THE ENRIGHT

157

successful in his suit, will ripen into an absolute right. In the distribution of the funds which form a residuum in the registry, courts of admiralty recognize legal titles, and legal and equitable liens. I think, therefore, though there is no precedent, Or case is presented where this court should pause in the execution of this judgment until the termination of the suit in equity. Let the judgment be amended by adding: ."But it having been properly called to the attention of the court that an equitable action is pending for the determination of the title to the claim or interest of the said Lipperts, so far as relates to the amount adjudged to him, it is ordered, adjudged, and decreed that the execution of the judgment be postponed until the further order of this court."

THE ENRIGHT.

(District Oourt, N. D. Ohio.)

RAIIlING SUNKEN VEIlIlEL-LmN.

Where a party contracted to raise 8 sunken IlCOW for a certain amount of money, hold her up for a certain amount per day. and pull her out for 8 certain stipulated price, and the contracts were severally performed in the time stip. ulated, no part of the service thus performed was salvage service. but should rank for lien with repairs and supplies.

Libel for Salvage Service.

'Robison ef; libellants. John F. Weh, for defendant. '
WELKER, D. J. The defendant, on the seventeenth day of October, 1874, loaded with stone at Clough's dock, five miles from Blaclk River, for Toledo, and started on her trip. After getting a few miles out the weather became inclement. She began to leak, her pumps were used, and the master decided to put into the port of Black River. In going in th()vessel struck the pier, but got in, the pump being used until she reached the dock, a few minutes after reayhing which, in consequence of her leaking condition, she sank in 12 or 14 feet of water, all of which occurred on the day and evening of the aforesaid date. On the nineteenth day of October, 1874, the libellant and the master and owner entered into written contracts to raise the vessel, and draw her upon the bank of the river for stipulated amounts, towit, $675 to raise her, $50 per day for holding her up, and $200 for pulling her out. The contracts were severally performed by the libellant in the time stipulated, and the evidence showed that the

'158

FEDERAL, REPORTER.

vessel was not in the way of the navigation of the river, and would not have been materially damaged if she had remained in the river umil the spring following. Held: (1) That no part of the service thus performed was salvage service, and thereby superior to seamen's wages. (2) That it was contract service, and should rank' for lien with repairs and supplies. 1)ecree accordingly.

THE

ORmNT.

(Circuit Oourt, 8. D. New Yark. August 18, 1881.'
DEOREE-OmSSIONS m-REvERsAL.

Where there was a stipulation that the intervenors should pay all costs and expenses which should be awarded against them, and the final decree awarded the intervenors, notwithstanding there was a defino costs oJ expenses ciency in the proceeds to pay all the costs and expenses, the decree must be reversed.

Beebe, Wilcox If Hobbs, for libellants.

E. D. McCarthy, for intervenors.

BLATCHFORD, C. J. The stipulation of November 1,1879, was that the intervenors should "pay all costs and expenses which shall be awarded against them by the final decree of this court, or, upon appeal, by the appellate court." The final decree of November 29, 1879, in the district court, gave a recovery for $749.68 to the libellants against the steam-boat Orient, which amount included certain costs, taxed in favor of the libellants at $127.20, (that amount including fees of proctor, clerk, and commissioner,) and the fees of the marshal, taxed at $251.49; but said final decree awarded no costs or expenses against said intervenors. It ordered that out of the moneys in court the clerk first pay the cost of the officers' court, and then pay the balance on account of the amounts decreed to the libellants. On the face of it it contemplated a deficiency by using the words "on account of." It was known to all parties that the proceeds in court were $615, and that there must be a deficiency of $144.38; yet there was no award for costs, or for any part or the whole of the deficiency, against the intervenors. The decree must be taken to have been made with knowledge of its provisions and effect. It was not appealed from, and was acquiesced in. If it was erroneous or inadvertent the libellants should have had it corrected