Delano v. The J. Walls, Jr.

7 F. Cas. 377

• Court: U.S. Circuit Court for the District of Southern Alabama
• Decided: May 4, 1862
• Status: Published

Opinion

HELD

BY THE COURT:

It is conceded that the petitioner could not have maintained his libel directly against the vessel for the recovery of his debt, but it is insisted, upon the authority of the case of The Santa Anna [Case No. 12,325], decided in this district in 1S29, and the case of The Stephen Allen [Id. 13,301], decided here in 1S30, as well as of the case of Zane v. The President [Id. 18,201], decided by Judge Washington in 1824, that this court should direct the payment of the petitioner’s debt out of the surplus in court If these cases are to be followed, the petitioner must have a decree. I am aware that the tendency of the later decisions is to restrict the remedy of petitioners against the surplus to cases in which they had a maritime lien or privilege upon the vessel, or else a lien thereon which could have been enforced in a court of common law or equity. And yet I am not prepared, while sitting temporarily in this district, to disregard the cases arising here, which, though decided in 1829 and 1830, were published with the sanction of the learned judge of this district in 1855, and may be considered as authoritative expositions of the rule then acted upon in this district. This case is,’ I think, a stronger ease than that of The Santa Anna [supra], and a decree for the petitioner will be fully sustained by the case of The Stephen Allen [supra].

There is also another ground upon which a decree for the petitioner may be based. The letter of Johnson from Baltimore may be properly regarded as a promise to consign the vessel to the petitioner; in other words, to put her in his possession or under his control for the security of liis debt Such is the fair construction of the promise, for so Johnson evidently intended it should be understood. Considering the circumstances under which she was permitted to leave the state, upon the faith of Johnson’s agreement to pay, and the fact that she might have been attached for the debt in Baltimore, and was not, in consequence of this letter, I shall hold that this agreement was founded upon sufficient consideration, and was in equity an appropriation of the specific property to the payment or security of the petitioner’s debt The bark, on her arrival in New York, should have been placed in his possession under the agreement; and, as between the parties to the agreement the court is authorized to consider what, under the contract and in equity, should have been done, as having been actually done, for the purpose of giving the petitioner a lien on the surplus funds in court. If Johnson had carried out his contract, instead of fraudulently violating it, the petitioner could have held the vessel in his possession as a security for his debt, and, in a court of equity, he is not to be permitted to take advantage of his own misconduct. The petitioner must have a decree for-his debt and interest, with costs.