§ 113. Where an American citizen in November, 1862, chartered a vessel in a foreign port for a certain sum, which by the terms of the charter was to be paid "in cash upon due delivery of the cargo," held, that the sum was to be paid in specie, unless the parties, at the time of entering into the contract, intended it should be paid in the legal currency of the United States. Gladstone v. Chamberlain,* 4 Int. Rev. Rec., 130.

§ 114. Where a contract entered into at New York called for $2,900 "payable in gold," and a portion thereof had been paid in gold, held, upon suit brought for the balance due, that the decree must be for such balance in dollars, without reference to the premium on gold, and not for an amount which would be the equivalent, in legal tender notes, of such balance in gold. Baker v. Ward, 3 Ben., 499.

§ 115. Where judgment was rendered for the amount of a bond, payable in coin, and for $151.88 in coin, this sum being $2,000 Confederate money reduced to the specie equivalent, held, in view of Knox v. Lee, 12 Wall., 457, that such decree, ordering the payment in coin, was erroneous. Bigler v. Waller, 14 Wall., 297.

§ 116. Where a lease reserved “a yearly rent or sum of £15, current money of Maryland, payable in English golden guineas, weighing five pennyweights and six grains, at thirty-five shillings each, and other gold and silver at their present established weight and rate according to act of assembly," etc., held, (1) that a contract to pay a certain sum in gold and silver coin is, in substance and legal effect, a contract to deliver a certain weight of gold and silver of a certain fineness, to be ascertained by count; (2) whether the contract be for the delivery or payment of coin or bullion, or other property, damages for non-performance must be assessed in lawful money; that is to say, in money declared to be legal tender in payment by a law made in pursuance of the constitution of the United States; (3) with two descriptions of lawful money in use under acts of congress, in either of which damages for non-performance of contracts, made before or since the passage of the currency acts, may be properly assessed, in the absence of any different understanding between the parties; (4) when it appears to be the clear intent of a contract that payment or satisfaction shall be made in gold and silver, damages should be assessed and judgment rendered accordingly, and that such was the intent of the above contract. Butler v. Horwitz,* 7 Wall., 258.

§ 117. Where a promissory note is made payable “in specie" in express terms, it is payable in coin, and judgment should be entered thereon for coined dollars. Legal tender treasury notes are not a legal tender in payment thereof, the legal tender acts applying only to debts payable in money generally, and not to obligations payable by express terms in coin or other commodities. Trebilcock v. Wilson,* 12 Wall., 687.

§ 118. Where a party, entitled by the terms of his contract to gold coin, takes a judgment payable in currency, its amount should be for a sum equivalent in value to the amount of gold coin as bullion. Gregory v. Morris, 6 Otto, 619.

§ 119. Where a lease reserved on annual payment of a specified weight of pure gold in coined money as rent, judgment therefor must be entered for coined dollars and parts of dollars, instead of treasury notes equivalent in market value to the value in coined money of the stipulated weight of pure gold. Dewing v. Sears,* 11 Wall., 379.

§ 120. Petitions being filed by mortgagees against the surplus of certain ships sold in admiralty, the mortgages having been given to secure promissory notes payable in pounds sterling, lawful money of Great Britain, held, that such notes as contracts are as lawful when made since the passage of the legal tender acts as they were when made before; that the decree must be for so many dollars in gold and silver coin, lawful money of the United States, as are equivalent to the number of pounds sterling with the agreed interest added; and if the surp.us and remnants in court consist of money that is less in value than gold and silver coin of the United States of an equal denomination, so much of the money must be applied to the satisfaction of the recovery as will purchase the amount of gold and silver coin of the United States for which the recovery is had. Surplus of the Edith and the Polar Star,* 5 Ben., 144; 5 Ben., 246.

