'a levy QfJ the :. Second warrant' does' not' make' the' reeeipt· by , the Jll.arshal'off8bchwarl'arit 'any' the less effective to constitute a levy. The proctors :for the cla;inlant, in a brief :filed herein, say:
"Where: the·otl:l.eer ha.stheiproperty bHmstody under a prior right, he may . levy by.: 'makfng a.rerorn to that effect, thereby showto be tl? bold, ,the property under the second writ, subIng jecttotheflrst. This he 4Idnotdo in: the ca,se at bar. ,It will be conth,at there' has been a cOnsq-uctlve levy, tended ,;W icoUDl;leI 'fO;f' but the-,record shows an make even a constructive levy."
. T)iEfhlal'Slialdoes notInalFea by mak.ing his return to that effect.; The is.no ,part of.the levy. It .merely evi· dehce ()fit,and may be.made atanytiW:e, and is subject to amend· ment or to. COl;lfo to tb.e fa¢t. The fact in this case is,asllliJeady stated, that:themarsb.al,atd tbat there should be a levy mllde under the he held such 'process for that . The law gives to theSe facts th.e con$equences of. a levy. them operate asa lyt;Y,. which became absolute on the dismiss'al of the suit of the goYernII).et),t; and 1:4is consequence is not affected by the belief, more was necessary, or by his intenti()nthat. spmethPig more should be done, or by hi$ failure to make a retupl, Which, tllat matter, may yet be made, showing a levy by-a simple holding under a secon,d writ subject to the first, instead' of the return which he did make. The exceptions are overruled.
. 'tHE NEW IDEA. THE NEW IDEA et eL (DistrIct Court, S. D. MississippJ., W. D. February 5, 1892.)
A tOl'maI'Itlme. wages is assIgnable, and the lien also passes by the assIgnment, so that the assignee Is' entitled to enforce such lien in bllil OWll name.. .. ..
In Admiralty. Interven,tion of Harvey Rockwood in suit by R9bert Mark aga.inst the steamboat New Idea and barges. Decree forintervener. : .A. M. Lea,for interVener. M. F. Smith, for claimant. NILES, District Judge.. In the matter of the proceeds of the steamQoat New Idea and barges, heard on the intervention of Harvey Bockwoop,. who sues as the assignee of certain" claims for maritime wages, I ,that these claims are assignable. I do not think the aSsignment. iUvests the lien. In Cobb v. Howard, 3 Blatchf. 525, Judge NelspD says, "It is every day's practice, in the admiralty, to allow suit to .be b1'Oughtin the name of an assignee of a chose in action." lIliThe Hull of a New Ship,2 Ware, 203, I!"ed. Cas. No. 6,859, JudgeiWare. examined the point on principle and authority, and held that the. debt due a material man could be assigned, and that the hypothecation went with it. The general rule of equity
.is clear, that what a man has he may assign, e:¥:cepting for wrongs of a personal nature, such as slander an4 assault. The convincing reason is that given by Judge Ware in the case cited, that "the debtor cannot be injured by the assignment, while the creditor would lose part of the benefit of his security if he cannot assign." In this state (Mississippi) it is settled law that the lien of a mechanic, material man, or laborer may be assigned.· In the case of Kerr v. Moore, 54 Miss. 288, the court say:
"The decided weight of authority and reasoning, according to our view, is in favor of the assignability of the lien of the mechanic, and the right of the assignee to assert his claim and enforce the lien in the same manner and to the same extent that the mechanic could. We hold that the Hen of 11. laborer for wages is assignable, and that tbe assignee can enforce it, just as the laborer could. This view better accords with the general policy of our law, and the spirit and purpose of the act which gives the laborer a lien, thauthe contrary view."
In the last edition of Jones, Liens, § 1788, the law is thus stated: .
"The assignment of a debt secured by a maritime lien carries with it the lien security, where the parties so intended, and if the assignment be absolute the assignee should proceed in the admiralty in his own name;" citing numerous cases.
Judge Blodgett, in the case of The American Eagle, 19 Fed. 879, says:
"There is no doubt some seeming authority in support of the exception, but I think the more reliable and better-considered cases are in favor of supporting the lien in behalf of the assignee, or giving him all the S (:urity which the '>riginal creditor had."
The debtor cannot, certainly, be injured by an assignment. The creditor might lose, if he cannot assign. As far as I have been able to ascertain, I think it has been accepted doctrine in this district that maritime lien claims were -assignable. Let a decree be entered in accord with the views herein expressed.
THE JOURNEYMAN. SHARP
v. THE JOURNEYMAN.
(DistrIct Court, N. D. New York. March 8, 1894.)
BEAMEN-WAGES-LIBEL AGAINST VESSEL-BET-OFF.
Upon proceedIngs in rem against a barge for wages due a mariner, the claimant cannot set off a debt due by the libelant to a third person, who has assigned such debt to the master personally.
In Admiralty. Libel by John Sharp against the Journeyman for wages. Decree for libelant. Bovingdon & Brown, for libelant. Cook & Fitzgerald, for claimant. COXE, DistJ;i<:t Judge. John Sharp, the libelant, during the summer of 1893, at Oleveland, Ohio, shipped as mate upon the barge Journeyman and worked in that capacity for 19! days. He has not been paid, and the question is what shall be his per diem compensa-