Page:Federal Reporter, 1st Series, Volume 7.djvu/524

 513 FJlDEBAIi BEPOBTEB. �paid o]at of the ship, to protect his lien upon the freight. In the case last oited, where a mortgagee of the vessel contested a similar question with a party who had a lien on the freight by way of seeurity for advances, it was held that their equi- ties were eqiaal, and it was directed that the seamen be paid pro gata out of the vessel and the freight, thus giving an equal protection to their equal equities'. In that case, however, each of the parties had an equity based upon what was in fact value paid for his interest or lien at the time of acquir- ing it. In the present case, however, the attaching crediter has parted with no value for his interest or lien upon the freight. He got, by the law of the state, a lien on the inter- est of the owner in the freight due. He acquired it, as it seems to me, subject to an equity then existing as between the mortgagee of the vessel and the owner, which the owner could not then have resisted, to have the fund marshalled for the benefit of the mortgagee. The lien of the mortgage had already attached to the vessel, and the lien for wages to the vessel and freight, and the fund had become insufScient to pay both in full. Under these circumstances, the attach- ing crediter who takes only the interest of his debtor at the time of the attachment, not by purchase or for value, but merely by operation of law, has no greater equity against the mortgagee than his debtor himself had. Therefore, if the mortgagee shall show the mortgage to be valid, he will be entitled to have the. seamen paid out of the freight so far as it will go, notwithstanding the attachment. . The freight money was paid in without prejudice to the rights of either party, and the seamen's wages were also paid without preju- dice to any altimate order which it may be just and equitable to make ; but, as proof has not been taken under either peti- tion, an order of reference for that purpose must be made. �Motion to dismiss petition denied. Petitions referred to take proof of facts, etc. ��� �