121. A bill of lading executed in Whampoa, for transportation of goods to New York, specified the amount of freight money in pounds, shillings and pence, payable in New York, June 21, 1864. Held, that the ship-owners were entitled to recover what, as shown by evidence, the specified amount of British coin was worth in New York, in gold and silver coined money of the United States, on the 21st of June, 1864, the recovery to be expressed to be in the gold and silver coin of the United States. Forbes v. Murry,* 3 Ben., 497.

§ 122. Powers of congress - Taxing state circulation.— Under the power to emit bills of credit congress can supply a currency for the whole country, and to secure the benefit of it to the people may restrain, by suitable enactments, the circulation, as money, of any notes not issued under its authority. In accordance with the above, the act of congress of July 13, 1866, levying a tax of ten per cent. on the amount of notes of any person, state bank or banking association used for circulation, held constitutional. Veazie Bank v. Fenno, 8 Wall., 533. 817

VOL, XXII-52

SS 1-9.

MONEY HAD AND RECEIVED — MONEY IN COURT.

§ 123. A judgment for duties is properly rendered payable in gold and silver coin. CheangKee v. United States, 3 Wall., 320.

§ 124. State taxes.- The acts of congress of 1862 and 1863, making United States notes a legal tender for debts, has no reference to taxes imposed by state authority, but relates only to debts in the ordinary sense of the word, arising out of simple contracts, or contracts by specialty. Lane Co. v. Oregon, 7 Wall., 71.

§ 125. Under act of 1814.- United States treasury notes issued under and by virtue of the act of 1814, chapter 77, bearing upon their face a promise by the United States to pay the principal in one year from their date, with interest from date at the rate of five and two-fifths per cent. per annum until maturity, bear interest until paid, if not paid when presented at maturity, the same as in ordinary contracts to pay between private parties. Thorndike v. United States,* 2 Mason, 1.

MONEY HAD AND RECEIVED.

See ACTIONS.

MONEY IN COURT.

[See PRACTICE.]

§ 1. Liens.-The proceeds, in a court of admiralty, of a sale made to satisfy a maritime lien, are subject to a lien which was enforcible against the vessel by the state law. Proceeds of the Lady Franklin, 2 Biss., 121.

§ 2. Where a lien is lost by delay in enforcing it, it may still be satisfied out of surplus proceeds in court. The remedy against the surplus, in such case, may be enforced by an action in personam, as the court has jurisdiction of the parties, and the subject-matter or fund is already under its control. The Stephen Allen, Bl. & How., 175.

§ 3. Where a surplus remains in a court of admiralty from the proceeds of a sale made for the benefit of a lien creditor, it may be appropriated in payment of other liens on the original property, but not of debts arising on contracts merely personal, such as debts due the master and surgeon for wages. Brackett v. The Hercules, Gilp., 184.

§ 4. Where a claim is made to the surplus in court, after the sale of a vessel by a proceeding in rem, in the admiralty, such claim, to be allowed, must be of itself, or in its origin have been, a lien upon the ship. Harper v. The New Brig, Gilp., 536.

§ 5. Unless it appears that a claim is either of itself or in its origin a lien on the ship, or other thing out of which the moneys were produced, such claim cannot be satisfied out of surplus or remnants in court. Gardner v. The Ship New Jersey, 1 Pet. Adm., 223. § 6. Parties entitled to sue in admiralty for the recovery of their demands may come in by petition and be paid out of the remnants in the registry, although they possess no lien upon the property out of which the remnants were obtained. Quære, whether such claims as are neither liens nor of a maritime character are payable out of remnants in court. The Ship Panama, Olc., 343.

§ 7. Appeal. When an appeal is taken from the district to the circuit court, the fund in the registry should follow the case, there to remain until the litigation is ended. The Lottawana,* 20 Wall., 201.

