The decisions of this court have established the power of Congress to pass the law of limited liability, and of the admiralty courts to enforce it. Norwich & N. Y. Transp. Co. v. Wright, 80 U. S. 13 Wall. 104 (20:585); Rodd v. Heartt ("The Lottawanna") 88 U. S. 21 Wall. 558 (22: 654); National Steam Nav. Co. v. Dyer ("The Scotland") 105 U. S. 24 (26: 1001) 118 U. S. 507 (30:153); Place v. Norwich & N. Y. Transp. Co. "The City of Norwich") 118 U. S. 468 (30:134); Butler v. Boston & S. SS. Co. 130 U. S. 527 (32: 1017). This jurisdiction is exclusive. New York & W. SS. Co. v. Mount ("The Benefactor") 103 U. S. 239 (26: 351); Providence & N. Y. SS. Co. v. Hill Mfg. Co. 109 U. S. 578 (27:1038). "An appraisement made by the authority of this court is made with great care and perfect impartiality. Cargo Ex Venus, L. R. 1 Adm. & Ecc. 50; The Thales, 3 Ben. 327, 10 Blatchf. 203. If no application is made to have the appraisement set aside it is binding upon both parties. Williams & Bruce, Adm. Pr. 310; The Mellona, 3 W. Rob. 16; The Margaret, 2 Hagg. Adm. 275. note. Where there is a mistake as to the amount of damage the mistake may be corrected, and the ship rearrested. The Hero, Brown & L. 447; The Corner, Brown & L. 161. So where the sureties have become insolvent or any other good reason is given for such action. The Virgo, 13 Blatchf. 255; The City of Hartford, 11 Fed. Rep. 89; The Fairport, L. R. 8 Adm. Div. 48, 55; The Freedom, 3 Adm. & Ecc. 495; The Flora, 1 Adm. & Ecc. 45; United States v. Ames, 99 U. S. 35 (25: 295). The stipulation in admiralty is a substitute for the thing itself. United States v. Ames, supra; The Palmyra, 25 U. S. 12 Wheat. 1 (6:531); The Wanata v. Avery, 95 U. S. 611 (24:464); The William H. Webb v. Barling, 81 U. S. 14 Wall. 406 (20: 774); Ex parte Slayton, 105 U. S. 451 (26: 1066); The Anna, 47 Fed. Rep. 525. 18] *Mr. Justice Blatchford delivered the opinion of the court: On the 24th of July, 1892, between 8 and 9 o'clock A. M., a coliision took place between the steam yacht Alva, at anchor on Nantucket Shoals, in Vineyard Sound, and owned by William K. Vanderbilt, of the city of New York, and the freight steamship H. F. Dimock, running regularly between Boston and the city of New York, and belonging to the Metropolitan Steamship Company, a Massachusetts corporation. The collision occurred during a thick fog, and, as a consequence of it, the Alva sank. On the 16th of August, 1892, the steamship company filed a libel and petition in the District Court of the United States for the District of Massachusetts against Vanderbilt, as owner of the Alva, in a case of limitation of liability, civil and maritime. It set forth the particulars of the collision and the sinking of the Alva, denied that there was any want of care on the part of the Dimock, and averred that the collision, and the damage occasioned thereby, were caused by the carelessness and incompetence of those in charge of the Alva, and their negligence in anchoring where they did; that the Alva was claimed to be worth over $250,000, which was greatly in excess of the value of the Dimock and the latter's freight then pending, that being less than $150,000; that the petitioner denied and contested its liability, and that of the Dimock, for any loss or damage suffered by the Alva or her owner, or by any persons on board of her, but feared that suits or libels might be brought against the petitioner, or the Dimock, and damages be claimed in excess of the value of the Dimock [19 and her freight then pending; that the petitioner claimed the benefit of the limitation of liability provided for in SS 4283 and 4284, chapter 6, title 48, of the Revised Statutes of the United States, and that, if the court decided that any damage was occasioned by the negligence of the Dimock, or those in charge of her, for which the Dimock was liable, the petitioner claimed that its liability as her owner should be limited to the value of the vessel and her freight pending at the time of the collision. The prayer of the libel and petition was (1) that the court would cause due appraisement to be had of the value of the Dimock on the 24th of July, 1892, and of her freight then pending, and would make an order for the giving of a stipulation, with securities, for the payment of the same into court whenever it should be ordered; (2) that the court would issue a monition against all persons claiming damages for loss occasioned by said collision, citing them to appear before the court and make due proof of their respective claims before a day to be named in the monition: (3) that the court would designate a commissioner, before whom such claims should be presented in pursuance of the monition, to make report thereof to the court; and that the petitioner might be at liberty to contest its liability, and the liability of the Dimock, for all such loss, independently of the limitation of liability claimed; (4) that the court would make an order restraining all persons from prosecuting suits against the petitioner and the Dimock, except before such commissioner and in the proceeding thus instituted, and that if, upon the coming in of the report of the commissioner and its confirmation, it should appear that the petitioner and the Dimock were not liable for such loss, it might be so decreed; (5) that if the court should decree that any