Thomas et al. v. Osborn.
by the omission to arrest her until she arrived in the United States.
It is said that Weston proves that nothing was said to him about their account, and hence it is inferred that nothing was due on it, or that it was not supposed by Loring & Co. to be a charge on the Laura. But it must be remembered that the house of Loring & Co., with whom Leach dealt, had dissolved partnership in the June preceding Weston’s arrival, and a new one, with new partners in it, established under the same name. It is true, that Mr. Atherton, a partner in the first firm, remained there, and was attending to their business. But the transactions of Weston were with the new firm, and it would have been useless for Atherton to present this claim to Weston, unless he had determined to libel the vessel. For, as I have said, Weston had no money but what he obtained from the new house of Loring & Co., for his bill on his owners, and this Atherton knew. Besides, the proceeds of her cargo shipped to Peyta and Panama, as hereinbefore mentioned, at the time these repairs and supplies were furnished, were to be paid to Loring & Co.; and when Weston was at Valparaiso, the account of these proceeds had not been received. It was most probably supposed, by Loring & Co., that they might prove sufficient to pay their claim against Leach, including these supplies. And this, it appears, would have been the case if Leach had not improperly converted a large portion of them to his own use, and to satisfy the claims of his owners against him. Justice, therefore, required Loring & Co. to await the result. They did wait, and did receive some money from this source, but not enough to pay even the advances for the cargo itself.
This is admitted in the argument. But it is said the money received should be first applied to extinguish the lien: first, because there was a security bound for that item—that is, the vessel; and secondly, because it is the first item in the account.
Now, the conclusive answer to this objection is, that, if no specific application was made by either party at the time of payment, the law appropriates it according to the principles of equity. And, as the money received from Panama was the proceeds of goods purchased with the money advanced by Loring & Co. for that purpose, equity will apply it in the first place to the payment of that debt.
Indeed, there is enough in the invoice and the testimony of Leach to show that the proceeds were to be so applied by the agreement between Leach and Loring & Co., when the advances were made. And they were accordingly so applied, as
