330 EXCHEQUER COURT REPORTS. [VOL. VIL 1002 NEW BRUNSWICK ADMIRALTY DISTRICT. Jan• 7. No. 73. MILES L. MUNSEN AND ELMER PLAINTIFFS ; D. TINGLE`. ... . AGAINST THE SHIP COMRADE. No. 75. GEORGE SAUNDERS PLAINTIFF. AGAINST THE SHIP COMRADE. No. 76. JAMES MORTON DICKSON AND PLAINTIFFS ALMON DICKSON AGAINST THE SHIP COMRADE. Maritime law—Actions in rem--Wages—Equality—Priority—Costs—Pro rata payment of subsequent claims. Held, following the Saracen (6 Moo. P. C. 66), that when claimants against a fund in the registry are of equal degree, the court will give priority to the diligent creditor. 2. Where the parties are not of equal degree, and one claiming subsequently has a legal priority over another, such priority will be protected if he make his claim before a decree has passed for distributing the fund, but not afterwards. 3. Where two claims for seamen's wages were prosecuted to judgment before two similar claims were allowed by the court, the costs of the prosecution of the first two claims were ordered to be paid out of the fund in the registry in full in preference to the last two claims. In respect of the Iatter it was directed that they should be paid in full if the balance of the fund permitted it, if not they were to be paid pro rata.
VOL. VII.] EXCHEQUER COURT REPORTS. 331 1902 THESE were three actions in rem for the recovery of seamen's wages. MUNSHN V. The facts are stated in the reasons for judgment.' COMRADE. October 19, 1!101. SAUNDERS V. Dr. Stockton, for the plaintiffs Munsen and Tingley ; COMRADE. DICKSON In this case my clients have a claim for seamen's ?J. wages. They were prompt in pressing their claims COMRADE. and obtained a • decree of the court assessing the afC o o g n n n n e .~ e nt l, amounts due ; and under that decree the vessel has been sold and the proceeds brought into the Registry. No application was made by other parties to the court to stay final judgment, or to ask that the decree be conditional upon other claimants ranking according to priority of claims. The costs must first be paid out of the fund in court ; (1). The prior petens, or one first getting a filial decree, if, in pari conditione with competing claims, ranks next after the claims for costs. (He cites The Margaret (2) ; The Saracen (3); The W. F. Safford (4) ; The Clara (5). See also, The Markland (6). The case of The Tesdemona (7) in no way conflicts with the authorities cited. In the latter case there was no final judgment or decree. It was a case of primum decretum, by which the court put the plaintiff in possession of the vessel 'where the proceedings were in pain, no appearance having been given for the owner. The authorities, it is submitted, fully support the contention of the plaintiffs, that as their claims are for wages, and are in-pari conditione with all competing claims, the judgment in. their favour must be paid in full.. After payment of the costs of suit (I) See William cC Brace's Adm. 13) 6 Moore, P. C. 56. Prac, p. 468 ; The Immacolata (4) Lush. 71 ; 29 L. J. Ad. 109. Concezione, 9 P. D. 37. (5) Swa. 1. (2) 3 Hagg. 240. (6) L. R. 3 A. & E. 340. (7) Siva. 158. _2~
332 EXCHEQUER COURT REPORTS. [VOL. V IL 1902 bringing the funds into court, the balance of the MIINGEN fund, if any, must be paid according to the priorities COMRA DE. among the other claimants. December 3, 1901. SAUNDERS v G. H. F. Belyea for the plaintiff Geo. Saunders, COMRADE. whose claim amounted to $211.93, filed an affidavit of DICKSON v. insolvency of owner and captain, being all the parties COMRADE. responsible to him for his wages, and contended that Ar g ument the court should administer funds on equitable prin- of Counsel, ciples by first paying all the costs of the party bringing the vessel into court, and then dividing the remainder pro rata. The cases cited by Dr. Stockton have nothing to show to the court that there was not sufficient property outside of the ship to pay claims, and the equitable jurisdiction of the court not being invoked, they are distinguished from this case. That Saunders being in court before decree made in the first claim, the court must recognize his equitable right to payment on equitable principles as in insolvent estates. The fact of a decree being had in the first claim should not debar Saunders from participating in proceeds of sale, as the vessel had been attached previous to decree and he was, therefore, before the court ; and, according to practice, the decree in first claim was asked for and obtained without notice, and notwithstanding the second suit in court. We are all here now • before the court and the proceeds of sale are still in court. (Cites The Markland (1), The Saracen (2), The Wil-liam F. Safford (3). J. K. Kelley for the plaintiffs J. M. Dickson and A. Dickson. Myclients are seamen whose claims amount (1) L. R. 3 A. & E. 340. (2) 6 Moore P. C. 56. (3) Lush. 69.