person or persons were entitled to maintain claims against the petitioner or the Dimock, on account of any loss by the collision, it would also decree that the liability of the petitioner should in no event exceed the value of the Dimock and her freight pending at the time of the collision, and that the petitioner and the vessel should be forever exempt from all further liabilities in the premises, that the moneys secured to be paid *into court, after paying costs and ex [20 penses, should be divided pro rata among the several claimants in proportion to the amount of their respective claims, and that in the meantime, and until the final judgment of the court, it would make an order restraining the further prosecution of any suits against | tice at the court house in Boston. The marthe petitioner or the Dimock in respect of any such claims; and (6) for other relief. On the 25th of August, 1892, the libel and petition was amended by adding an averment that, at the time it was filed, the Dimock was, and ever since had been, lying in the port of Boston, and within the admiralty jurisdiction and process of the district court. On the 16th of August, 1892, the district court for Massachusetts issued a warrant to the marshal of the district, directing him to cause the Dimock and her pending freight to be appraised on oath by three appraisers named in the warrant to be duly sworn. The appraisers made oath before the clerk of the court that they would appraise the vessel and her pending freight according to their best skill and judgment. On the 17th of August, 1892, the three appraisers reported to the court that, after a strict examination and careful inquiry, they estimated and appraised the Dimock at $80,000, and her freight pending at the time of the collision at $2,395.33. shal made return, on September 2, 1892, that he had advertised the monition three times, ou August 19 and 26, and September 2, in the designated newspaper, had posted a copy of it in the court house at Boston on August 19 and on the same day had given a further notice to Vanderbilt, by mailing to him an attested copy of the monition, by registered letter, to his house at Newport. On the 17th of August, 1892, the district court also made an order enjoining Vanderbilt and all persons claiming damages for any loss arising out of the matters and acts alleged in said libel and petition, from prosecuting any suit or suits against the libelant or petitioner, as owner of the Dimock, or against that vessel, in respect to any claim or claims arising out of said collision, "except in these proceedings." On the 20th of August, 1892, a deputy of the United States marshal for the district of Massachusetts meiled an attested copy of such *restraining order to Root & Clarke, at- [22 torneys for Vanderbilt, at New York. On the latter day the court made an order On the 30th of September, 1892, Henry Morsetting forth that, whereas it appeared that rison, who was the master of the Alva, and "due appraisement" had been had of the on board of her at the time of the collision, amount or value of the interest of the petition- filed a libel in the District Court of the United er in the Dimock and her pending freight at States for the Southern District of New York, the time alleged in the petition, and the value against the Metropolitan Steamship Company, thereof had been found to be as stated in the the Dimock, Vanderbilt and all persons claimreport, and ordering that the petitioner give ing damages against that company or the Dimproper stipulation, with sureties, for the pay-ock by reason of said collision, in a cause civil ment into court of the sums named, whenever and maritime, of apportionment of limited the same should be ordered. On the same day, liability pursuant to § 4284 of the Revised a stipulation was filed, signed by the petitioner Statutes. The libel set forth the particulars and by two suretics, each of whom justified in of the collision, and averred that it was not the sum of $200.000, which stipulation stated caused by any neglect or fault of the libelant, that the petitioner and the two sureties, "sub or of any of the persons on board of and havmitting themselves to the jurisdiction of this ing charge of the Alva, but was wholly due to court," bound themselves, their heirs, execu- the fault of those in charge of the Dimock, in tors, and administrators, jointly and severally, seven specified particulars. It averred that by in the sum of $82,395.33, unto William K. the collision the Alva and the personal effects Vanderbilt, owner of the Alva, and all other of Vanderbilt on board of her were totally 21]*persons claiming damages in the proceed lost; that Vanderbilt had sold the wreck at ings, that the petitioner should abide by all or- public auction for $3,500; that immediately ders and decrees, interlocutory or final, of the prior to the collision the yacht was of the court, and should pay the amount of its final value, at least, of $300,000, and the personal decree, and all sums that the petitioner should effects of Vanderbilt so lost were of the value be ordered to pay by such final decree, whether of more than $5,000; that Vanderbilt had notiin the district court, or any appellate court; fied the steamship company that he would hold and that, unless it should do so, the signers it responsible for the loss and damage so