the argument that Qne of the defendants was an employe in the post-office at Millerton. Does section 5480 cover the case? I confess that the question has been to me one of some difficulty, but I have finally reached the negative conclusion. Acareful study of the language employed has conYinced me that it was not intended that this section should embrace every case where a letter promotive of, or connected with, a fraudulent design, may be sent through the post-office by the person engaged in or contemplating the fraud. As was said in Brand v. U. S., 4 Fed. Rep. 395, the scheme to defraud within the meaning of said section is one which is to be effected by the deviser of it opening a correspondence by mail, or by inciting some one else to open such correspondence with him. To constitute the statutory offense, then, something more is necessary than the mere sending through the mail of a letter forming part, or designed to aid in the perpetration, of a fraud. The scopeof the section was,considered in U. S. v. Owerul, 17 Fed. Rep. 72, 74, by Judge TREAT,Wh,O there: said: "It c.ppears to the court that the act was designed to strike at COlDmon schemes of fraud, whereby, through the post.office, circulars, etc.; are distributed, generally to entrap and defraud the un wary; and not the ()f commercial correspondence solely between a debtoralld creditor." And as showing that such was the true interpretation, a pertinent reference was made to the concluding clause of the section, which pl;ovides that the indictment may charge offenses to the number of three, when committed withitithe same six calendar months; but the court shall give a single sentence, apportioning the punishment especially to the degree in which the abuse of the post-office establishment cnters as an instrument in the fraudulentschetne. It will be perceived that the statutory offense is complete when the letter is placed in the post-office. But in the case in hand the fraudulent act was committed after the letter had been placed in the post-office, andCOllsisted in the misuse of the mailing stamp, whereby a false date was given to the post-mark. A penal statute is not to be extended by so as to take in doubtful cases. ' Whatever is not plainly within its provisions should' be regarded as without its intendment. The demurrer is sustained.
THE WYOMING. THE DACOTAH. BOSCHERT v. THE WYOMING. SAME v. THE DACOTAH.
(DiBfrict Oourt, E. D. E. D.
October 20, 1888.)
MARITIME LIENS-GOODS SOLD FOR SPECULA'rIVE PURPOSES.
There is 'no lien for salt purchased by the owners of a steamer to be taken to another port and sold upon speculation, the s,ame not having been,furnished as supplies. '. .'
A claim for merchandise. for which a steamer issued its bill of lading, but , .· whiqh it failed to deliver, may 1;Ie classified and paid as an affreightment claim.
8.S.urE.:-DoUBLE CHARGES OOL'LECTED FOR FREIGHT.
2. ' SAMlll-AFI!REIGH'tMENT ,C:t..A.lM6. ',' "., c ,
A claim for the amount which the s,teamer compelled the consignee to pay ipadditiQ.n to the price of transportation Which was agreed upon and paid in advance IS allowable. ' , The master has no lien for wages.
SAME-SERVICES OF STEVEDOlm-BoME PORT.
In the absence of statute there is no lien for a stevedore's services rendered in the home 'port, and not shown to have been rendered on the credit of the vessel. '
Though money advanced to pay claims that are liens either under the maritime law or under a statute maybecome a lien. it must be clearly sbown that it was advanced on the credit of the vessel to pay lien claims, and that it was so used; and if advanced to \.wo v61lsels it must also be shown how much was advanced to each; but it is not necessary ,that each claim paid she,uld be proved if it appears that the amount advanced waS all disl)ursed in paying lien , claims.
SAME-PRIORITY OF CLAIM.
SAME-ADVANCES TO PAY LrENS.
A clail:!l for moneys expended at,t,he request of the owners to lien claims for supplies and wages will be alIowed and classified as a claim for supplies. .'
SAME-MONEY COLLECTED AS AGENT, .AND EXPENDED FOR SUPPI,lES.
Money colIected by a steamer, as agent, from consignees. and used to pay ordinary running expenses. such as fuel and wages claims. may be treated as ,loaned on her credit to pay lien claims, though not amounting to a breach of the contract of affreightment. There is no lien for services rendered more than two years before the vessel is libeled. especially where the proof in support of the claim is otherwise un· sat.isfactory,
Claims for wood furnished In July and August. 1887. at way landings at which the vessel touched very irregularly, amounting to $67, are not stale on llbelliled iIlApril, 1888. there having been no apparent occasion for proceedings to enforce them. and tbe amount lIot justifying snch proceedings, and no one having heen prejudiced by the delay.
In Ailmirl11ty. Decision on claims. and intervening for labor, materials, and supplies furnished., F()r opinion, on excepti()llS, see 35 Fed. Rep. 548. George J. Davis, for libelant. CamlJbell &- Ryan, Charles S. Hayden, Cochran, Dickson &- Smith, and Charle8 G. B. Drummond, for intervening libelants and petitioners.
