Page:Federal Reporter, 1st Series, Volume 2.djvu/726

 THE BBTfl B. A. BARNAED. 719 �nent Judge who decided the case -would adopt it, are quite sufficient to justify seriouB doubt whether the case is correctly understood. �With the limitation put upon it by the commisBioner, the rule is scarcely lesa unreasonable. Why sb^uld one of sev- eral individuals, who are concurrently creditiiig a vessel with supplies for an intended voyage, and entitled to liens, be preferred over the others because he happens to secure the first prooess? "Why should the rights of parties thus be made to depend upon the resuit of a scramble? Such a rule would forbid ail forbearance or indulgence of the vessel, and require each crediter to proceed to sue out an attachment at the ear- liest practicable moment. Support for the rule, however, in its broadest aspect, as well as the limited one adopted by the commissioner, may be found in a few cases; but, in my opinion, the decided weight of modern authority in this eoun- try is against it in either aspect. The Paragon, Ware's Eep. 330; The America, 16 Law Eep. 264; The Fanny, 2 Lowell's Kep. 508, each involved the question, and in each it was held, after a careful examination of the authorities, that liens of the same class or rank, upon a vessel, should (as a general rule) be paid out of the proceeds of sale in the inverse order of their creation, without distinction between creditors of the same class, who are concurrently engaged in fitting the vessel for an intended voyage, and without respect to the dates of attachment. In ÎTie America importance is attributed to the decree in this respect; but it is said the court will con- trol the decree, so as to avoid an improper preference. In The Fanny, however, decided more reeently, Judge Lowell says: "One who obtains a decree obtains no priority thereby over others whose liens are, of themselves, of equal degree, where ail the claims are pending together If there has been a break, such as a voyage, those who have supplied the last voyage have a preference over those who furnished an earlier outfit." While thus repudiating the suggested advantage of a decree, he refers approvingly to the careful and elaborate opinion of Judge Hall as a correct exposition of the rules ����