Page:Federal Reporter, 1st Series, Volume 4.djvu/683

 m EH BANK OF NOTA SCOTU. 669 �aB the master and crew can resort tô either the ship or tte freight for the satisfaction of their demand, while the mort- gagee can resort to the ship alone, the wages should he satis- fied out of the freight, in accordance with a familiar rule in equity. This contention is partly right and partly wrong. It is undoiibtedly true that Moran acqnired no lien upon the freight for his advances. His right depends upon the con- tract made with him by the ship-owner, that the freight should be collected by him and applied to him to repay whatever might be due him for the moneys he had advanced. His interest in the freight must, therefore, be subject to that of the seamen. But it does net foUow that he is thereby elimi- nated from this controversy, as the mortgagee contends. If he were, the same reasoning •would eliminate the mortgr.gec. The ship-owner is the one that bas been eliminated, leaving the mortgagee of the ship and the assignee of the freight the only parties to the controversy, and their right and their equities alone to be considered. \, �It bas been urged in behalf of the assignee of the freight that his advances were made for the purpose of enabling the ship to earn the very freight which he now claitûs, and a superior equity arises in his favor out of that fact. But, as befora stated, the law gave him no lien upon the freight for his advances, and I am unable to see that the fact that the money was applied to payments for the outfits of the vessel for this voyage gives him any greater equity in the freight than that aequired in the ship by the mortgagee of the ship, through his advances. As between these two parties the equi- ties are equal. �If the holder of the mortgage upon the ship has no equity superior to that of the assignee of the freight, his applica- tion to have the wages paid out of the freight cannot be granted, unless it can be held, as matter of law, that the lien of the seamen does not attach to the ship when there is freight sufficient to pay the wages, and available to the sea- men for that purpose. Manifestly, no such proposition can be sustained. The seamen have a right in the freight, and at ����