Page:Federal Reporter, 1st Series, Volume 8.djvu/347

THE FBAIIK G. POWLEB. 333 �whieh the -warrants of arrest were served on the vessel. That learned judge appears to have based this decision, partly at least, on the nature of a maritime lien as defined by him. Thus, he saj's : �" The rneaning and efHcacy of a maritime lien is that it reiiders the property liable to the claim without a previous judgment, or decree of the court, se- questrating or condemning it, or establishing the demand as at common law, and the action in rem carries it into effect. Ingraham v. Phillips, 1 Day, 117 ; Barber v. Mintum, Id. 136. Thus the appropriation of the res to that end becomes absolute and exclusive, on suit brought, unless superseded by some pledge or lien of paramount order; and it accordingly results, f rom the nature of the right and the proceedings to enf orce it, that the first action which seizes the property is entitled to hold it, as against all other claims of no higher character. Clerke's Praxis, tit. 44; Hall's Adm. Pr. 89; People v. Judges of New York, 1 Wend. 39. The lien, so termed, is in reality only a privilege to arrest the vessel for the debt, which of itself constitutes no encumbrance on the vessel, and becomes such only by virtue of an actual attachment. Hall's Adm. Pr. tit. 44; Abbott on Shipping, part 2, c. 3, 142; 3 Kent's Corn. 169, 170; People v. Judges of New York, 1 Wend. 39. Applying these principles to the case bef ore the court, the prosecuting creditors (except seamen suing for wages) are to be satisfled in the order in which the warrants of arrest were served on the property, whether the vessel in kind or her proceeds in court. Each action, with itsappropriate costs, cornes upon the fund according to the period of its commencement." �Although this decision, and the reasoning on which it is founded, especially the remarks quoted above, received the approval of Mr. Justice Nelson in The Globe, 2 Blatchf. 433, (1852,) this rule, as to the order of payment among material men, has been disapproved by other admiralty courts, and it has heen held that the claims of material men intervening before a final decree are to be paid with- out reference to the dates of their attachments, in the inverse order of their creation, without distinction, however, or preference between those concurrently engaged in fitting the vessel for a particular voy- age. The America, 6 Law Eep. (N. S.) 264; The Paragon, 1 Ware, 322; The Fanny, 2 Low 608; The Brig Orner, 2 Hughes 96; The E. A. Barnard, 2 Fed. Eep. 719. The reason given for this inverse order of payment is the same that cdntrols in the case of successive bottomry- bonds and claims for salvage, that the latest benefit to the ship is a benefit to all parties having a prior encumbrance thereon, including material men who have given her earlier credit. This rule isinsisted upon in these cases as one founded in the necessityof com- merce, which gives the ship to her entire value, in case of necessity, whoever may be interested in her, as secnrity to the material man ��� �