nDmAL REPORTER ,vol.
plJlymeftl.eUheirclaim.s;ill' full frdmtbe registry oHhe district
To hold otherwise would be to allow the fund against which an appellant was,p,oBecuting his claim to be entirely withdrawn, and thus deprive him'of'alJ the fruits ofbis:'appeal and decree shbuldthe appellate court in: his favor. When there is a fund in the district court against which: Several libelants ate prosecuting claims, and it is insufficient to pay all, and the claim of one libelant is disallowed, and he appeals to the :circuit court, no payments should be made from the fund until after the decree of the circuit court upon the appeal. By such an appeal the wJhOle'decree isbrough,t .l!1p. The part not appealed from remains here in fun force, to be executed on the final termination of the cause. .What is not reversed isstiI'1 in force and a necessary part of the decree of this is to be executed as such. . 'l!he Roarer, 1 BIatchf. ·1. The result of'£his view is that the entire fund should have been sent up to this court with the appeal. "The appeal carries up the res, or money in the registry of the district court, to the circuit court, and, when the rights of the parties are adjudicated there, the court must carry into execution its own deoree." v. AnderBOn, 21 How. 386.
tI. THE CARA.
(Circuit oourt, D. Louutana. April Term, 1880.)
!UBITIMlI L1'JlIl'fll....SUPPL1ll18J.T HOME
Under Rev: C1vUCode La. art. 8274, declaring that should bave ef. feet aga10t third 'persons, unless. recorded in the manner required bylaw," the owner of a vessel who has chartered her to another ls a "th1rd person," w1th 1"8.pact to persons who claim,a lien under the state law far supplies furnished in the home port; 'Beard. v. OMppeU., 28 La. AnD. 694, followed.
In Admiralty. Libel by W. G. Wilmot & Co. against the Cara for supplies, Lagan & Mackinson interveners. On appeal from district court. J..ibel and intervention dismissed. The libelants, W. G. Wilmot & Co., and the interveners, Lagan & Mackinson, assert a lien upon the defeudants, the steamboat Cara, for supplies furnished in the home port. The lien is claimed under the local law of Louisiana, (Rev. Civil Code, art. 3237.) The dflfense, set up by way of ,exception, is that the contract for supplies was not recorded, as required by law,and therefore no ,lien attached. The libelants olaimed for coal furnished the Cara to the amount of 8345, between January 13 and 23, 1879. Their lien therefor was not recorded until March 7,1879. The interveners, Lagan.& Mackinson, claim $74.07 for other supplies furnished between January 9 and 13,1879, and their lien was not recorded until March 10,1879. Rev. Civil Code, art. 3274, declares: "No privilege should have effect against third persons, unless
..... ,.-1 .. "
recorded, iIi the manner required by law, in the parish where the property to be affected is situated. It shall confer Ii'o preference on the creditor ",hOll!?lds it ()ver creditors,who have acquire,da mortgage, unless tlleiaet' or 'Other eVidence of1the debt is' recorded oli Hie day 'that the concontended, in retract is entered into." T1;le ply to this, that the claimant was nota" third person,"within the meanipg,of article 3274, Rev. Civil CO,de. The supplies were furnished to the 'Oll.ta;bythelibelants and interv·eners, while thedara was in possession of Dodge & Doherty, to whom she had been 'chattered by her owner, the claiWllI\h QnJan:uary, for three ll1?pths from that date. At the time the steamboat was seIzed she had bee.n returned to and was in possession of the claimant. forlihelant. ,', .' J.08fPh P.Hwner, for WOODS, .rudge.. '.The ac(or other evidenCE! of debt on which the libelant, baEles his claim was not on the day the .. by artic1e3274, Rev. CiYilCode,no'r,within seven days thereaftllr, asprovid,ed by an amendment passed in 1877. See Acts ,1877, p. 59., 'l'he only is therefore whether the owner of the "boat falls .the term "third persons," found in article 3274. We think the case ,of Beard v.(Jhappell, 23 La. Ann. 694, furnishes an ani'lwer to this question. In that ca,se it was held, that, "the debtor for supplies being alessee, the Owner ,of the plantation and the stock thereon is a 'third per,sgn,' within the meaning of article 123 of the constitution. If, theref()re, the owner of the plantation, a third person, was in possession .of .the cotton at the time the privilege was asserted by the furnisher of supplies; then, and In such case, the furnisher could not hold the same, because, not having had his privilege recorded, and the cotton having passed into third .hll;nds, the privilege was lost." This authority covers this case. As against the owner of the boat, who was athird person in possession, the libelante and interveners h.ad no lien, because their contract had not !;leen recorded, as required by law. .A lien is ne,cessaryto the relief they ask. The Lottawanna, 21 WQll. 558. The and intervention must be dismissed, with costs. concurred.
Tmc NE'1".rIE WOODWABD.
E. D. M1Ch41a:n". Aplil 80, 18t1.)
The maritime lien fordamaillS arising from takes preoee1ence of the ue. .,forseaman's wages. accruing prior to the cOllision. The John G. Stevens, 40 FeeL Rep. ud The E·. H. Stanwood, 49 Fed. Rep. 577, followed.
In ·Admiralty. On petitions for distribution' of proceeds of sale of the sbhooner Nettie Woodward.· . Statement by SWAN, District Judge: The questions in this case arise upon petitions for distribution of the proceeds of sale of the schooner Nettie Woodward, which was condemI?-ed and sold under. the process and order of this court at the suit of the original libelant. . The proceeds in the registry of the court are insufficient.OO1>8:Y the decree against the vessel. The Western Transit Company holds a . decree for damages resulting to its steamer Commodore from a collision in the St. Clair river, for which the Was adjudged solely iri· fault, and asks· that its decree may be declared a lien upon the proceeds of sale paramount to those of the interVenOla, who are the master and crew of the schooner, and in whose favor decrees for wages accruing prior to the collision have been entered. The master aiidseamen unite in a petition praying· priority of payment of their decrees over that for the damages caused by the collision. The Nettie Woodward is a Canadian vessel, and, under the laws of the dominion of Canada, the mast'er is given a lien for wages co-ordinate with tlt·atofthecrew. W;E:Leonard, for claimant Phillip Cross. (Jajnfield, for We!ltern Transit Co.
Se) ahly·andexhaustivelyre'vie.wed in the opini6n of Mr. Justice BLATCHFORD in: '1fheJORJ",G·. SteV/ffl8 and RiB. ehrier,4.0 Fed. Rep. 331, and later
SWAN, :District Judge·. The authorities lipon the subject have ·been
in that of Judge JENKINS in the court ofappealsfor the seventh circuit in the case of The F. H. Stanwood, 49 Fed. Rep. 577, that nothing remains to be said upon it. With their reasoning and conclusions I fully concur. In accordance therewith, the order upon these petitions will be that the decree of the Western Transit Company for damages suffered by the collision be first paid out of the fund in the registry before payment of the decrees in favor of the interveners. The costs taxed in favor of the original libelant are secured by the stipulation filed, and are coverable from the stipulators, and for these execution will issue if necessary. In view of the nationality of the crew and the vessel, the rule applied works no injustice, since it gives the seamen's claims the same relative rank, as against that for the collision, as ia accorded by the settled principles of the English admiralty courts.