46 F. 576 | U.S. Circuit Court for the District of Eastern Pennsylvania | 1891
The only question raised is: was the suit of Williams & Co. premature? The indebtedness and lien on the vessel are not open to controversy. The time appointed for payment is “ten days after the vessel’s return to Montevideo;” or in case she should abandon her voyage back, then before leaving the United States. The libelants, Williams & Co., proceeded on the assumption that the voyage back was abandoned, and the money consequently due. Whether this assumption is sustained by the proofs (which is open to serious doubt) need not be decided at this time. The question involves nothing more than the costs of Williams & Co.’s suit. If the money was not due, Williams & Co. should pay them. We should not however, in view of the circumstances about to be stated, turn the libelants out of court. The vessel was sold as perishable, while held under attachment of Wesenburg & Co., and the money is now in court to answer all just claims upon it. Williams & Co.’s lien is discharged, and they must be admitted to participate in the distribution. The case will therefore be sent to a commissioner to ascertain all necessary facts and report a distribution, as well as a proper disposition of costs, referred to, and to return all additional testimony that may be taken to the court. John A. Toomey, Esq., is appointed commissioner for the purposes stated.
