THE DANIEL KAINE.
tion of its meaning, nor is there any rule of law, or any known authority, which sustains it. The statute requires proof of a contract by one of the persons named in it, and does not establish a lien on mere proof that the supplies were taken on board of and used by the boat. The Chelmsford, 34 Fed. Rep. 399. Prior to the passage of the statute, no lien existed in New Jersey for supplies to a domestic vessel. The statute confers a lien on certain conditions, and it is only when these conditions have been performed that the lien attaches. The statute does not create a maritime lien, and there can be no presumptions in favor of the specific lien which is conditionally given to the material-man. The presumptions are all the other way, and the burden is on the libelant to prove that a contract was made with him by one of the persons described in the statute. Contracts made by such persons, and by no others, for supplies, provisions and stores, will bind the vessel. The admission of the ,eook that he personally owes the libelant a small balance for meat and groceries with which he fed the crew does not affect the question; nor does the fact that libelant headed his account with the words "Charged .to the W. A. Levering," dispense with the necessity of proving that he was legally authorized to make such a charge. Besides this, the libelant's "books" are open to serious objections from the manner in which they appear to have been kept and made up. There is reason to believe-at least to suspect....,...that the entries in each book were all made atone time. with the same pen and ink, and by the same writer. The books are neat and unsoiled, bear no marks of having been in rlaily use, and contain no other accounts than those against the tug. Let a decree be entered dismissing the libel, with costs.
THE DANIEL KAiNE. JAMES DALZELL'S SON
& Co., Limited, et ale
(Dutrict Court, W. D. Pennsylvania.
May 29. 1888.)
BHIPpma-,..-OWNERsHIP IN VESSEL-PARTNERSHIP.
The running of a steam-boat on sharee does not make the owners partners in respect to the vessel itself.
MARITIME LIENS,,"""ADVANCES-Bv PART OWNER.
Where a steam-boat is not partnership property. but her part owners are tenants in common simply, one of them has no lien upon the share of another for advances. Nor does it make any difference that the partner making suchladvances was also the master of the vessel.
4. BAME-E,mcUTION-FROM STATE COUR'l'-LEVV AND LIEN. After seizure of a steam-boat bythe marshal upon process in admiralty and a decree of condemnation, but before sale. a writ of fl. fa. issued out of the state court UpOl) a judgment against one of the part owners of the vessel, and was put'in the hands of the sheriff. In the diatribution of the proceeds of theinarshai1s ssle, held,that.as against the defendant in the execution, tLll
acquired a tienas ,soon 8S his writ reached the sh,eriff's hands, and that. after satisfaction of all admiralty liens and liens of domestic creditors for supplies. etc., under the local statute, the execution creditor was entitled to the defendant's remaining share of the surplus.
In Admiralty. Sur exceptions to the commissioner's report. Wm. L.Rird, for the steamer Twilight. Knox &: Reed and Miller &: McBride, for R. W. Cowan. John S. Fe1'gU801/" for James Lynn. George Shiras, Jr., and A.L. Large, for Joseph Payne's administrators. Charles C·. Dickey, for sheriff of Allegheny county. John F. Edmundson and E. P. Douglass, for J. G.Leezer. ACHESON, J. This is a contest over the surplus in the registry of the oourt from the sale of the steam tow-boat Daniel Kaine, after satisfaction of all maritime liens, and the liens of domestic creditors, for supplies, etc., under the state statute. . The commissioner allotted the fund to the several owners of the vessel, according to their respective shares in her. Objeoting to this appropriation are-First, the owners of the steamer Twilight, who hold a promissory note signed, "DANIEL KAINE, and owners," and given by the master of the boat; second, R. W. Cowan, one of the owners of the Daniel Kaine, who asserts a lien for advances and disbursements made by him, and also for his wages as master of the boat; and, third, execution creditors of James Lynn, one of the owners oftha boat. L The service rendered by the Twilight being a home service, aJ?d not embraced within the state statute, the commissioner,! think, was clearly right in holding that the note given therefor was not a lien on the boat, and hence not payable out of the fund in the registry of the court. The Edith, 94 U. S. 518. 2. The burden of proof is upon Capt. Cowan to establish the allegation contained in his petition, but which is denied in the answer thereto, that the shareholders in the Daniel Kaine were not tenants in common, ,but partners in respect to the ownership of the vessel. 