The Athenian. THE ATHENIAN. DISTRICT COURT-EASTERN DISTRICT OF MICHIGAN-OCTOBER 15, 1877. SALVAGE-ITS RANK IN MARSHALING CLAIMS. 1. From proceeds of sale of vessel salvage is to be paid in preference to prior claims for seamen's wages. 2. The schooner got aground in the Detroit river, when the parties excepting to commissioner's report got her off. They claim the service as that of salvage, and are entitled to rank claims for towage and materials furnished. Other facts are stated in the opinion. F. H. Canfield and Jas. J. Atkinson, for the salvors. Jno. C. Donelly, for the seamen, and Geo. E. Halliday, for material men. men. BROWN, J.-The only question in this case is whether the expenses of getting this vessel off Stony Island reef and towing her to Windsor are entitled to be paid in preference to the seamen's wages and the ordinary claims of material This claim is not for salvage in the strict sense of the word. There was no immediate danger to the schooner; there was no peril incurred by the salving vessel. The job was undertaken upon a contract for a sum certain, substantially like any other contract for towage services. Had the vessel been sunk at her dock, or at any other place where there was no reasonable probability of her suffering injury by remaining, I should not consider the claim as entitled to any particular favor; but, under the circumstances, I think the The Athenian. vessel was in a condition to have salvage services rendered her. She was fast upon the rocks, was leaking badly, and, indeed, was full of water; passing vessels caused her to sway back and forth; she was also subject to the action of a strong current, and a change of wind to the south-east might have created sufficient sea to have broken her up. While, as before observed, the case is not one of strict salvage, inasmuch as the hiring was by the day, and no peril was incurred by the salving vessel, I do not regard this fact as material in determining the nature of the service. The case is not one of ordinary towage, and, if not towage, it is salvage. The term "extraordinary or meritorious towage" made use of in some cases is misleading and of no practical importance. As distinguished from towage, salvage implies simply some degree of danger and some need of extraordinary assistance. As observed by Dr. Lushington in The Reward, 1 W. Rob. 174, 177: "I apprehend that mere towage service is confined to vessels that have received no injury or damage, and that mere towage reward is payable in those cases only where the vessel receiving the service is in the same condition she would ordinarily be in, without having encountered any damage or accident." In the case of The Westminster, 232, he adds: "The degree of the danger is immaterial, in considering the nature of the service, for if the cargo at all required assistance to remove it to a place of safety, the service then assumes the character of a salvage service." See, also, The James T. Abbott, 2 Sprague, 101; Baker v. Hemmingway, 2 Low. 501. In the case of The M. B. Stetson, 1 Low. 119, the court remarks: "Speaking generally, it may be said that the mere fact that a vessel is aground, is enough to show that she is in a situation to have a salvage service." While this language was not intended to apply to a grounding upon a mud bank in a river or harbor, which is an The Favorite. ordinary incident of navigation, I think it may be properly applied to any case where the grounding is attended with danger to the vessel, if she be suffered to lie there. The case being one of salvage, libellants are entitled to be paid first, even before the seamen whose wages were earned prior to these services, since it is owing to their exertions that anything remains to which the lien of the seamen can attach. The Selina, 2 Notes of Cases, 18; The Mary Ann, 9 Jur. 94; The Panthea, 1 Asp. Mar. Law Cases, 133. The commissioners will amend the report by classifying the claims as follows: (1) Salvage services; (2) seamen's wages; (3) claims of tugs and material men, those of a later year ranking those of a former; (4) domestic claims. THE FAVORITE. DISTRICT COURT-EASTERN DISTRICT OF MICHIGAN-OCTOBER 15, 1877. The court has power to order the re-arrest of a vessel if the stipulation to answer a judgment has been accepted by mistake or fraud and the sureties were never bound. Motion for re-arrest of vessel, on the ground that she had been improvidently discharged from custody. It appeared that a stipulation had been accepted the only surety upon which was a married woman who had no interest in the vessel. The Favorite. F. H. Canfield, for libellant. H. C. Wisner, for the respondent. BROWN, J.—That the surety in this case, being a married woman and having no interest in the vessel, is not bound by her stipulation, is too clear for argument, and in fact is conceded by counsel. Devries v. Conklin, 22 Mich. 255; West V. Saraway, 28 Mich. 468. It is claimed, however, that the vessel having once been released from custody is forever discharged of the lien, and the court has no power to order her re-arrest. The Union, 4 Blatch. 90; The Whitesquall, do. 103; The Kalamazoo, 9 English Law and Equity, 587; The Old Concord, 1 Brown's Admiralty, 270. In none of these cases, however, was there any mistake or fraud at the time the stipulation was signed. In the Union and the Kalamazoo the amount of damages claimed in the libel was increased. In the Whitesquall the vessel was returned to custody by the consent of the parties, against the protest of a person having an interest in the vessel; and in the Old Concord the sureties had become insolvent. Conceding that the court has no power to order the re-arrest of a vessel once fairly discharged upon a binding stipulation or for any cause not existing at the time the stipulation was accepted, I am clearly of the opinion that this power exists, whenever through mistake or fraud a stipulation has been accepted which was not binding upon the parties signing it. An order will be made for the re-arrest of the vessel. Gibson v. Cincinnati Enquirer. GIBSON v. CINCINNATI ENQUIRER. CIRCUIT COURT-SOUTHERN DISTRICT OF OHIO-NOVEMBER, 1877. MOTION FOR NEW TRIAL-VERDICT-INTEREST. Verdict rendered in favor of plaintiff, but judgment delayed because of motion for new trial: Held, that on overruling the motion the plaintiff is entitled to judgment for the amount of the verdict and interest from the day it was rendered. And the rule applies as well to actions of torts as to those founded upon contracts. The facts are fully stated in the opinion of the court. SWING, J.-The plaintiff brought his action for libel against the defendant, and on the 16th day of November, 1876, the jury rendered a verdict in his favor for the sum of $3,875. On the 17th day of November, 1876, the defendant filed a motion for a new trial. This motion was argued by counsel, and submitted to the court at the February term, 1877, and on the 15th day of October the court overruled the motion for a new trial, and ordered judgment to be entered upon the verdict for the amount thereof, with interest from the 3d day of October, 1876, being the first day of the term at which the verdict was rendered. See 5 Cent. L. J. 380, for a report of the opinion on that motion. On the 17th day of October, 1877, the defendant filed a motion to modify the judgment, for the reason that no interest should have been allowed upon the verdict until judgment was entered thereon. It is insisted by the defendant that interest is the creature of the statute, and that this case does not come within its |