sufconsented that execution should issue against fered by him; that at the time of the collision them, their heirs, executors, and administra- the libelant had on board of the Alva pertors, jointly and severally, and their lands, sonal effects of his own, of which a list was goods, and chatteis, wherever found, to the given, amounting in value to over $1,300, value of the sum above mentioned, without which were wholly lost; that divers other perfurther notice or delay. sons had suffered losses and destruction of On the same day, the district court issued a property on board of the Alva by such colmonition to the marshal, commanding him to lision; that all of such loss and damage was give notice to Vanderbilt and to all persons without the privity or knowledge of the steamconcerned, of the filing of the libel or petition, ship company, and by law its liability did not and of its substance; to cite Vanderbilt and all exceed the value of its interest in the Dimock persons claiming damages for any loss occa- and her freight then pending: that the whole sioned by said collision to appear before the value of the Dimock, and her freight for the court, at Boston, on or before November 25, voyage she was making, was not sufficient to 1892, and make due proof of their respective make compensation to the persons who suf claims in the premises; to serve a copy of the fered loss by such collision, and they were by monition on Vanderbilt, if he should be found law entitled to receive compensation from the within that district; to give further notice by owner of the Dimock only in proportion to their advertising the same in a specified newspaper respective losses; that the value of the Dimock published at Boston, at least sixty days before at the time of the collision, and at the terminasuch return day; and to post a copy of the notion of the *voyage she was then mak- [23 ing, exceeded $200,000, and her freight then | never acquired jurisdiction or authority to issue pending exceeded $2,300, that the amount to the restraining order, on the grounds that the be apportioned among the several persons who Dimock had never been arrested by or surrenso suffered loss by such collision exceeded dered to that court, nor had any stipulation $202,300; that the Dimock had not been been given for her proper value, as a substitulibeled or arrested in any court to answer for tion for her, under Rule 54 of this court in adsuch loss, and her owner had not theretofore miralty, and because the appraisement probeen sued in that behalf; and that the Dimock ceeding was ex parte and without any notice of was then within the southern district of New it, or of the application for it, having been York, and subject to the control of the court given, or attempted to be given, to Vanderbilt for the purposes of the proceeding. or any other creditor, and because the appraisement was for less than one half of the value of the vessel, and that, therefore, the appraisement was not a "due appraisement," within Rule 54. The district court in New York held that the original ex parte appraisement and stipulation were not a finality, incapable of subsequent inquiry or correction by the court on due application; that it was com petent for the district court in Massachusetts to order a reappraisement and further security, upon application by any creditor, showing that the previous appraisement was mistaken and inadequate, and that the duty of the appraisers had been performed inadequately; that the matter fell *within the domain of practice, to be [25 regulated by that district court, in the absence of any express rule of this court, as the interests of justice seemed to demand; that, as Rule 54 of this court did not in terms require any notice to creditors of the original appraisement Under process duly issued on that libel, the and stipulation, the district court was not preDimock was attached by the marshal on Sep-pared to hold that the "due appraisement,' tember 30, 1892, in the southern district of New York, and on the 1st of October, 1892, in that district, process of monition was duly served by him on the steamship company; and on the same day proctors for Vanderbilt duly entered their appearance for him in the suit. The prayer of the libel was, that the court would proceed to establish the loss suffered in the premises by all persons who might make any claim of liability therefor against the Dimock or her owner, and would proceed in due course to ascertain the value of the Dimock and her freight then pending, and the proportionate amount of compensation for said matters which the libelant was entitled to receive from the owner of the Dimock, and to decree the payment thereof against either the Dimock or her owner, or both, as might be lawful and proper; and for further relief; that process might issue against the Dimock, and she be condemned and sold to pay said damages; and that the steamship company, Vanderbilt, and all persons claiming to have suffered loss by such collision might be cited in due form to appear and answer, and to prove their claims in that behalf. provided for by that rule, might not be, in the first instance, an ex parte one, to be supplemented thereafter, if unsatisfactory, by further inquiry on the application of a creditor; that the want of notice did not constitute a jurisdictional defect in the