18 F. 455 | S.D.N.Y. | 1883
The law does not authorize the marshal, in the sale of property under process or decree in admiralty, to employ an auctioneer at the expense of the parties, or of-the property, or as an incum-brance upon the sale, or as a charge against the purchasers. The purchaser in this ease was the libelant and half owner. The auctioneer employed by the marshal announnced, prior to the bids, that the purchaser should pay the auctioneer’s fee of $25, and $5 for the bill of sale. Section 829 of the Revised Statutes provides a certain percentage for the compensation of the marshal for the sales of vessels or other property under process in admiralty, and also provides that the marshal shall be entitled to one dollar for executing a deed “prepared by the party or his attorney,” and to five dollars “for drawing and executing a deed of the property.” Section 823 further declares that no other compensation shall be taxed and allowed except in cases expressly provided by law. Unless the auctioneer be employed upon a specific agreement of the parties to the controversy, he is a mere agent of the marshal in effecting the sale, and cannot therefore make any claim for compensation, or impose any charge upon the property or purchaser, which the marshal himself could not lawfully make or impose. No auctioneer is required by law upon sales by the marshal; and the latter can make no charges except such as the law expressly authorizes. Bottomley v. U. S. 1 Story, 153; Crofut v. Brandt, 13 Abb. Pr. (N. S.) 132; S. C. 46 How. Pr. 481.
So, under section 829, the party to the suit has an option to draw the deed of sale, and have it executed by the marshal at a charge of one dollar only. After the claimant had bid off the property at $4,450, he objected to paying $25 auctioneer’s fees in addition, and claimed the right to draw the deed. The auctioneer, in presence of the deputy marshal, refused to yield to these objections, in consequence of which the sale was not completed, and the property was subsequently again put up and sold at the price of $4,000 only. The libelant moved to compel the claimant, who was the first purchaser, to account for the difference out of his share of the proceeds now in the registry.
As unlawful exactions were coupled with the bid, the claimant was
The libel was filed to obtain a sale and partition of the vessel between equal half owners, under which the vessel has been sold by consent and the proceeds brought into court. George W. Lewis was made defendant, as a former managing part owner, to obtain an account and payment from him of the libelant’s share of former earnings of the vessel. But George W. Lewis had convoyed all his interest in the vessel to the other defendant before the libel was filed. Iiis liability for such earnings rests merely upon a naked accounting between part owners, of which the admiralty does not take cognisance when unattended by any other ground of jurisdiction. The Ocean Belle, 6 Ben. 253; Grant v. Poillon, 20 Haw. 162; Ward v. Thompson, 22 How. 330; The Larch, 2 Curt. 427; Duryee v. Elkins, Abb. Adm. 529; Wenberg v. Mineral Phosphates, 15 Fed. Rep. 285, 288. As to George W. Lewis, there is no other ground of jurisdiction in this case, since he was not a part owner when the libel was filed, and the libel as to him must therefore be dismissed, with costs.
The other defendant was managing part owner for a few months before the libel was filed, and an account of his receipts of the vessel’s earnings is demanded as an incident to the just distribution of the proceeds of the vessel sold and now in the registry. This, it seems to me, may and ought to be allowed, as was done in the case of The L. B. Goldsmith, Newb. Adm. 123, without violating the principle of the decisions above referred to.
It is urged by the defendant that the libelant has no lien upon the past earnings in the defendant’s hands, even if on an account taken anything should be found due the libelant in respect thereto ; and that, therefore, they cannot be taken into account in this court in the distribution of the proceeds of this vessel now in the registry. The question of the lien of the libelant upon the proceeds of the vessel for any such balance has long been a vexed one. In the ease of Mumford v. Nicoll, 20 Johns. 611, 636, such a lien was sustained, overruling the decision of Chancellor Kent, 4 Johns, Ch. 532. Judge StoRY, in the case of Patton v. The Randolph, Gilp. 457, 460, intimated that he should be disposed to follow the opinion of Chancellor Kent, but the point was not determined, as the libel -was dismissed on other grounds. In the case of The New Orleans v. Phœbus, 11 Let. 175, it was said to be improper in a libel for possession to introduce claims for an account of the vessel’s earnings. In the case of The Larch, 2 Curt. 427, it was held on appeal, by Cuktis, J.,
I have not been referred, however, to any case in which it has been held that such an account could not be required and taken from a person who comes into court claiming a share of a fund in the registry as incidental to a just determination of his claims. And since the promulgation of the supreme court rules in admiralty under the act of congress of 1844, this court, by the forty-third rule, is required, when any person claims an interest in any fund in the registry of-the court, “to proceed summarily to hear and decide thereon, and to decree therein according to law and justice.” Unless the words “and justice,” here used, mean something beyond mere technical legal rights covered by the word “law,” they would be superfluous; they are intended to embrace, I think, all recognized equitable rights, hs well as mere demands at law.
There is no question that the libelant is entitled to one-half of the net earnings of the vessel in this defendant’s hands, and if they were in the registry he would .have a lien thereon. If, as is claimed by the libelant, this defendant has a considerable sum in his hands as the proceeds of these earnings, it would be a very imperfect administration of justice to decree to the defendant the full half of the proceeds of the vessel in the registry, without any account of the excess of her earnings belonging to the libelant already in this claimant’s possession, and to turn the libelant over to a future and possibly ineffectual action in another court to recover these earnings. There is no want of power, as I understand, in this court, as a court of admiralty, to take such an account as an incident to the principal cause, of which it has undoubted jurisdiction, when justice requires such an account in order to make a just distribution of a fund in the registry of the court; and if any express authority were needed, it seems to me the language of the forty-third rule is sufficient. The English courts of admiralty, under 24 Viet. c. 10, § 8, have for many years exercised full jurisdiction over such questions and such acconnfcs. Macl. Shipp. 102.
As stated by Ware, J., in the case of The Larch, 3 Ware, 34: “Where there are such accounts incidentally arising in the case, it is a question addressed to the sound discretion of the court whether it will take cognizance of the account or not. If long, intricate, and multifarious, the court will decline to take jurisdiction.” In this case the period is short, — some three or four months only, — and the account necessary to be taken does not appear to involve anything intricate, or that cannot be easily adjusted in this court; and, as it seems to me, it should therefore be settled here.
There is another ground, however, upon which, if the foregoing be of doubtful authority, the accounting in this case ought, I think, to be sustained. Various other lienors for wages and supplies have
The report of the commissioner as to the claims of the various petitioners is sustained, and the exceptions overruled.