Page:Federal Reporter, 1st Series, Volume 2.djvu/725

 718 nœpBBAii bepobtbb. �The second exception, filed by Marchant & Co., "that the oommissioner erred in not paying pro rata ail the claimf for services rendered the vessel after arrivai in Philadel- phia on her last voyage, irrespective of the order oî at- tachaient," is more serious. The report in this respect is against the commissioner's judgment of the law, but in conformity ta what he understands to bave been the determi- nation of this court in The Pathfinder, decided in 1877. Whether this understanding is correct I need not inquire. The case was peculiar in its facts, and upon the record is not readily understood. As no written opinion was filed, it cannot now be known, vrith certainty, what views controlled the court in entering the decree. According to the reported observations of the judge, made during the argument, his views of the law at that time were not such as the oommis- sioner ascribes to him, though the decree subsequently entered seems to support the commissioner's conclusion, "that the case is authority for the rule that claims are to be satisfied out of the vessel's proceeds, according to the date of proceedings against it." �The commissioner does not, however, foUow this rule thui broadly stated, but as he says : "Considering how such a rule would destroy the well-established principle of priority in mari- time liens by which the material man or salvor, whose service or expenditure has preserved the vessel as a security for a pre- existing debt, has a priority, so that practieally the last serv- ice advanced for the vessel's necessities taies precedence ûver a previous one, the commissioner believes that such wai not the intention of the learned judge who decided the case, but that it was intendedto apply the principlesof pnor^ei«u» totho particular circumstances of that case." It is not elear, however, that the circumstances of the case justify this dis- distinction ; and the intelligent counsel of Thurlow & Son, (whose attachment was first in time,) earnestly contending that they do not, claims that his clients are entitled, under the authority of that case, to preference for supplies furnished on a previous voyage. The unreasonableness of the rule thus stated, and the great improbability that the learned and emi- ����