VOL. VII.] EXCHEQUER COURT REPORTS. 333 to. $278:72. The'court, while created by a r statute of 1902 the Parliament of the Dominion of Canada, is governed MUNSEN by the general rules applicable to the court when it CO1:1;ADa. was one of the system of Ecclesiastical Courts of S AIIV DRRa England, and where there is no express rule will adju- dicate upon principles of equity and natural justice. COMRADE. The doctrine that the prior petens should be paid. in DICKSON full, in etidem conditione, does not apply to seamen. The COMRADE. proceeds of the res having been brought into court Argument will be administered for the benefit of all seamen claim- of Counsel. jug for wages, as a, court of equity would administer an insolvent estate. The maser - and owner of the Comrade being insolvent, the seamen camiot have recourse to them, but must rely for payment out of the res. It is established by the Saracen (1) that the court has power to administer equity. The - costs of the prior petens and officials' • fees it is admitted should be paid in full ; . but the principal should rank pro rata with the claims of the other seamen whose actions for wages have been brought later in time' but before a decree for distribution of the funds has been made in the first suit. The William F. Safford (2) is relied on by text book-writers as ,the authority for the general rule cited in Williams 4. Bruce (3), that parties being in pari conditione the first successful suitor is paid.in full. A'jridgment i4 , a:case is authority for nothing more than the . Wgal issues decided. The William F. Safford decided - nothing more than : (a) That seamen's wages shôüld be . paid in full ; (b) That a bottomry bond given under circumstances as in that particular case will be paid next ; (c) That necessaries rank after these. The., raison d'être for the proposition laid. down In The Saracen that the prior petens should be paid first, is that diligence should be ' rewarded. This argument is fully (1) 6 Moo. P. C. 56. . ,(2) Lu.h. 6L 3P.48
334 EXCHEQUER COURT REPORTS. [VOL. VIL 1902 met by conceding the payment of costs, leaving the MQx e EN balance of the proceeds or the res as assets in the V. hands of the court for administration. " If different COMRADE. demands are of the same nature, priority in beginning SAUNDERS V. the suit will not give priority in payment if the other COMRADE. demands are brought to the attention of the court DICKSON before a decree in the first suit brought is rendered." (1) v. COMRADE. The court will take judicial notice of its records, therefore, the argument that a caveat should have A.rgument of Counsel. been filed to have brought the other claims to notice of the court does not apply. The caveat is used where no other suits are pending at the time of decree in first suit. The court will not make an order prejudicial to the interests of one suitor against another claiming from the same fund without giving all claimants a hearing, and if without full information a prejudicial order is made the court, having power to control its own orders, will vary an order or decree in the interest of justice. In the cases of The Markland (1), The Saracen (2), The Willia:, F. Safford the matter of the payment of seamen's wages otherwise than in full over other claimants, was not before the court ; and it is not possible to say what the court would have decided had the funds been insufficient to pay all the seamen in full. In all these cases the prior peters was not a seaman. Mc,LEOD, L. J. now (January 7, 1902) delivered judgment. in this case an action im rem was commenced against the ship Comrade by Miles L. Munsen and Elmer D. Tingley, seamen, for wages, on September 19, 1900. The ship was arrested but no bail was given and no appearance was filed, and on October 12, 1900, the (1) L. R 3 A. & E. 340 ; Par- (2) 6 Moore P. C. 56. eons' Admiralty, p. 234. (3) Lush. 69.