THAYER, J. Claim No. 3;446, of James F. Ewing, agent, etc., and claim No. 3,441, of James F. Ewing, agent, etc., are disallowed. The petitioners sold the steamers a large' quantity of salt, in one instance 200 barrels, in the other, 500 barrels. The salt was not bought as "supplies" for the steamers, and was not so furnished. It was bought by the owners of the to be taken up the river and sold on speculation. No lien exists in favor of such demanua. ', Chtirn No. 3,428,of Sells & CO, V8. Wyoming; claim No. 3,429, of Sells & CO. V8. Dacotah; and claim No. 3,448, of Halliday.& Phillips
Wharfuoat Co. V8. Dacotah. These claims be allowed, and it is .so ordered. It appears that each steamer collected certain moneys from , consignees on delivery to them of certain merchandise received for transThe money belonged tp the several claimants. The steamers acted merely as their agents in making the,collections. Before the return trip was concluded, the money so collected was used to pay .. ordinary running expenses of the steamers, such as fuel and wages claims. Claimants are now entitled to treat the money as loaned on the credit of the steamers to pay lien claims, even if the several acts did not a,mount to a breach of affreightment contracts. Claim No. 3,438, of James Sharp & CO. V8. Dacotah. "This claim will be allowed in the sum of $27.36. The proof shows that the steamer issued its bill of lading for certain merchandise, including one tierce of lard, which it failed for some reason to deliver. It will be classified as "an affreightment claim, and paid accordingly. . , .. .' . Claim No. 3,423, of the Cleveland, Columbus, CinCinnati & Indianapolis Railway t'8. The Dacotah, is allowe<i in the sum of $30: The steamer was paid in advance for the transportation of 240 kegs of nails from East St. LOuis to Kansas City. It received the property, b,utcom. pelled the consignee to pay $30 in addition to the price agreed upon whim it received the property. Claim No. 3,437, of E. J. Duncan V8. The Dacotah, is allowed without comment, and classified asa supply Claim. .. .. . ' Claim No. 3,454, of the Washington Ferry Co. v8.The Dacotah; and claim No. 3,455, of Samuel E. Vaughn V8. The Dacotah. The only .possible objection to these claims is, that they are stale. The claims are for wood taken at way landings on the Missouri river, July 9,31, and ,August 23, 1887. The libels were filed April 9, 1888. The Claims are small, amounting to $29.25, and $37.50,.respectively. The steamers ., tpuched very irregularly at the places where the wood was taken..· There was no apparent occasion for taking steps to enforcE;l the claims by legal proceedings, nor would the. amount of the demands justify such ings. Furthermore, no one' appears to have been prejudiced by ,the lay. For these reasons the claims will each be allowed and'. clLis$ified Rssupply claims. Coburn v. Insurance Co., 20' Fed. Rep. 644, arid 'The ThomaS Sherlock, 22 Fed. Rep. 253-256. . '. L Claim No. 3,435, of Roche &Coyne V8. The Dacotah, "is a claim for unloadipg the steamer at St. Louis, Mo., "to enable her to on. voyage." It is therefore a stevedore's demand. Whether a stevedore performs a maritime service, and is entitled to a lien for such service, a question that has been decided differentlyin different districts: ·The 'authorities are referred to by Judge PARDEE, The Esteban de Antunano, , '31 Fed. Rep. Inthis district it has been heretofore held that such services are. of a maritime character, and that a lien exists therefor;'even in .the home. port, when the service is shown to have been on tile credit of the vessel, or when such fact is fairly inferable from thecir: underwh.ich the service was rendered. The Court, E.ast. Dist. Mo., :No. 2,444. There was no proofI$-
nished in this case that the service was rendered on the credit of the steamer; ndr can such fact be inferred. On that ground alone the claim is disallowed, as the state statute does not make it alien. Claim No. 3,414, of WilHam D. Shanks, VB. The Dacotah; claim No. ,3.452, of George G. Keith VB. The Dacotah; claim No. 3,451, of George G. Keith VB. The Wyoming; and claim No. 3,453, of Henry Keith VB. The Wyoming. Of the above claims Nos. 3,452 and 3,453 must be rejected, because preferred by the master, who has no lien for wages. Claim No. 3,414 will be allowed in the sum of $200, the residue having been heretofore allowed and' paid. The sum now allowed will' be classified asa claim for supplies, inasmuch as it appears to have been expended at the request of the owners to discharge claims for supplies and wages that were liens against the steamer Dacutah. ' Claim No. 3,451 is rejected. A portion of the same is not a lien. The residue of the claim is stale, being for services rendered more than two years before the steamer was libeled. The proof in support