CLARK v. FIVE HUNDRED AND FIVE THOUSAND FEET OF LUMBER et al., 70 F. 1020

SEAMAN, District Judge. The appellee is urgent for a rehearing, but neither the petition nor the brief by which it is supported presents any ground which was overlooked in the decision of this appeal. The opinion proceeds upon an assumption that H. l’aepcke & Co., the consignee, acted in good faith.

The refusal of its president to pay the freight, in part or in whole, was not treated as a waiver of delivery of the entire cargo, notwithstanding it was made without qualification, and was dictated by some interest apparently adverse to the libelant, and was supplemented by Ills frank admission at the trial that he “would not have paid freight to Clark after receiving telephone not to pay,” if delivery liad been completed.

The fact that this refusal was speedily followed by the garnishment proceedings, which were instituted by the same' attorneys who appear as xiroctors for the consignee here, was not referred to, and cennpliedty in the adverse proceedings was not impute>el to the cem-signee. Whether these assumptions could fairly be indulges! in its laven-, if the case defended upon a balancing of equities between the parties, is at least eprnsíiemable', but they are not maternal to a decision.

The opinion further presumes that the state e:ourt may have had “jurisdiction over the libelant, as defemdant before it, tee adjudge a. liability to its suitors, and had juriselie-tion over (he; garnislme”; therefore the statute erf Illinois, cited in the petition as autlmrizing garnishment of indebtedness before due, did not enter into consideration, and affords no niel to the» appellee’s contention here'. The libelant's lien for the freight, and his right to have the lien protecteel and enforced in the admiralty, are uneloubted.

Under the authorities, he; was clearly entilleal to enter that jurisdiction for protection of his lien without waiting fe»r the freight to accrue; by e-eimjilete delivery, subjeert to an impeipitiem of terms if his action was premature, and caused unnecessary expense. Ilis libel was filed and memition se;rved September 15th, and etomplete jurisdiction eif the res was them established in (he district e*ourt. Until the service of the monition he was in possession of the carge>, and the1 eemsignee e-onlel not obtain it without, paying (he freight.

Garnishment cernid not them be made1 effective against the vessel owner’s lieni secured by possession. The; seizure under the libel gave; (his possessieui to the district court for emforcememt e»f the lien. The; consignee then appeared in that ceiurt as claimant, gave its bond, which became a substitute for the cargo under the practice in admiralty, and thus reached the possession which was only attainable through that jurisdiction. Thereby the freight became payable, giving to the subsequent garnishment the only operative force it could have.

Instead of paying the freight money thus maturing into the district court, as its liability to the carrier clearly required, the claimant made payment on the subordinate foreign garnish ment, against which he had a perfect defense in the fact of primary liability to the district court. Upon this alleged compulsory payment the consignee rests its claim to equitable consideration, and demands release from the district court.

Neither equity nor proper-regard for the authority of the admiralty court can sanction conduct which amounts to playing fast and loose with its jurisdiction, invoking its aid to obtain possession of the cargo, and immediately rejecting all allegiance by turning the freight money which was the subject of controversy into a foreign, and, for the purposes of the case, subordinate jurisdiction. The jurisdiction of the district-court was completely established, was paramount, and the libelant had absolute right to its exercise. The dismissal was error, and a rehearing is denied.