Page:Federal Reporter, 1st Series, Volume 3.djvu/254

EËASNKT V. A niiE-DRITES. 247 �Thk order was fouaded (m supplementary proceedings upon a judgment and execution obtained bj' one Nicholas B. Cufihing against John Keamey, and upon prima facie proof that the debt libelled was a debt due to John Keamey from the respondents. Neither of these reasons is sufificient to defeat the libellant in coUecting the sum due for the towage eervice, and there must be a decree in his favor for the amount of his claim. In admiralty costs ordinarily foUow the decree, unless the court, in the exercise of a sound discretion, per- ceives reasons for withholding them. Shonld they be with- held in this case ? The question has given me considerable embarrassaient and difficulty. It is true the libellant -was not a party to the proceedings in the state court, and hence he was not precluded, by anything in those proceedings, from enforcing his maritime lien in this court. But the respond- ents were estopped, by the order of the state court, from pay- ing the debt, either to John Keamey or to any other person, until it was otherwise ordered, and one of the respondents testifies that he informed the libellant of the injunction shortly after it was served upon him. It would, therefore, seem harsh and unjustifiable to hold them liable in costs for not doing what they were restrained from doing by a competent tribunal, and for which, if done, they would ex- pose themselves to pains and penalties for a contempt of the court. �If the libellant, before filing his libel, had obtained such a modification of the order in the state court that the matter of payment was left to the discretion and at the peril of the respondents — the only penalty being the risk of being called upon to make payment the second time — and they had re- fused to pay after that, a different question would be pre- sented, and I should not have hesitated to say that they must assume ail the consequences of their refusai. But he took no such step, nor attempted it. He filed his libel with the knowledge of the existing restraint upon the respondent, and I see no other way ot doing exact justice between thea» parties, except by withholding coBts upon the deeree. ����