'wlriehMedynski assured hitnthat he need have no am:iety abOut the payment'of his claim. And Koehler states he told Mtldynski Of Carsuppose there be a doubs 'ter'slclaim' before he upon-this point, ,then would the fact that no proceedings were insti'tuted by the libelant against the Doat during the season of 1877, and not until May 8;'18'18, waive ot destroy the lien' which originall, ensted? I do not think it would. In March, 1817, Medynski purchased five-sixteenths ·of the tug; he did not purchase the remaining elewn.isixteenthsunti1:April, 1878; and such delay as this has never .bee'l'1' considered as depriving who'had rendered service on .board, of a vesselof'the lien which the maritime law gives him· .The decree of the district court will therefore be a.ffirmed.
f '. '., . ,
«(JirtJultOourt,N.: D. lllmoi,.
November 18, 1882,)
When an appeal is taken from a decree in admiralty, it suspends the decree oUhe district.court, and the case proceedscU novo in the circuit court, and the , libelant is the actor baving the affirmative, and n).ust mak ll out the allegations of his libel, and the court may allow amendments to, the pleadings.
Additional testimony may be take on both sides in the circuit court, and the court may protect the rights of the parties where amendments' are allowed. Where the claimant became the purchaser of a vessel while she was in the custody of the marshal for the very bill of supplies in controversy in this . case, furnished at 8 foreign port on her credit, to render her seaworthy and competent to proceed on her voyage, he is not entitled tc> the protection sometimes accorded to a purchaser for value and without notice of maritime liens thereon.
,. VESSELS-ill CUSTODY OF MARSHAL-PURCHASER.
In Admiralty. Appeal from the district court. M'r. Kremer, for libelant. Mr. Oondon, for defendant. DRUMMOND, C. J. The libel was filed in the district conrt on the wentieth day of January, 1882, which alleged that in July, 1880, the Ii belant had furnished to the schooner, while lying at the port of Buffalo, certain supplies, in order to render her seaworthy and competent to proceed on her voyage,these supplies being furnished at the reqnest of the schooner and on her credit, the master not having money or oredit to purchase them. The libelant further alleges there was a
THE ,MORNING 'ST'ABi.';
balance dire ;for thesupplies'fw-nished of $1,421.44. On February .... 25, U,82, the claimant, MorrisR. Hunt, filed an exception in the district court alleging "that he is the owner of said'schooner Morn-' ing Star, with her boat, tackle, apparel, and furniture jthat he excepts to said libel, and alleges that the said cla.im'stated ins8,id,libel is not a lien on said vessel, and that ,the same is'stale, and'oot en.. ' forceable against her in the hands ot1orownedby claitnant(who is a, bona fide purchaser for value." On a hearing before the mstrictcourt the exceptions were overruled, and the elaimant required: toanswet the libel, on failure of which the court entered It decree in favor of the libelant for the amount due, from whioh decree the claimant has taken an, appeal to this court,and now moves to amend the excep-' tions in order to show when he became the purchaser of the schooner, and thereby to raise the question. whether or not he is a bonafide owner, so as to relieve her from the maritime lien set up in the libel. The general rule is that when an appeal is taken from a decree in admiralty it suspends the qecreeof the district court, and' the' case proceeds de novo in the circuit court. The libelant is, as he 'was in ' the district court, the actor in the case. He,still has the affirtnative, and must make out the allegations of his libel; and there can'be no doubt that it is competent for the cl,>urt ,to allow amendments to the pleadings-either to the libel or to the answer-in order that the case may be properly heard'anew in the circuit court. It is also Ii matter of every-day practice for additional testimony to be taken On botli" sides in the circuit court, ,and that testimony may entirely change the case as it stood befOTe the district court. It is also competent for the circuit court to protect the rights of parties where a.mendments are allowed to the In this case the claimant reTied upon his exceptions, and no proof was offered, and he has brought the case to this court upon the ruling of 'tbe district court, which held that the exceptions were not sufficient. The subject of costs is always in the control of the court, whether a decree be given for'the ' libelant or for the defendant. There does not seem to be any case cited by counsel which is precisely like this, but I am inclined to think that it is within 'the ciple of some ot the cases cited by the counsel of the claimant, 'arid that it is not an unreasonable exercise of the discretion of the court to l1110w the amendment which is sought to be' made in this case. Therefore, I shall permit it to be filed; but I must impose conditions upon the claimant, and hold that, as a condition upon which amendment is allowed, the costs of the district court shall be
paid. The decree of the district court, as it stanns upon the plead. ings, I think was right. The claimant seeks by an amendment of the pleadings to present the case in a different aspect to this court, which may, perhaps, show that the decree of the district court should not be permitted to stand; and in order to receive that favor, it seems to me that he should pay the costs of the district court. If, upon proceeding further in. this case, he shall succeed in making out his defense, then he would be entitled to the costs in this court. I allow the amendment. I would suggest to the counshall, sel that he had better make the amendment in accordance with the exact facts in the case,. so if he wants to make it a question of law, it. will fairly arise upon the exceptions, and render any proof on either side unnecessary.