3 Kent, Comm. *155. Has he in this? The evidence bearing upon this point is as follows: The boat was built by James Lynn, George T. Miller, and R. W. Cowan, who from the first held her in defined shares,Lynn .and Miller each owningseyen-eighteenths, and Cowan owning foureighteenths. Thus was the boat enrolled on February 8, 1882. Spf'aking of her enrollment, Capt. Cowan testifies: "There was no other agreement among' us than that the boat should be as set out in the registry." Ih April, 1886, George T. Miller transferred his in the boat to George B. Kaine. Capt. Cowan further states that there was no written agreement between the owners of the boat as to how she was to be operated, nor any verbal agreement that she was to be run or ope,..ated in partnership. However, it seems that, by the tacit oonsent of all the owners, she was run on joint account. Her employment was in the towing of coal, and at first she was principally engaged in towing for two coal firms, in one of which Lynn was a member, and in the other
and George T. Miller & Co. The bookMiller, viz. James Lynn & keeper who. kept the books of the boat made out and furnished annually owners balance in which the cost of the boat apto the peared Rf'l an item. Do these facts establish that the shareholders in the Daniel Kaine were partners in her ownership? I think not. That the cost of the boat appeared in the balance sheets which the book-keeper made out is not a controlling circumstance! and, indeed, is a matter of little moment. when considered in connection with Capt. Cowan's testimony, above quoted. According to the enrollment of the her part· owners were tenants in common, and there was rio different or other agreement as to ownership. An agreement to run a ship on shares does 2 not make the owners partners with respect to the vessel. The Curt. 434:. Says Chief Justice GIBSON, in Hopkins v. 14 Pa. St. 38: "Carriers may doubtless become partners, but not merely by becoming joint owners ofachattel, and using it for a common purpose. And the prinCiple is peculiarly applicable to ships or other craft, the exceptions to it in respect to them being always founded in very special cil'cumstances." Now, where the vessel is not partnership according to the clear weight of authority in this country, one part owner has no lien for his advances and disbursements upon the share of his co-owner.' The Gilp. 457; Met'rillv. 6 Pick. 46; Macy v. De 3 Woodb.& M. 205; The supra. Nor does it make any difference that the part owner making such advances was also the ship's husband. Macy v. De Wolf, supraj The supraj Hopkins v. lfUpraj White·v. 19 Fed. Rep. 848. In treating of this subMr. Justice in tbe case of The Larch, after remarking that in England the law is now settled against the existence of the said: "There has been some diversity of deCision in this country, but I think it has proceeded from diversity in the views taken of the particular facts of the cases, ratberthan from any real difference in principles. That the owners of a vessel lllay becopal'tnel's in respect to that as well as any other property, and. that., when they are so, each has a lien, cannot be doul.Jted. But where no such special relation exists, where they are merely part owners, and as such teimnts ill common, that one has no lien on the share of another for advances, I believe to be equally clear." In so far the state statute gave Capt. Cowan a lien for his wages as master, the allowed his claim, and beyond that it is clear he had no is not entitled to payment out of. the in question. The 11 Pet. 175; The Edith, llUpra. Having tbus reached the co:nclusion that Capt. Cowan had no it is not"neCeBsary to consider the objection made to the lfllowance of his by. a court of admiralty based on the unf:\ettled and disputed conditio:n ofilie accounts between the owners of the boat. 3. By virtue of the writ of attachment issued in this the mnrthe Daniel Kaine on February 15, 1887. 'rhere was a decree ofcoJ;ldlIDlnation 01). March '188,7, and the marshal sold the boat
on March 14, 1887. Upon two judgments against 'James Lynn, indio vidually, obtained in the court of common plllas of Allegheny county, one in favor of Joseph Payne, administrator of Andrew Finney, deceased, and the other in favor of J. G.Leezer, writs of fl. fa. issued after the seizure ofthe Daniel Kaine by the marshal, but before her sale. The Payne execution (fl. fa.) was issued on March 3, 1887, and was received by the sheriff the same day at 4:15 o'clock P. M. By the return of the sheriff to this writ it appears that on March 7, 1887, he "levied upon all the right, title, !lnd interest of the defendant in steam-boat Daniel Kaine in the hands of United States marshal, and gave notice to United States Marshal Miller of said levy, and made claim upon proceeds of sale of boat." The Leezer execution (fl. fa.) was issued, and came into the sheriff's hands on March 4, 1887. Upon the Leezer judgment there was also issued a writ of execution attachment, which was served on the marshal on March 12,1887. As, however, the Payne execution is sufficient to exhaust the whole share of Lynn in the fund in the registry of the court, and by reason of its priority in