of the claim is otherwise unsatisfactory. The residue of the claims, to-wit: Claim No. 3,400, of the P. P. Manion Blacksmith & Wrecking CO. VB. The Dacotah; claim No. 3.401, of John Jackson VB. The Dacotah; claim No. 3,405, of Ward and Brady. VB. The Dacotah; claim No. 3,407, of Cairo City Coal CO. VB. The Dacotah; clll;im No. 3,412, of T. T. Lewis VB. The Dacotah; claim No. 3,402, of John Jackson VB. The Wyoming; claim No. 3,405, of Ward and Brad¥ VB. The Wyoming; and claim No. 3,417, ofT. T. Lewis V8. The Wyoming,-may be conveniently considered together. All of them contain charges for money said to have been advanced to pay wages or supply claims against the steamers. A question arises in each case as to the existence of a lien on account of the alleged money advancements. It is well settled that money advanced to pay claims that are a lien by virtue of the maritime law; or a local statute, may itself become a lien against the vessel whose debts have thus been discharged. But in order to establish a lien for money advanced it must be clearly shown that it was advanced on the credit of the vessel to pay lien claims, and that it WllS so used. If money is advanced generally to aid in running a steam-boat or other craft, no lien arises unless it be for such specific portion of the money so advanced, as is clearly shown to have been used in discharging claims that were liens. Furthermore, if money is advanced to aid in running two steam-boats. no lien can be allowed against . either unless the proof shows how. much was advanced in behalf of each, and for what purpose it was used. A lien is of that nature that it must be ma:de definite in amount by the person asserting it. The Grapeshot, 9 Wall. 129; The Guiding Star, 9 Fed. Rep. 523; The GUid1:ng Star, 18 Fed. Rep. ,264; The Gen. Tompkins, 9 Fed. Rep. 620; The Tho8. Sherlock, 22 Fed. Rep. 254; The Cumberland, 30 Fed.; Rep. 453. It is not 'essential, however. that each particular claim discharged by a money advancement should be proven, if it is established with reasonable certainty that the fund was all disbursed in the payment of It class of claims that were liens. Testing the claims by the rule last stated» I have no doubt
that the claims Nos. 3,407 and 3,405 against The Dacotah should be allowed in full, as well as claim No. 3,404, against The Wyoming. The .money advancements embraced in these claims, are shown to have been expended in paying lien claims. These claims are accordingly allowed in full. Claim No. 3,407 embraces an item of$129, and claim No. 3,404 an item of $175, that are entitled to payment as wages claims, the money. having been advanced and used to pay wages. I am also of the opinion that the claim of the P. P. Manion Blacksmith & Wrecking Company should be allowed to the alllount of $1,308.62, and no more. The evidence renders it reasonably certain that $969.94 was advanced and used to payoff a lien for repairing the steamer's shaft, and that $350 was advanced and used to pay for moving and erecting the shaft. The item $213.06 is· not satisfactorily established as a lien, and is disallowed,. Tested by the rule above announced, claims Nos. 3,401 and 3,402 (preferred by John Jackson) are not established as liens, and can'not be allQwed as such. The money was advanced generally to "Hunter Ben Jenkins, manager of steamers Wyoming and Dacotah." It is not l;lhown w.ith any degree of certainty that the money was all used, or that any portion was used in paying lien claims. Moreover, it is not shown with any certainty how much was so used in behalf of each steamer. Jenkins is unable to state how much was used in the puyment of any particulpl' class of claims, or what claims were in fact paid with the money so advanced, and Mr. Jackson has no knowledge on that subject. What has been said respecting claims Nos. 3,401 and 3,402 applieE! with even greater force to claims Nos. 3,412 and 3,417, in favor of T. T. 'Lewis, and both of the latter claims are accordingly rejected on the same grounds. In the distrIbtition to be ordered, wages claims will rank first, daims for materials and supplies next, and claims under contracts of affreightment thereafter. If there should be any surplus after the lien claims are satisfied, a question may arise whether the mortgagees are entitled to it, or whether it should be awarded to Jackson and Lewis. That question is reserved for further consideration if there shall be any occasion to determine it.
GEORGE t1. THE AERONAUT.
(Diltrict (Jourt, S. D. New York.
October 11, 1888."
MARITIME LIEN-SUPPLIES-OWNER PRO HAC VICE-PERSONAL CREDIT-HOMB PORT-,-PRESUMPTION.
Material-men furnished supplies in New York to a vessel registered in Jersey but whose business home was in New York city, upon the erder, of charterers who were owners pro hac 'Vice, and did business in New York, and