§ 8. Wages of laborers, watchmen, etc.— Where the proceeds of sale of ship in the registry were more than sufficient to discharge all the decrees rendered against her, and petitions were filed, one by the assignee in bankruptcy of the owner, to have the surplus paid over to him, and others by various claimants to have their demands satisfied out of the surplus, held, that all claims for labor performed to enable the ship to deliver her cargo at the end of her last voyage, watchmen's wages for watching the vessel in port up to the time of her seizure by marshal, master's wages earned and disbursements made during the last voyage, should be paid out of the surplus as equitable liens, in preference to the claim of the assignee in bankruptcy. In the Matter of the Surplus of the Ship Trimontain,* 5 Ben., 246.

§ 9. Supplies; liens; mortgages.- Where supplies were furnished to a vessel about to depart on a voyage, to be paid for on her return from that voyage, but she was condemned and sold before leaving the home port, held, that the party furnishing the supplies trusted to the personal responsibility of the master or owner, and had no lien upon the ship or her proceeds to give him a claim upon the remnants or surplus in court, in preference to a mortgagee or other lien-holders. Remnants in Court,* Olc., 282.

§ 10. Party not included in decree.- When there is a fund in court to be distributed among different claimants, a decree of distribution does not preclude a claimant not embraced in it, having rights similar to those embraced therein, from asserting by bill or petition his rights to share in the fund, and he is entitled in the prosecution of his suit, upon proper showing, to all the remedies by injunction or order, usually exercised by a court of equity to prevent the relief sought from being defeated; and this rule prevails, even if such decree of distribution be made in obedience to a mandate of this court. In the Matter of Howard,* 9 Wall., 175.

§ 11. Distributing funds in court.- Courts of common law as well as courts of equity and admiralty have full power to make distribution of funds brought into their custody by their process. Westcot v. Bradford, 4 Wash., 498.

§ 12. Order for the distribution of funds in court.- Where, on a bill to foreclose a mortgage by sale, a fund is paid into court by the defendants as payment of the mortgage debt, and by agreement of the solicitors of plaintiff and defendants this sum is to be paid out to the plaintiff's attorney for previous services for his client, and an order to this effect is made by the court, this order is wholly without the jurisdiction of the court. Wolfe v. Lewis, 19 How., 281.

§ 13. Judgment and attachment creditors.- Proceeds of sale of ship in the registry of the court after lien creditors are satisfied belong to the owner and cannot be paid to his creditors, not even judgment creditors, having a decree in personam in admiralty against such proceeds. Nor while in the registry are they subject to attachment or garnishment. The Lottawana,* 20 Wall., 201.

§ 14. Money obtained by a marshal on an execution is in custody of the court, and not subject to attachment in a state court. Alabama Gold Life Ins. Co. v. Girardy, 9 Fed. R., 142.

§ 15. Money deposited in a bank under a decree of the court, and subject to its order, is "money deposited in court" within the meaning of the act of 1793, chapter 20, section 2; and the clerk is entitled to commissions upon such money in the same manner as if it had actually been paid into his hands. Ex parte Prescott, 2 Gall., 145.

§ 16. Withdrawn without authority. Until paid to the informer, or into the United States treasury, the court has complete control of the proceeds of confiscated property in the registry; and if from any cause they are previously withdrawn from the registry without authority of law, the court can, by summary proceedings, compel their restitution. Thus, where the owner of confiscated property, having obtained pardon for the offense on account of which the property had been condemned, demanded a restitution of the proceeds of his property. held, that as no final distribution had taken place, the officers of the court must return to the registry the proceeds of such property received by them as officers. Osborn v. United States, 1 Otto, 474.

§ 17. Informers. The court having custody of a fund derived from forfeitures or penalties is the proper forum in which to settle the claims of informers and others to that fund. United States v. George, 6 Blatch., 37.

