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Earle agt. Steamboat Alida.

D. MCMAHON, for libellant.

Messrs. BONNEY, SHERWOOD & BURRILL, for claimants.

Per curiam, BETTS, D. J. The question raised in this case, on the merits, is whether the lessee of a wharf, for a fixed period of time has a lien upon the vessel for wharfage.

The act embraces wharfage under whatever title it is used, unless the vessel is placed there in wrong of the owner. She is in pawn or pledge to the owner of the wharf for the value of her accommodation, and the statute preserves the effect of the pledge for ten days after her removal, unless a lien is sooner filed, in which case the period of the lien is extended for an additional period.

The charge can only be allowed for the time the vessel actually occupies the wharf, and must be pursued in the same manner as if the case was without bargain as to terms and duration.

Accordingly, a recovery cannot be had for the entire contract price when the vessel was not at the dock the whole period-the lien being given by statute can be availed of only pursuant to the appointment of the statute, although the rate of wharfage may be matter of agreement between the parties. The vessel, being a domestic one, can be subject to no lien not given by the local law.

The case does not stand on the footing of a petition for payment of wharfage claim out of proceeds in court. It is an original proceeding in rem against the vessel itself, and must be governed by the rules applicable to suits of that character.

It is not necessary, in order to avoid its effect, that the claimant should plead in bar of the lien. It belongs to the libellant to prove, in the first instance, that his case takes the privilege of the statute.

Ordered, decree for libellant, a reference to a commissioner to ascertain and report the amount of lien on these principles.

Brown agt. Steamboat Alida.

UNITED STATES DISTRICT COURT.
NITED

JOHN E. BROWN agt. THE STEAMBOAT ALIDA.

In order to effect a lien under the statute against ships and vessels, (2 R. S., 493, 494, o. p.,) the debt must be created at the port where the vessel lies, and a specification of lien must be filed under the statute in that particular county. The lien debt is created, not by mere stipulation between the parties, but by applying to the benefit of the vessel those things which give existence to the lien. The lien debt comes into existence alone at the port where the constituents of it have been used or enjoyd by the vessel. Where the lien debt consisted of various items of work done on the vessel, partly while she lay in New York, and partly while traveling on her route to, and also at Kingston, on the Hudson river, and it appeared that the specification of lien had been only filed in the county of New York, the court rejected all those items of work not done in the county of New York, even though the libellant proved that the agreement to do the work was made in New York.

In Admiralty, Southern District of New York.
Before Hon. S. R. BETTS, D. J.

THE libellant was employed by the owners of the steamboat Alida, in the city of New York, to repair her. He commenced his repairs on her while she lay at her wharf in the city of New York, and continued them also on her while she was making her trips up to Kingston, on the Hudson river. The vessel navigated, in going to Kingston, through waters flowing through the territorial jurisdiction of several counties, but the libellant had only filed his specification of lien in the county of New York. He claimed he was entitled to the whole amount of his debt, because the employment was had in New York, and agreement made there to repair her. The same claimants in this as in the two former cases.

D. MCMAHON, for libellant.

Messrs. BONNEY, SHERWOOD & BURRILL, for claimants.

Per curiam, BETTS, D. J. This was another case wherein a lien was claimed under the local law against the same.

Brown agt. Steamboat Alida.