time it is entitled to preference over the Leezer writs; nothing further need be said in respect to the lair terwrits. ' Such being the facts, the que:;ltion now to be determined is, what right, if any, the plaintiff in the Payne execution acquired as against James Lynn by virtue of the proceedings in the state court. , Did he thereby secure a lien against Lynn's interest in the boat? It cannot be maintained that the attachment by the marshal, or the decree of condemnation, or both, in themselves and without more, operated to extinguish the title of James Lynn. Subject to the special property which the marshal had acquired by his seizure, and the rights of the libelants, Lynn's interest in the boat remained in him. Certainly, he might have made a voluntary transfer of his remaining interest. Was it, then, beyond the reach of his execution creditor, whose judgment was in the state court? It is, indeed, undeniable that this court had obtained exclusive jurisdiction over the vessel for all the purposes of the suit whioh had been here instituted, (Heidritter v. Oil-Cloth Co., 112 U. S. 294, 5 Sup. Ct. Rep. 135;) and it is not to be doubted that property once attached or levied on is in the custody of the law, and is not liable to be taken by another execution in the hands of a different officer, especially if that officer is acting under a different.jurisdiction, (Hagan v. Lttcas, 10 Pet. 400; 'l'aylor v. Carryl, 20 How. 583; Freeman v. Howe, 24 How. 450.) It will be perceived, however, that the sheriff's levy here did not involve the disposition or control of the property. It was made in manifest dinntion to and recognition of the right of the marshal to hold and dispose of the vessel. . Nor was actual seizure necessary to give efficacy to .the sheriff's levX, as it was made, not upon the res itself, but merely upon the defendant's interest. Srodes v. Caven, 3 Watts, 258; Welsh v. Bell; 32 Pa. St. 13. But the execution creditor here need' not stand on the sheriff's Jevy. In Pennsylvania a fl. fa. binds all the defendant's personal property in the bailiwick, whether there is a levy or not; and the lien attaches from the time the writ is put in the sheriff's hands. Dun-
can v. McCumber, 10 Watts, 212. The issuing of the execution from the court of common pleas was not an interference with the marshal, and in nowise tended to bring about a conflict, of jurisdiction. What good reato this execution creditor the benefit of a son, then, is there for lien? In Heidritter v. Oil-Cloth Co., supra, the court noticed and carefully distinguished between the proceedings in the state court for the purpose of declaring and efltablishing the mechanic's lien, and the subsequent proceedings involving the sale of the property, the latter only being adjudged void. In Bayard v. Bayard, 3 Clark, 155, (foot paging 261,) we have a decision by the United States circuit court for the Eastern district of Pennsylvania, sustaining the lien of executions from the state courts against property in the hands of the marshal. The case was this: After goods bad been levied on by the marshal under several writs of fl. fa. from the circuit court, writs of fl. fa. against the same defendants were issued from the state courts, and put into the hands of the, sheriff. Subsequently another fl. fa. was issued from the circuit court, and was delivered to the marshal. In the distribution of the proceeds of the marshal's sale-the sum realized being insufficient to satisfy all ' the e:t.ecutions-it was held that, after satisfying the prior circuit court, executions, the money should be applied to the executions from the state courts in preference to the later execution from the circuit court. The principle decided was that, while the sheriff could not disturb the marshal's possession, still the fl. fas. from the state courts, upon delivery to the sheriff, bound the defendant's interest, subject to the marshal's levy. The principle is applicable here. I am of opinion that the writ of fl. fa. issued UP01;l the.judgment of Joseph Payne, administrator, etc., against James Lynn, became a lien upon the defendant's interest in the towboat Daniel Kaine upon the delivery of the writ into the hands of the Bheriff of Allegheny county; and therefore, that said execution creditor is entitled to Lynn's share of the surplus in the registry of the court. Leta decree be drawn in accordance with this opinion.
THE DREW.' McDONALD 'IJ. THE DREW.
(Di8triet (Jourt, B. D. New York. June 11, 1688.)
COLLISION-VESSEL AT ANCHOR-STEAMER OUT OF USUAL COURSE-ABSENCE OF ANCHOR LIGIIT-CONFI.ICTING TESTIMONy-WEIGHT OF
Libellmt'sschooner K. was lying at anchor on the we8tern8ide of the Hudson, river at, night in the mid8t of a violent gale, when 8he was run into by the pa88enger 8teamer Drew, on her way down the river from Albany to New York. The evidence was very conflicting li8. to' the' existence of any anchor' . light burning at the time of the colli8ion, the for some reason
l&portedby: Edward G. ,Benedict, ESq_1 of the New York bar..