§ 18. Money in the hand of officers of a court of admiralty, by order of the court, is subject to further order until actually paid over. Coulter v. Cargo of the Esperanza, Bee, 97. § 19. Proceeds of prize. It is a settled principle of admiralty law that all maritime claims upon the vessel extend equally to the proceeds in the registry arising from its sale, and are to be satisfied out of them. Thus where, upon libel of the government, a ship was condemned as prize, sold, and the proceeds of the sale paid into the registry, the owners of a vessel which had been sunk by the prize ship while on its way to the port of adjudication, under the command of a prize-master, were allowed damages out of such proceeds before distributing the same among the captors. The Siren, 7 Wall., 152.

§ 20. Master's claims. After the liens upon a libeled vessel are satisfied out of the proceeds of her sale, the surplus funds remaining in court are subject to the master's claims for wages, and for disbursements on account of the vessel up to the time of her seizure, as against the owner who claims both as owner and creditor. The Santa Anna, Bl. & How., 79.

§ 21. A master, who has a right to sue in personam for wages, may proceed by summary petition against surplus proceeds of the vessel against which his claim exists. The Stephen Allen, Bl. & How., 175.

§ 22. Discretion as to priority. In dealing with a surplus the court will use its discretion as against an owner in giving precedence to claims which would ordinarily take a secondary rank. Thus where a mate had on board his vessel a private adventure, consisting of provisions which were used for the necessary support of himself and of the crew, held, that he was entitled out of the surplus not only to the value of the supplies consumed by himself, but also the value of supplies consumed by the crew. The Rodney, Bl. & How., 226.

§ 23. Marshaling claims. In the disposition of the proceeds of a vessel in court, different claims are marshaled as follows: 1. Seamen suing for wages. 2. Material-men. 3. A con

signee for money advanced for towage, pilotage, light money and port duties, each claim carrying with it its own costs. Ibid.

§ 24. Foreign creditors.— Quære, whether the claim of a foreign creditor, which, although privileged in its inception, cannot be made the ground of an original suit by reason of an implied waiver of the lien, can, on petition of such creditor, be satisfied out of the surplus funds in a court of admiralty. The Boston, Bl. & How., 309.

§ 25. The assignee of a vessel, assigned to him because of moneys advanced for its construction, is entitled to the surplus, after all other liens have been paid, in preference to common creditors of the assignor. Harper v. The New Brig, Gilp., 536.

§ 26. Funds in the hands of a committee of a lunatic are not in the possession of the court by which the committee was appointed in such a manner as to exclude the jurisdiction of another court over such funds. Sullivan v. Andoe, 4 Hughes, 290.

§ 27. Jurisdiction.-A court of admiralty may take cognizance of and adjudicate upon claims preferred against a fund in court, and distribute that fund conformably to the legal and equitable rights of the respective claimants, without being restrained in the administration of this equity to cases of maritime jurisdiction. Upon this principle a mortgagee of a vessel is entitled to satisfaction out of the proceeds of the ship in court. The Ship Panama, Olc., 343.

§ 28. Damages sustained by a charterer of a ship by a breach of the charter contract in the loss or delay of his voyage, through the negligence or fault of the owner, are a lien upon the vessel; and if a third person satisfies the demand and takes an assignment of the claim, he is entitled to come in upon remnants in court for repayment. Ibid.

§ 29. Payment into court.— Where there remains a surplus after the satisfaction of an execution out of the proceeds of a sale in the hands of the marshal, an order that he may be made to pay it into court to await the disposition of a suit concerning it will not be granted, there being no proof of collusion or danger of loss by reason of his retaining the money. Day v. Emerson,* 5 Biss., 56.

$30. Where the record shows that money is held by a nominal party, either plaintiff or defendant, solely as trustee for the benefit of some other person not a party to the record, it is the right of the court, at the instance of the party in interest, to order the money in controversy to be brought into court. Nusbaum v. Emery, 5 Biss., 393.

§ 31. While, during the pendency of a suit really between a party and the government, the holder of the money in controversy, an officer of the government and nominal defendant, ceases to be an officer, the court should make an order that the defendant pay the money into court. Ibid.

