paid from which liens arose were paid from time to time from August, 1880, to October,1880. Each payment constituted a separate lien, from which it follows that all payments made prior to September 1, 1880, had ceased to be liens on June 1,1881, when the district court acquired jurisdiction. This settles all the claims made in the first article of the libel of intervention, as they are laid during August, 1880. Under the second article of the libel the claims are alleged as arising (and the exhibits show the fact) during the months of August, September, and October, 1880. Such as are of date prior to September Ist,are proscribed, and were dead liens when the libel was filed. On this second article of the libel of intervention a reference is required to ascertain dates and facts. On the whole case appealed t.. ' accompanying decree will be entered.
(DiBtt'ict Court, 1). New.Jersey; December 3, 1881,)
W.liVER. In the absence of /lny satisfactory explanation, delay in enforcing maritime liens, after a reasonable opportunity to doso, will he deemed a '''River such liens, as against purchasers for value and without notice.
In Admiralty. Libel in. rem. A. Hugg, for libellant. R. L. J enkina, for claimant. NIXON, D. J. This is a. libel in rem for mat,erials furnished and work done by the libellant on the schooner Lauretta, belonging to the port of Baltimore, at. the port of Philadelphia.
The proofs show that in the month of August, 1876, while the ve!'lsel was ,at the city of Camden,in the state of NewJersey, certain materiaJs were . :3upplied and work performed fQr repairs 'upon her by the libellant, at the request of John McMurry, who. was the legally.authorized attorney of the owner, Coleman Taylor, then residing at Baltimore, Maryland. T4e vessel continue4 the property of the said Taylor until the seventh of February, 1877, . when she Wag sold to the claimant by bill of sale duly executed, in which there was a covenant that she was freean:d clear of· all claims, demands, Ol the terms of the sale the purchaser was allowed to retain iphis hands two. or three hundred dollars of the consideJ;ation money for the period of as security against any secret liens or encumbrances . At the end' of six moilths, no demandS having been made againstthevessel, the claimant paid over the residue of the purchase money to the vendar. After the beginning' of the oyster season in Philauelphia,.in the fall of 1877,
, THE LAURETTA.
the to the Spruce-street wha,rf,where the' vessel 'was then lying, and told the claimant that he had a claim against ,her for and work. No bill ofUems wa,s pr\lsented. The only reply to thi!J demand that seems to have been made by the claimant wa,s: "There is the vessel. It she owes you anything attach her and make your money." No other claim was made, then or afterwards, and no steps taken to enforce a lien against the vessel until the libel was filed in this case, July 20, 1878, nearly two years after the debt wa,s contracted.
Three facts appear quite distinctly in the proofs, all of which are important in the decision of the case:
(1) That during all the time which elapsed between the contraction of the debt and filing the libel, the vessel wa,s engaged in the oyster trade at Philadelphia, and wa,s not out of the Delaware river and bay ; (2) that the libellant knew of the sale of the vessel to the claimant, about the time that the tranSfer , took place; (3) that the place of business of the claimant wa,s near that; of the wa,s ever libellant, and that no notice of the demand, except ,as above given by the libellant to the claimant.
