Page:Federal Reporter, 1st Series, Volume 7.djvu/695

 THE, BRIO WEXFOKD. 683 �Crocker Brothers & Co. excepted to the allowance of Cross- man's elaim, but they have no interest in the freight which . makes their exception available. �Colirts of admiralty recoguize and enforce in proper cases Ihe equitable rule that where one creditor has two funds to resort to, and another has but one, the creditor having two will be compelled to resort first to that which the other creditor is not entitled tO resort to, in order that both rhay be paid. The Sailar Prince, 1 Ben. 234, 461. It is objected in this case that the seamen's and master's wages should not in this case be paid out of the freight rather than the vessel for the relief of those having claims on the vessel, because the freight was not attached on the libel of the sea- men, but was brought into the registry on the suit of Cross- man, ira personam, against the master and owners. But I think this is not a sufficient objection. The equitable rule is not limited or narrowed by the voluntary acts or omissions of the creditor having the two funds to resort to. In this case no claim is directly made against the freight, that of the mort- gagee being excluded, except that of Crossman. This leaves some $630 of the freight money of this vessel in the registry of the court for distribution. It is, in f act, subject to the lien of the seamen and master. Even if the owner had appeared to claim it, it would be proper, upon the application of the sub- sequent material men and the mortgagee having claims on the vessel which are in danger of being lost by reason of the payment of the wages out of the vessel, to order the seamen and master to file their petitions to be paid out of the freight. Inasmuch, however, as their libel was against both vessel and freight, though only the vessel was in fact attached on the process taken out by them, it seems to be unnecessary to go through this form. Both funds being in court, and all the parties in interest having been heard, such order for the marshalling of the asset^ may be made as equity may require. �I thihk there is no force in the claim of the mortgagee that he should have priority over the master out of the proceeds ��� �