Page:Federal Reporter, 1st Series, Volume 8.djvu/350

 S36 FEDEBAIi BEPOBTEB. �seizure, and a proeeeding in rem in admiralty to enforee and give effeot to an existing lien, is carefully pointed out by the supreme court in Leon v. Garcelon, 11 Wall. 189. �In this state of the authorities I am unable to follow the case of The Triumph, as furnishing a rule for the order of payaient in a case of successive claims for tort, which seems not to be governed by the same reasons as to order of payment which apply to a case of several claims by material men. Nor is it possible to sustain the claim of the Phœnix Insurance Company to a preference under authority of the case of The Triumph, even if that case were applicable to a case of succes- sive torts, because there is nothing to show that the attachment in its case was earlier than that in the case of Conway. Where several attachments are levied on the same property at the same time, the property attached is to be distributed among the several plaintiffs, if they recover judgments, as having an equal right thereto, and this rule seems to apply though the processes were delivered to the offioer at different times. Gates v. Bushnell, 9 Conn. 630; Shove v. Dow, 13 Mass. 629; Rockwood v. Varnum, 17 Pick. 289. These returns of the marshal merely showing an attachment in eaeh case on De- \ cember 24th, there is no presumption from the difference in the dates �' of the processes that one was served before the other. If the right �to a priority depends upon an earlier service, the timemay be shown by evidence extrinsic to the retiirn, though the return shows service on the same day. But a party claiming priority on this ground must make good his right by proof. Drake on Attr.ch. §§ 261, 264, 265, and cases cited. If, therefore, the case of The Triumph applies to this case, it would seem that both of these libellants would be enti- tled to share in the fund, by the application of the rules that govern similar cases of attachment on mesne process ; but, for the reasons already stated, I think that decision does not furnish the principle which Controls the present case. �If, then, the test of the time of service of process be rejected, by what principle of the maritime law is the case governed ? There are three possible theories of the case : (1) That the two parties be paid pro rata; (2) that the party suffering the first loss iras the prior claim; (3) that the party suffering the second loss bas the prior claim. �I think there is no authority which would justify a pro rata dis- tribution of the fund. Judge Lowell, in the case of The Fanny, in- deed says that the general rule in admiralty is that all lienholders oj ��� �