appraisement and stipulation, so as to render void the order for a monition and other subsequent steps in the cause, including the injunction against all other suits, provided for by Rule 54; that the prior proceeding in the district court in Massachusetts was valid, and the libel of Morrison was improperly filed; and that it should be dismissed. On the 1st of October, 1892, on an affidavit, and on all the pleadings and proceedings, the District Court of the United States for the Southern District of New York made an order for Morrison to show cause why his libel should not be dismissed as to the Dimock and the steamship company, and the process issued against the Dimock be set aside, and the steamship company have such other or further On the 17th of October, 1892, Morrison pre24] relief as might be *just. The motion of the sented to this court a petition for a writ of steamship company to that effect was heard on mandamus directing the District Court for the the papers mentioned, on additional affidavits Southern District of New York, and Judge on behalf of that company, ou a copy of the Brown, notwithstanding the matters contained record of the district court in Massachusetts, in the moving affidavits before that court, and and on affidavits on the part of the libelant; notwithstanding the proceedings in the District and on the 7th of October, 1892, the district Court of the United States in Massachusetts, court, held by Judge Brown, made an order to vacate the order of October 7, 1892, and to directing that the process issued on Morrison's reinstate Morrison's libel and proceed thereon libel be vacated; that the service thereof on the according to law. Accompanying the petition steamship company be set aside; that the are copies of all the papers in the suit of MorDimock be released and set free from the at-rison and of all the papers constituting the tachment; and that the libel be dismissed. The order further said: "This order is made upon the grounds and for the reasons stated in the opinion filed this day, to which reference is hereby made as a part hereof." record in the suit in the district court in Massachusetts. Judge Brown has made return to the order to show cause, and the case has been orally argued here by the counsel for both parties, and full briefs have been submitted to this court. In the opinion of Judge Brown, so referred to (The H. F. Dimock, 52 Fed. Rep. 598), it was The district court in New York disposed of held that Morrison had notice, before his libel the question before it on the merits, and diswas filed, of the proceedings in the district missed the libel. Although in its opinion the court in Massachusetts, and of the injunction court said that Morrison's libel was "improp order issued by that court on August 17, 1892. erly filed," yet the court did not refuse jurisThe opinion considered the contention of Mor-diction of that libel. On the contrary, it said rison that the district court in Massachusetts that the proceeding by Morrison to limit lia bility was in accordance with the provisions of § 4284 of the Revised Statutes. What it did was to hold that the libel must be dismissed on the ground that there was a *valid defense [26 to it, in the prior proceedings instituted in the district court for Massachusetts, which court had full jurisdiction of the cause. What it said was that Morrison's libel was improperly filed, because it was filed in violation of a valid restraining order, issued on the 17th of August, 1892, by the district court for Massachusetts. The district court in New York having dismissed the libel out of court, on a bearing of the case on the merits, we are now asked to direct it to vacate its order of dismissal, and to reinstate the cause, and to proceed upon the libel. This is in effect asking us to direct the district court to decide in a particular way the matter heard before it, which is never the office of a mandamus. Ex parte Morgan, 114 U. S. 174 [29: 185]; Ex parte Brown, 118 U. S. 401 [29: 676]. Moreover, the present attempt is one to use a mandamus as a writ of error, which cannot be done. Ex parte Des Moines & M. R. Co. 103 U. S. 794, 796 [26: 461, 462]; Ex parte Baltimore & O. R. Co. 108 U. S. 566 [27: 812]; Re Pennsylvania Co. 137 U. U. 451, 453 [34: 738, 739]. pending freight to a trustee, pursuant to § 4285 of the Revised Statutes of the United States; that it did not allege, in its original libel and petition, that the vessel was within the district of Massachusetts, nor pray any process against her, nor in any way surrender her to the custody of the said district court; that it did not offer, in case the court should adjudge the company to be liable to any extent for the collision, to pay the value of the vessel and freight into court for distribution; that it did not allege that any person except Vanderbilt suffered loss by the collision; that the order issued by the district court in Massachusetts, on August 17, 1892, was not a mere temporary restraining order, to last only until a hearing could be had, but was an absolute injunction, which contained no provision for a hearing of the damage claimants on the matter thereof, and did not purport to be made on notice and an opportunity to be heard given to any per son interested adversely to the steamship company; that the amendment to the libel was not made until