§ 32. The proceeds of the sale of a vessel in admiralty proving insufficient to pay all the claims of the various libelants having liens on such vessel and proceeds, it appearing that the master had taken all the sails from the vessel before her seizure and sold the same to satisfy a mortgage on the vessel held by him, the court will require him to pay the money received on such sale into the registry of the court to satisfy the claims constituting valid liens upon the vessel. Schooner George Prescott, 1 Ben., 1.

66

§ 33. Where specie, although consisting of foreign coin, is attached under process of the court, it is not to be considered as cargo" merely, but as 'money," and as such the officer is bound to pay it into court. The Bark Laurens, Abb. Adm., 508.

§ 34. Under the act of April 18, 1814 (3 U. S. Stats., 127), which directs that moneys received by officers of the United States courts shall be deposited in bank, etc., the court is authorized to require its officers to pay moneys received by them into court, to be deposited in bank by the clerks of the court. Ibid.

§ 35. A payment of money into court admits the contract and damages only pro tanto; and if the plaintiff does not establish more at the trial, he must be nonsuited, or have a verdict against him. Donnell v. Columbian Ins. Co., 2 Sumn., 366.

§ 36. A payment of money into court without a plea of a previous tender operates as a tender from that date, and admits so much of the cause of action. Being a payment pro tanto, it seems that the plaintiff may take it out, although at the same time prosecuting his action for the remainder of his claim; but if he fails to recover more than the sum tendered, he may be required to pay costs. Ye Seng Co. v. Corbitt, 7 Saw., 368.

§ 37. Practice.- Under the forty-third rule of admiralty practice, the party entitled to remnants or the surplus in court can only obtain it by petition or motion, and any one having an interest has a right to intervene "pro interesse suo," whether his application involves the settlement of partnership accounts or not. Admiralty having taken jurisdiction of the subjectmatter, it will continue the exercise of the same until the remnants are appropriated. Thus where a ship owned in partnership has been condemned, upon petition of part owners, having unsettled accounts between them, for a statement of account, and payment of their shares, the court will not pay the surplus to the managing owner, nor retain the amount in the regis

try until the matter can be settled in equity, but pass upon the accounts of the several owners, and apportion the surplus among them. The L. B. Goldsmith,* Newb., 125.

§ 38. Money paid into court to await the decision of questions not decided in the final disposition of the suit must remain in the custody of the court until the questions shall be settled in that or some other court. Florence Sewing Machine Co. v. Singer Manuf'g Co., 8 Blatch., 177.

§ 39. A court of admiralty will retain surplus funds in court to enable a creditor to pursue his relief against them by bill in equity, or it may direct their application on its decree for a maritime demand, upon the petition of the libelant in such decree. The Santa Anna, Bl. & How., 79.

§ 40. The surplus proceeds of a vessel sold to satisfy a maritime lien may be retained in court until all claims of a maritime nature are satisfied. The Stephen Allen, Bl. & How., 175. § 41. Where a sum of money in court has been decreed to be paid to a libelant, the court will not, upon the application of a creditor, appropriate it to a debt due by the libelant. Brackett v. The Hercules, Gilp., 184.

§ 42. A court of admiralty being rightfully in possession of the funds representing the ship arrested, as incident to that possession has power to decide who is entitled to withdraw them from the registry, and may retain the funds until the rights of the claimants are determined, either by direct suit or by summary petition, in the discretion of the court. The Ship Panama, Olc., 343.

MONEY LAID OUT AND EXPENDED.

See ACTIONS.

MONEY ORDERS.

See POSTOFFICE.

MONITION.

See WRITS.

MONOPOLY.

See CONSTITUTION AND LAWS.

ΜΟΝΤΑΝΑ.

See STATES AND TERRITORIES.

MOOT CASE.

See COURTS.

MORTGAGES.

See CONVEYANCES; FRAUD, B, II. Of Vessel, see MARITIME LAW. In Bankruptcy, see DEBTOR

AND CREDITOR, B, XIII, XVI, 2.