93 FEDERAL REPORTER.
that the act 01 April 20, 1858, is more nearly applicable than that of June 24, 1895; but, be this as it may, we do not donbtthat delivery is, under either act, e88enUal JQ lien. ,It, ,il;j. ,Ilot to decide whether it be requisite that the articles shOuld, plaQed upon the but that the possessiop must b,e either to the or to its owner or proper representative, we think is unquestionable. James Dalzell's Son & Co. v. The Daniel Kaine, 31 Fed. 748. In the present case there was ,in fact. no change of posse&"!iolli and the reason for this is not, in our:opinion, material. The motion to quash is not well founded. '.l'Pe wsition now assumed in support of that II1otion was not taken in, the court below, from and the faet that the appellant bought the sheriff of Washington county, on the 6th day of :M.ay, 1898, is distinctly shown by the! recOl'd before us. The decree' (If the district court is reversed, l!lld'the cause will be remandeQ. to tha,t court·for further' proceedings, to be' there taken in ·pursuance,of this: detennination.
ler'sSteamboat Company (formerly Line), which had for years been 'accustomed to lay its vessels up for the winter at libelants' wharves, and to make sU,ch other use' of the wharves as occasion required. During the period in of the boats were laid up next question here, as on previous occasions, SOl to the wharf, and the others' outside of tll<- ones first berthed. There were four berths, Ilext the wharf, and at times' as many as four boats, one inside and three outside,occupied the same berth. The agent of the company testified that the arrangement with the owner of the wharf was that they were to pay "five dollars a day for each boat lying next to the wharf, nothing for any ()utside boat lying outside of tbe boats lying next to the wharf"; that in prior years the bills were rendered in bulk at the end of the season, after the boats had all left there, and were "against each larg'e steamboat,-that is, the steamboat lying next to the dock,"-and that no e!uuge was made upon the boats that-lay outside. The libelant Robinson denied that any such arrangement was made as to inside and outside boats. Were this all the testimony, it might be difficult to reach a conclusion. But Eg'an, libelants' clerk who had charge ()f their wharves and kept the bool,s, testifies that he un(lerstood that the was to pay five dollars for each berth The book containing the account -of the wharfage of these boats shows that, contrary to his eusto,m In respect to other, boats, he made no entry of tonnage, no entry of the charge ,for the wharfage (save for the first month. which he snbsequently erased under direction), and that he apparently rendered one bill for each bertti, however many boats were stored at It. We are satisfied that the arrangement for the season of 1890-91 was the same as in prior years. viz. that the boat lying next to the dock should pay five dollars a day, and that claimants might lay up boats outside of her without further Charge, Whatever lien tllere might be for wharfage, therefore" would attach only to the boat against which wharfage was to be charged, and not against the outside boats. The evidence shows that neither of, the boats libeled in these suits at any time during the period in controversy occupied an inside berth. Egan, who had charge of libelants' wharves, testified that the America, during the time she was there, occupied berth No. 2., and was outside all the time, and that when the Niagara came there she first occupied berth No.3, outside, and then removed for the rest of the time to berth No.1, outside. The record book corroborates his testimony. It would appear then that, under the arrangement, no charge for wharfage was to be made against either of these boats, and therefore no lien attached. The conclusion we have reached as to the facts renders it unnecessary to discuss the questions of law which were argued upon the appeals. The decrees of the district court are affirmed, with costs.
ATLAS GLASS CO. v. BALL BROS. GLASS MFG. CO. et al. (Circuit Court of Appeals, Second Circuit. May 1, 1899.) No. 111. Appeal from the Circuit Court of the United States for the :Korthern District of New 'York. WIll. L. Pierce, for appellant. F. G. Fincke, for appellees. BeforeWALLACE, LAOOMBE, and SHIPMAN, Circuit. Judges. PER CURIAM. This appeal must be dismissed for want of jurisdiction. 'l'he case of'Shepard v. Adams, 168 U. S. 618, 18 Sup. Ct. 214, is conclusive. See 87 Fed. l3ALTIMORE & O. R. CO. v. JOY. (Circuit Court of Appeals, Sixth Circuit.) Questions of law certified to the supreme court of the United States. See 19 Sup. Ct. 387. , CFIILE GOLD-MIN. CO. et al. v. BOSTON & M. CONSOL. COPPER & SILVER MIN. CO. (Circuit Court of Appeals, Ninth Circuit. February la, 1809.) No. 461. Appeal from the Circuit Court of the United States for the Southern Division of the District of Montana. Stapleton & Stapleton, for appellants. Louis Marshall and John l!'. Forbis, for appellee. Before GILBERT', HOSS, and MOURO'V, Oircuit Judges.