August 27, 1892; that the Dimock was never attached by any process issued out of the district court for Massachusetts, and that court never took her into its custody or assumed control of her; that it appeared by affidavit that, after the libel in Massachusetts was ame. and before Morrison's libel was filed in the soutuern district of New York, the Dimock departed from the district of Massachusetts and was no longer in that district, or subject to the control of the court for that district, or within the reach of the process of that court, such departure being without any *obli. [28 gation to return the vessel into that district, and without any leave of that court obtained or sought; that the only thing left within the Massachusetts district to be divided among damage claimants, and subject to be disposed of by the decree of the court for that district, in the proceeding there pending, was the stipulation so given; that no notice of the appraisement proceedings, or of the stipulation proceedings, or of the injunction proceedings, was required by the court to be given to any damage claimant, and neither Morrison nor any other damage claimant had in fact any In No. 9, Original, the question involved is notice thereof or any opportunity to be heard as to the validity of the proceedings in the dis- thereon; that neither Morrison nor Vanderbilt trict court for Massachusetts. Morrison applies nor any damage claimant, had been served to this court for a writ of prohibition to the personally with process in the Massachusetts district court for Massachusetts, from proceed- district, or had entered any appearance in the ing further upon the libel and petition filed in Massachusetts court; that Vanderbilt had rethat court by the Metropolitan Steamship Com-ceived a copy of the monition and of the pany. The district judge has made a return 27]*to the order to show cause, issued on the petition for prohibition, setting forth in full the proceedings before recited, and stating that due appraisement was made of the Dimock and her freight, "according to the usual course and practice of the said district court in such cases, by three persons known to me to be persons of integrity, and of skill and experience in such matters; and such appraisement was duly made and returned." In addition to this, a mandamus is never granted where the party asking it has another remedy. Re Pennsylvania Co., supra. In the present case, it is claimed by Morrison that the jurisdiction of the district court in New York was in issue before that court. If so, the remedy of Morrison was by an appeal from the district court directly to this court, on the question of jurisdiction, under 5 of the Act of March 3, 1891, chap. 517 (26 Stat. at L. 827). If the question of the jurisdiction of the district court was not in issue before that court, then the remedy of Morrison, as against the order of the district court dismissing his libel, was by an appeal to the Circuit Court of Appeals for the Second Circuit, under 6 of the same Act. For the foregoing reasons, the prayer of the petition for a mandamus in No. 8, Original, must be denied. injunction order, but not within the district of Massachusetts, and not until after August 17, 1892; and that Morrison had not been served with any paper in the Massachusetts proceedings, either within or without the Massachu setts district. It is further contended that Morrison and Vanderbilt have been deprived of their remedy against the Dimock and her owners, and are confined to a proceeding to obtain a share of the amount mentioned in the stipulation; that It is urged for Morrison that, in the libel no court has power to give relief beyond a and petition filed by the Metropolitan Steam-share in that amount, because the Dimock deship Company in the District Court for Massachusetts, the company did not ask for the appointment of a trustee, or convey, or offer to convey, its interest in the Dimock and her parted from the jurisdiction of the district court for Massachusetts, and her owners never submitted themselves to the jurisdiction of that court by any offer to pay any sum in excess of that amount; that that result had been accomplished by a proceeding wholly ex parte, without actual or constructive notice, and without any opportunity for a hearing on the part of Morrison or Vanderbilt, or any other person adversely interested; that the appraisement, stipulation and injunction proceedings in the Massachusetts court, having been taken without any notice or opportunity to be heard given to the damage sufferers, were wholly without effect upon the rights of the latter, and did not destroy Morrison's capacity to sue, and did not discharge the steamship company or the Dimock from liability to be 29]*sued; that Morrison acquired by the collision a right to recover damages to some extent against the company owning the Dimock, personally, in any district court which could obtain personal jurisdiction of that company; that he acquired a right also to recover damages to some extent against the vessel, in any district court which could obtain jurisdiction in rem against her; that his right against the vessel is not a right of action merely, but is a jus in re and a property interest in her, of which he cannot be deprived without due process of law; that the limited liability Act did not take away or