boat. The distinction from the other cases consists in this: Parts of the labor and materials, the subjects of demand, were furnished the vessel at different ports, and the libel seeks to enforce them in a single suit, upon the supposition that the place of the bargain between the parties was within this port. This particular is not made certain upon the evidence in respect to all that was done and furnished to the vessel. But in my opinion the statute does not admit of that interpretation. Reading together the numbers of the first and second sections of the statute belonging to this subject, the provision is, whenever a debt, amounting to fifty dollars or upwards, shall be contracted, &c., and in all cases such lien shall cease immediately after the vessel shall have left such port, unless, &c. This necessarily implies that the debt contracted must be created at the port where the vessel lies, and also that the debt is not contracted by mere stipulation between the parties, but by performing or applying to the benefit of the vessel those things which give existence to lien. No lien arises out of an agreement alone, although that may be binding personally upon the parties; but only on "a debt contracted on account of work, materials, stores or wharfage furnished the vessel." These are conditions precedent to a lien, and they come into existence alone at the port where the constituents of debt have been used or enjoyed by the vessel. The lien specification is filed only in New York, and its benefits cannot be extended beyond the territorial limits of that county. All services or furnishings to the vessel out of port, are outside the privilege required for the New York debt, and can be attached to the vessel in no other way than according to specific directions of the statute.

The case must accordingly go to a commissioner, to ascertain if a debt of $50 was due in New York, and subject to the lien. If less than that amount is found to have been under lien when the lien was filed, the libel must be

Mecklin agt. Berry.

dismissed. The libellant will be entitled to a decree for all sums exceeding that amount.

The vessel is discharged from the action in relation to all debts contracted as defined out of the county of New York, and also from all not secured by the lien specifications.

Decree accordingly.

NOTE. The foregoing decisions were made before the passage of the act of 1860, amending the lien law relative to ships and vessels; yet the points decided in them are important, as well now as before the passage of the amending act. They will be of interest to suitors in the courts of this state, taking proceedings under that act, as the admiralty have now no longer jurisdiction in those cases where the contest arises respecting liens on domestic vessels owned within the state.

SUPREME COURT.

GEORGE G. MECKLIN and OLIVER S. LELAND agt. PELEG G. BERRY and HOMER L. SMITH.

Where the order of arrest was founded on the affidavits of both plaintiffs, charging fraudulent representations, the principal of which was that when one of the defendants borrowed the money of them, for his firm, he said the defendants were entirely solvent,

Held, that the defendant alluded to having positively denied such a statement, and there being other undisputed circumstances detailed in the affidavits on the motion to vacate the order, which rendered it improbable that such representation was made, or, if made, that the defendant knew at the time his firm to be insolvent, the order of arrest was vacated.

New York Special Term, October, 1861.
MOTION to vacate order of arrest.

SUTHERLAND, Justice. The affidavits upon which the order of arrest in this case was granted, would appear to indicate two grounds of arrest: First, fraudulent representations at the time the money was borrowed; second, a subsequent disposition of property by way of a general assignment for the benefit of creditors.

Mecklin agt. Berry.

It can hardly be said that the affidavits upon which the order of arrest was granted, attempt to impeach the assignment as fraudulent; and on the argument of this motion to vacate the order of arrest, neither by affidavit nor by argument was the assignment attacked as fraudulent and void.

It is probable that the fact of the assignment so soon after the money was borrowed, was inserted in one of the plaintiffs' affidavit, on which the order of arrest was granted, and was intended to be used for the purpose merely of showing that the alleged fraudulent representations were made with a fraudulent intent. I must consider the order of arrest, then, as resting entirely on the charge of fraudulent representations.

As to this, the allegation in affidavits, on which the order of arrest was granted, substantially is, that the defendant Smith, when he borrowed the money for his firm, composed of the two defendants, said that the defendants were entirely solvent.

The plaintiffs both swear that the defendant Smith made such a representation.

The defendant Smith positively and unequivocally swears that nothing of the kind was said; that he made no representations at all as to the solvency of the defendants or of their firm, and no representations at all to induce the loaning of the money.

Here we have two oaths against one to show that the representation was made; and yet there are other undisputed circumstances detailed in the affidavits submitted on this motion, which render it so improbable that the representations were made, that I cannot, after a careful examination of the papers, hesitate to say that I am far from being satisfied that the defendant Smith ever in fact said or represented as the plaintiffs allege.

These circumstances are, principally, the course and character of the previous dealings between the parties-the circumstances of the loan itself—the improbability that the

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