VOL. VII.] EXCHEQUER COURT REPORTS. 335 plaintiffs obtained leave .to proceed ex parte and set the 1902 cause down for trial and it was tried on the 19th of my Ex October, being , undefended, judgment was given for COMRADE. the plaintiffs •and their claims assessed as follows,— Munsen's at $116 and Tingley's at $89 ; and the ship SAU N ERS was vD. ordered, to be sold, and on the 27th of October she was COMRADE. sold by the Marshall for $600, Which money is now in DICKSON the Registry. v. COMRADE. On the 26th of September, 1900, Geo. 'Saunders, R.oa. another seaman, commenced an action in rem for wages, „u=ent. the summons and warrant were served on the 29th September and filed on the 2nd October. No appear- ance was entered. On the 11th October James M. Dickson and Almon Dickson, seamen, issued a summons in rem for wages. No appearance was entered. Two other claims were made, one for necessaries supplied the ship and one for repairs made on her, but, as she did not sell for enough to pay the costs and wages due the seamen it will not be necessary to consider them. On the 3rd of December, 1900, Dr. Stockton, the counsel for Mùnsen and Tingley, ' moved to have their taxed costs and also the amount of their claims paid out of the fund. And . on the same day the claim of Geo. Saunders was assessed at $211.93, that of Jas. M. Dickson at $169.17 and Almon Dickson at $130. When Dr. Stockton moved to have the plaintiffs' costs and claims paid, Mr. Kelley and. Mr. Belyea, representing James M. and Almon Dickson and Saunders, whilst admitting that the plaintiffs' costs were a first . lien on the fund and entitled to be first paid, claimed that the parties for whom they appeared being seamen and having an equal maritime lien for wages with the plaintiffs were entitled to rank pro rata with them on . the. balance of"the fund for their claims. The question then is, whether I have a right to direct that these parties, being of equal degree, have a right
336 EXCHEQUER COURT REPORTS. [VOL. VIL 1902 to rank equally on the fund now in the Registry. In bMv N s EN The Saracen (1) it was decided that when claimants COMRADE. were of equal degree the court would give the priority to the diligent creditor, that is, to the one obtaining SAIIv. the first judgment and that decision appears to have COMRADE, been followed since in all cases where the parties were DICKSON of equal degree. COMR ADE. It is also held that when they are not of equal degree, but when the party subsequently claiming has a legal Ja bene. priority over the other, his priority will be protected if he makes application before the money has actually been paid out. The first question is, has there been a final decree ? I think there has been. The plaintiffs have had the ship seized, a decree for sale made and the ship sold, and the proceeds brought into the Registry and their own claims assessed, and all that now remains for them is to reap the fruits of their diligence by having the money paid over to them. If an application were made to the court before a decree is made, the court would, so far as it could facilitate the proceedings, impose such conditions as might be necessary so that the parties might share proportionately. In this case no application was made until after decree was made in favour of the plaintiffs, and I think I cannot now deprive them of the benefits of their diligence. The order of distribution will be :— (a) Payment of plaintiffs Muusen and Tingley's taxed costs. (b) Payment of plaintiffs' claims. (1) 6 Moore P. C. 56.
VOL. VII:] EXCHEQUER COURT REPORTS. (c) Payment of claims of Geo. Saunders, James M. Dickson and Almon Dickson if there is sufficient to pay them in full, if not, they will'bè paid pro rata. Judgment accordingly. Solicitor for plaintiffs Munsen and Tingley : Solicitor for plaintiff Saunders : G. H. V. Belyea. Solicitor for plaintiffs J. M. and A. Dickson J. 337 1902 1. $ N COMRADE. SAII11DERS V. A. A. COMRADE. • Stockton. DICKSON V. COMRADE: K. r" Kelley.. Judgment.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.