The case turns upon the question of laches. Is the 'claim; under the circumstances, stale? While So maritime lien confers upon ma'· terial-men the right toenforca their claims, as against foreign vessels, by proceedings in rem, yet the interests of naviga.tion demand that some restrictions should be placed upon Buch right. Vessels are a species of property, the ownership of which is frequently changed. The lien is a Secret one, and purchasers, by: the exercise of the great est diligence, ,cl1nnot always ascertain the' eJliistence of such encum,;, orances, or guard against loss, if they are suffered to attach for any considerable length of time. Public policy, therefore, requires that when innocent purchasers are to be affected, reasonable diligence should be used in enforcing the lien, or the creditor should be considered as having waived it. Mere lapse of time, it is true, will not render a demand stale, where there are circumstances-as, for instance; the absence of the vessel-which hinder its enforcement. But where the opportunity has occurred, and no proceedings have been taken by the lienor to hold the vessel liable, until after new parties, without notice of the encumbrance, have come into the ownership, it is obviously inequitable and unjust to allow the lien to hold longer than is necessary to afford time for its reasonable enforcement. These are elementary principles, found in all the hooks and adjudged cases on the subject. It is difficult to lay down any general rule where the circumstances of each case differ so widely. The safest I have found is the one
adopted by the learned judge in the eastern district of Uichigan, in In re Dubuque, 2 Abb. (U. S.) 33, where it is said that "a delay to enforce a maritime lien, after a reasonable opportunity to do so, should be deemed a waiver of the lien as against subsequent purchasers or encumbrancers, in good faith and without notice, unless such delay is satisfactorily explained." There is no explanation of the delay in the present case. The alleged liability of the vessel was incurred in August, 1876. Nearly two years elapsed before the libel was filed. In the mean time the vessel was transferred to the claimant, without notice of the lien. She was within reach of the process of the courts, if the libellant had made any effort to hold her. I am clearly of the opinion that he ought not now to be allowed to collect his claim out of the property of an innocent purchaser, and that the libel must be dismissed. With regard to costs, there must be a decree against the libellant except fa!!.' what has been incurred by the laches of the proctor of the claimant. More thana year elapsed before a default was entered for want of an answer. A reference was then had, and a final decree taken on the report of the commissioner. On a judgment and execution against the stipulators on their bond nothing was realized here, and the libellant procured a copy of the whole record for the purpose of originating proceedings elsewhere. At this stage the claimant was allowed to open the decree and put in an answer, but all the costs incurred from the filing the libel until the filing of the answer must be paid by the claimant.
;KEEP V. INDIANAPOLIl:l & ST. LOUIS R. 00.
(Circuit Oourt, E. D. Missouri.
October 8, ISSl.)
Where two or more railroads, by an arrangement between themselves, establish a route to a certain point, and contract to carry a passenger over their roads to the terminal point, the terminal road is 'liable to him, as a common carrier, if, while being conveyed by it to his destination, he is injured, eithet through the negligence of its immediate employes or others with whom it hll:s contracted for motive power or other service. 2.
SAME-LIABILITY OF PARTY FURNIBlIING MOTIVE POWER TO A RAILROAD.
A corporation furnishing motive power to a railroad company, but not acting, or chartered to act, as a common carrier, is not bound to use more than the ordinary skill and diligence which its employment needs, and is only liable for direct negligence or unskilfulness.
Where a common carrier employs another party to furnish motive power, and through the direct negligence of the latter, a passenger, being conveyed by the carrier, is injured, and the carrier is also at fault, and the passenger brings a suit against each party, and both suits are tried together, the same amount of damages should be rendered against each. Under such circumstances the satisfaction of the judgment in either case should be made to operate as a satisfaction in both.
SAME-SAHE-MEASURE OF DAMAGES.
A party who receives a physical injury through the negligence of another, should be allowed sufficient damages to compensate him for the amount of his expenditures and losses in consequence of the injury, taking also into consideration the extent of his injuries, his sufferings, and the effect of the accident on his p;eneral health.
The above-entitled cases were, by order of the court, tried together. In the case against the Indianapolis & St. Louis Railroad Company the plaintiff alleged in his petition that the defendant was a common carrier of passengers over a railway extending from the city of Indianapolis, in the state of Indiaua, to the city of St. Louis, in the state of Missouri; that for a valuable consideration it contracted to convey him as a passenger carefully and safely from Indianapolis to said city of St. Louis; that while he was in a car of the defendant, and was being transported under said contract, the defendant negligently, carelessly, and unskilfully managed and handled said car so that it was violently thrown off the track and overturned, by reason whereof he received serious bodily injuries and suffered greatly, both mentally and physically, and was forced to payout large sums of money. For all of which he asked damages in the sum of $50,000. v.9,no.1l-40