affect any such rights ex proprio vigore, as an exercise of the legislative power of the United States, but left such rights to be limited and qualified judicially by the courts; that after the collision, and before the company filed its libel in Massachusetts, Morrison, by virtue of that statute, had a right to prosecute an apportionment suit in any district court which could acquire jurisdiction in rem of the Dimock, and in personam of her owner, and of all known damage claimants, and the further right to have any such court adjudicate upon the questions (1) whether the company and the Dimock were liable to any extent; that is to say, whether the collision was caused by fault on the part of the Dimock; (2) if so, how much was the value of the company's interest in the Dimock and her freight for the voyage; (3) whether the aggregate losses of all the damage sufferers exceeded that value; and (4) if they did, how, or in what proportions, the amount of that value ought to be divided among the sufferers; and that the only ways in which the Massachusetts proceedings could have affected such statutory right of Morrison were (1) by destroying his personal capacity to sue; (2) by releasing the company and the Dimock from liability to be sued; and (3) by conferring upon the court in Massachusetts exclusive jurisdiction to determine those four questions, which were presented alike by the company's libel and by Morrison's libel. It is contended, also, that the "due process of law," guaranteed to every person by Article 5 of the amendments to the Constitution of the United States, implies, with reference to proceedings under the judicial power of the United 30] States, *notice of some kind, and opportunity to be heard, not only as a requisite, but as a prerequisite; that the rights of the damage claimants had never been submitted or subjected in any form to the Massachusetts court; that proceedings in court, of which the persons whose rights purported to be affected thereby had no actual or constructive notice, and in which they had no opportunity to be heard, were ineffective and were not judicial proceedings; that it could not be said that an opportunity to be heard would necessarily, and as matter of law, have been of no advantage to the damage claimants, for they might have convinced the court (1) that the appraisement ought to have been made on sworn testimony, with an opportunity to both sides to produce and cross-examine witnesses; or (2) that the experts selected were not competent or were not impartial; or (3) that the appraisers' report ought to have been rejected, because it did not show the plans on which they proceeded, or as of what time the value of the Dimick was taken, or because the appraisers did not personally examine her; or (4) that the stipulation should have been broad enough to cover not merely what the appraisers estimated to be the value of the company's interest in the Dimock and her freight, but also what the damage claimants asserted the value of such interest to be, so that, if, on final hearing, the issue tendered in the company's libel and petition as to such value was determined in favor of the damage claimants, the court would have some means of compelling the company to pay the adjudicated value into court for distribution; or (5) that the sureties on the stipulation were insufficient; or (6) the court might have been convinced that, for the reasons above stated, no injunction ought to issue, or else, only on condition that the company bound itself with sureties, to pay into court the value of its vessel and freight, as finally adjudicated, or that the rights of the parties could be more conveniently and justly determined by permitting the damage claimants to assert their claims in their own way, and allowing the steamship company to set up the apportionment proceedings as a plea, or that no injunction ought to issue until the value of the vessel and freight had been adjudicated, and paid into court, or secured to be paid. *It is further urged that the proceedings [31 in Massachusetts were not, as matter of law, equivalent to a transfer of the Dimick and her freight by the company to a trustee under 4235 of the Revised Statutes: that they were very far from being an equivalent in fact; that there is nothing in the statute which authorizes the owner of a vessel, in his option, either to transfer his interest in the vessel and freight to a trustee, or to pay into court the value thereof as determined by an ex parte appraise. ment, or which declares that it shall be a sufficient compliance with the statute on the part of the owner if he pays or secures to be paid into court the value so appraised, or which provides that after such payment all suits and proceedings against the owner shall cease; and that the act leaves the creation of a substitute in lieu of a transfer to a trustee, to a court which proceeds judicially. It is further contended, that the rights of the damage claimants against the company and the Dimock, arising out of the collision, remained precisely as they were before the compauy filed its libel and petition in Massacbusetts; that those rights were never transferred from the company and the vessel to the fund represented by the stipulation; that said fund cannot be regarded as the fund to be apportioned among the damage claimants, as it |