said judgments, against the property of Blanche, and thus forcing a sale of it at a great sacrifice; and that had they not expected to be made perfectly secure by the assignment, they should have proceeded, as they were prepared to do, to levy upon his property. They stated that this was the understanding of all the parties to the assignment, and the motive for making it. That it was expected at the time of its execution, that the property assigned would more than pay their debt, which was preferred, and would pay a portion of the deb due United States, which was next provided for; but that it was understood and agreed, that whatever might remain due to the United States, should be paid by Coulter and Vanderbilt, the sureties. And they insisted, that as this was the understanding of the sureties when they became parties to the assignment, the United States ought, in the first place, to exhaust their remedies against them, before they resorted to the assigned funds in the hands of Mott and Williams, who had been induced to relinquish their executions at the request and for the benefit of the sureties.
They further stated, that Coulter's estate in the hands of his executors, the defendants, Prior and Hornblower, was more than sufficient to pay the United States; and that the United States had obtained judgment against them, but that execution had been stayed at the request of the executors, and without their consent. That the bill of the United States in this suit had been filed at the request and for the benefit of the sureties.
Annexed to their answer was an account of the proceeds of
United States v. John Mott.
the property received by them under the assignment, with their disbursements, by which it appeared that they had not received enough to pay their own debt.
The assignment made by Blanche, after stating his indebtedness to Mott and Williams, and that Vanderbilt and Coulter had become his sureties to the United States, and that he was unable to satisfy these engagements, proceeded, in consideration of the premises, to assign to Mott, Coulter, and Vanderbilt, who also executed it, certain real estate and all the personal estate of the assignor in trust, first, to pay the debt of Mott and Williams; secondly, the debt due to the United States, so that the sureties should be completely indemnified and saved harmless; and lastly, the residue to be applied to pay certain other debts. There was a covenant, on the part of the assignees, faithfully to perform and execute these trusts, according to their true intent and meaning.
It appeared by the testimony of the defendant, Vanderbilt, who was examined as a witness, that at the time the assignment was executed, it was understood by the parties to it, that Mott and Williams were about levying on Blanche's property, and that the assignment was agreed upon as a substitute for that course, in order that Mott and Williams might be first paid, and as much be made out of the property as possible for the benefit of the sureties. Mott and Williams were sat fied with their judgments, and considered themselves perfectly secure, and the assignment was proposed by Vanderbilt himself, to prevent a sacrifice of the property, and agreed to by Mott and Williams, entirely for the benefit of the sureties. It was believed at the time that there would be enough to pay the debt of the United States as well as the debt of Mott and Williams.
The record of the judgments of the United States against Coulter's executors were produced in evidence, by which it appeared that the judgments were obtained by default.