(January 80, 1883.)
In fl.6cordance with the leave granted by the court, the claimant in this case has filed an amended exception, in which he alleges that; he became a bona fide owner, for a valuable consideration of said schooner on or about February 25, 1882, and that the demand set forth in the libel is not enforceable in admiralty against said schooner in the hands of and owned by the claimant. . A. monition issued. on the same day that the libel was filed, and the marspallevied the same on the schooner on that day. On March 3, 1882, the claimant gave the requisite bond, and the schooner was released from custody. It therefore appears by the record in this case that at the time the claimant purchased the schooner she was in the custody of the marshal, held under the bill for supplies furnished in ·this case, those supplies being furnished in July, 1880; some pay· ments having been made on the same,; as shown by the libel, as· late as October 15, 1880. The remaining part of the season of naviga. tion of 1880, from October 15th, and the whole 'Of the season of 1881, were permitted to pass without any attempt to enforce the lien; and, as already stated, the libel was not filed in the district court until the day of January, 1882, and the question is whether from delay the lien of the libelant was gone. I am of the opinion it was not. It is not necessary for the court to decide in this case what would have been the effect of that. delay, provided, within the meaning of the law, the claimant had become a bona fide purchaser of the schooner; but it seems clear that having made the purchase when
THE RED WING.
the schooner was in custodia legis for the very bill of supplies in controversy in this case, that he could not acquire a title as a bona fide purchaser against the libelant. At that time the schooner was in the custody of the marshal to answer for the supplies furnished in this case, and I think the claimant is, therefore, not entitled to the protection which is sometimes accorded to purchasers of vessels made for value, and without notice of maritime liens against them. A decree will, therefore, be rendered for the libelant.
THE RED WING.·
(Disf?'iet (foure, E. D. Missouri.
December 6, 1882.)
A party furnishing a vessel with supplies at its home port on credit fs not entitled to an admiralty lien upon the '.. essel, except WlIcre a hen is given by a local statute.
Where II state 8tatute gives a lien for supplies furnished at 8 home port, a lien for supplies so furnished will be enfurced by a court 01 a<llllll'alty I but unly when it comes strictly within the terms of the statute.
3. TD1E WI'l'HIN WHICH LIEN MUST BE ENFORCED.
Where the state statute prescribes a: time within which the lien must be en- ' forced, if at all, the limitation will berecognizcd by the federal court. Where, at the time a lihel is filed against a vessel in a court of admiraity, the vessel is in the custody of a state court, the libelant cannot enforce his process by seizure until the custody of the state court ceases.
WHERE VESSEL IS IN THE OUSTODY OJ>' .A STATE OOURT.
5. SAME-LIMITATIONS-EFFECT OF OUSTODY OF STATE OOURT.
Where a lien for supplies furnished a vessel at its home port was, by the terms of the statute conferring it, only enforceahle within nine months after the supplies were furnished, and the vessel to which they were furnished was during the whole of the prescribed period in the custody of a state court, held. that the fact of such custody did not enlarge 01' suspend the operation of the state statute.
Given Campbell, for libelant. James Taussig and George A. Madill, for claimants.
TREAT, D. J. The libel is for supplies furnished in a home port. Under the state statute a lien existed therefor, to be enforced within ... nine months. More than nine months passed before the libel was filed. It appears that the defendant vessel was owned by a corpora-
'k-Reportel1 by B. F Rex, Esq., of the St. Louis bar.