The bottomry creditor had no authority in law to exact from the seamen a formal assignment of their claims for wages as a condition to th > payment thereof. If he satisfied those claims in good faith, for the protection of his demand on the interest of the ship-owner, the court might recognize in his behalf a novation pro tanto to those claims, and, upon the final decree, secure to him a reimbursement of such advance, as equitably united or compounded with his lien debt. But he had no right to compel the seamen to put themselves or their demands under his control, or to coerce from them the payment of his proctor’s fees, or to require them to defer the prosecution of their demands until he chose to institute a suit upon his bottomry security. His extreme privilege would be to pay off the wages, and prevent the fund being diminished by costs to the seamen, for the recovery of wages alone, and in that manner to become permitted to tack their lien on the ship to his own, and sue for both in his own name and right, and burdened with but a single bill of costs. This was the legal relation of the bottomry holder to the crew.
The objection that the suit by the seamen was prematurely commenced, cannot be sustained. The action is under section G of the act of July 20, 1790 (1 Stat. 131), which prescribes that if the wages of any seaman are not paid within ten days after the’discharge of the cargo at the last port of delivery, the master may be summoned to show cause why a process in rein should not issue; *963and if cause is not shown, process in rem shall issue accordingly in the manner prescribed by the act. It is true that ten days had not expired after the termination of the voyage when the proceedings of the libel-lants were taken. But the crew were all discharged by the master of the ship on her arrival here on the 28th of December, and their wages thus became due and payable immediately. In such case the statute does not compel seamen to wait ten days before bringing suit for their wages. Such discharge from the ship terminates all connection of the seamen with the voyage, or with the unlading of the ship, and they are thereby remitted to their right of action by the law maritime. See The Cypress [Case No. 3,530].
But section 6 of the act of 1790 requires that in all suits under the act by seamen against a vessel for wages, “all the seamen or mariners having cause of complaint of the like kind against the same ship or vessel, shall be joined as complainants;” and, therefore, after proceedings are on foot in behalf of a part of the crew for the recovery of wages on the common voyage, it is not competent for others of the same crew to institute separate actions on their individual demands therefor. The ship is to be burdened with no more than the expenses of one prosecution, and those of the crew not named in ¿he proceeding must cause themselves to be connected with the first action instituted, and the court will regulate and distribute the josts between co-complainants in. such proceedings, as may be equitable. It was irregular and against the equity of the statute, for the libellant Sanborn, after he was aware that a suit for wages for the voyage was in preparation to be immediately commenced by others of the crew, to attempt to supplant their action, and to place the business in the lands of his proctor alone, by getting his process on foot a few hours in advance of theirs; and as such proceeding was unnecessary and in his own wrong, it must be at his individual expense. He was also apprised that a fund was ready for the satisfaction of his wages; and after such notice, the commencement of a suit against the vessel by him singly must be deemed needless and vindictive, unless clear proof is given that it was indispensable to the protection of his interests, or that he had given previous notice that he would not await the proceedings of his shipmates. These steps might have given him color of claim to costs; but then he would acquire it only in case of unreasonable delay on the part of the others to prosecute their action.
The co-libellants of Sanborn, made such upon their own petition, after both 'suits were commenced against the ship, have no equity to costs. Not only were they equally bound with Sanborn to. unite in the suit instituted and then in progress, in the name of others of the crew, or at least to have made a demand of payment out of the funds in the hands of Mr. Sturtevant, but their proceeding was manifestly vindictive, and with intent to create costs and to oppress the master and, owners. They employed the same proctor to commence individual actions in personam against the- master, and filed their several libels, and sued out process therein, and before the return day irregularly caused returns to be made by the marshal that the defendant could not be found, and thereupon procured themselves to be associated with Sanborn in the action against the vessel.
As the decree to be made in the cause will provide for payment of the balance of wages actually due to the libellants in this cause, though without costs, it is necessary to advert to the counter-claim or charges against those wages set up by the claimant.
The libellants received payments on account of their wages, while the ship was in foreign ports, which were made to them in five-franc pieces, each being reckoned as a dollar; and they insist that they should be charged with these pieces only at the valuation of ninety-three cents each, that being their value in the United States, by the act of June 25, 1834 (4 Stat. 681). The libellants had a right to receive their wages in American coin or its equivalent, whether paid them abroad or at home, if the master was bound by contract or act of congress to make the payment at the time, — -the shipping contract being in that currency. It was stipulated by the articles that the crew should not be entitled to their wages, or to any part thereof, until the arrival of the vessel at her last port of discharge, and the delivery of her cargo. That was to be in an American port. Payments made to the libellants during the voyage would therefore be chargeable to them at the value of United States currency there, the mutual act of the parties being tantamount to an assent to make and receive payment abroad.
The five-franc pieces paid the libellants abroad, are accordingly to be credited to the ship, in making up their accounts, at the relative value of that coin to the American silver dollar, at the time and place where it was received by the seamen. That is. the crew were entitled to so much local currency as would procure at the place the American currency due them.
In respect to the claim for hospital moneys paid by the ship, whatever the sum may be, nothing can be charged the libellants therefor, beyond the amount fixed by law at the time of the payment. This is a compulsory tax charged upon them by positive law. Any sums paid by the master or owners exceeding that amount, must be his or their loss.
The decree will be that the libel be dismissed, but without costs. Por the claimant not having made tender of wages to the libellants or paid them into court, and hav*964ing unnecessarily defended tlie action by answer and claim, when the interposition of the court to stay the suit of the libellants, and to compel them to await the decree in that already in course of prosecution in behalf of their shipmates, could have been had on motion or petition, no costs can be awarded in their favor.
The action brought by the libellants will be regarded as tantamount to a petition upon the fund brought into court by the other two actions pending concurrently with this against the ship.
A reference to a commissioner is ordered to ascertain the balance of wages due to the libellants respectively, upon the principles before declared, with interest thereon from December 28, 1847; (unless the amount can be settled by agreement;) and on the coming in and confirmation of the report, a decree may be entered for the payment of the amounts reported due, out of the proceeds of the vessel in court.