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daughter for many years, may constitute a family. Carmichael v. Northwestern Mut. Ben. Association, 51 Mich. 494. The court said: "Now this word 'family,' contained in the statute, is an expression of great flexibility. It is applied in many ways. It may mean the husband and wife having no children and living alone together, or it may mean children, or wife and children, or blood relatives, or any group constituting a distinct domestic or social body. It is often used to denote a small select corps attached to an army chief, and has even been extended to whole sects, as in the case of the Shakers. We discover nothing in the statute implying a narrow sense, and we should not be inclined to attribute one where the result would cause injustice. It seems to us that the circumstances constitute a case within the meaning of the Legislature."

CLAUSE.-In Eschbach v. Collins, 61 Md. 478; the court said: "What then is a clause? Does it consist of two or three words, which disjoined from the context and transferred to a separate sheet of paper, would be devoid of sense or meaning? Do the mere names of two persons constitute a clause? Is not a clause understood to mean one of the subdivisions of a written or printed document? Is the word ever used in any other sense?"

GAMING.- Betting on a horse race is gaming. Dyer v. Benson, 69 Ga. 609. The court said: "A game is any sport; originally racing was one of the games of antiquity. Thence from foot racing came chariot racing, horse racing, etc., which are all sports or games for diversion and amusement of spectators, and betting on any of these games be comes illegal."

The

PRODUCTION OF LABOR.- Hay is the "production of labor." Emerson v. Hedrick, 42 Ark. 263. court said: "The only point made here for appellant is, that the complaint did not show that appellee produced the hay, and therefore he had no lien upon it for his labor. The argument is, that prairie hay is a natural product, and being such, appellee produced nothing by cutting and raking it, but simply changed its form or assisted in putting it in a marketable condition. Hay is grass cut and dried for fodder grass prepared for preservation. Make hay while the sun shines.- Webster. Wild prairie grass is not hay, but when cut or mowed and raked it becomes hay, the drying or curing occurring between the former and the latter process. Hay may therefore with propriety be said to be the "production" of the laborer who cuts and rakes it in other words makes it. To hold otherwise would be a very narrow construction of the statute."

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RATES AND TAXES.- This phrase in a lease includes water rates. Direct Spanish Telegraph Co. v. Shepherd, 51 L. T. Rep. (N. S.) 124, Q. B. Div. Smith, J., said: "Confining myself to the judge's notes, the question for the court to determine is whether a water rate is a 'rate or tax.' If it is not a 'tax,' what is it? I say a rate, but Mr. Upjohn says it is simply a payment for goods sold and delivered. I do not think that it is so, and for this

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reason, that if the occupier of a house does not take a drop of water out of the pipes, he would nevertheless be liable to pay the water rates unless he gave notice to the water company that he did not intend to use the water."

LODGER. In the Lodgers' Goods Protection Act this word means one who habitually sleeps on the premises. Heawood v. Bone, 51 L. T. Rep. (N. S.) 124, Q. B. Div., Stephen, J., said: "The question whether, upon the facts stated, the appellant is a lodger is no doubt a fickle one to determine. I do not think that the registration cases bear on the matter at all. It seems to me that by the word lodger' the Legislature meant a person who lives on the premises. Now living at a place generally implies habitually sleeping there that is, going to bed at night there. It is to be observed that the object of the statute was to protect poor people from having their homes broken up by a distress of the superior landlord." Mathew, J., said: "I am of the same opinion. It seems to me that the essential element of lodging is living or residence, and that to constitute a person a lodger of any premises, it must be shown that he resides—that is, sleeps there."

LOTTERY.-Advertising that the defendants would give to the person buying goods at their store to the amount of fifty cents, and guessing nearest the number of beans in a glass globe in their window, is advertising a lottery. Hudelson v. State, 94 Ind. 426. The court said: "The contention of appellants' counsel is that the enterprise, as set out in the publication, is not a lottery, nor in the nature of a lottery or gift enterprise. That to arrive at the correct number of beans in the glass globe is not a matter of chance, but of mathematical calculation. We cannot concur in this view. An expert mathematician might compute the dimensions of the glass globe with a reasonable degree of certainty. Necessarily the result could be but approximately correct. To be mathematically correct, the exact thickness of the glass would have to be known. This exactness could not be attained by an observation of the sealed globe. Here would necessarily be an element of guessing. And if the exact size of the globe were known, it would be utterly impossible, by the application of mathematical rules, or by any other means, to calculate the number of beans contained in it. The size of the several beans, so far as they could be observed, would be a matter of pure guessing. And besides, only those on the surface and next to the glass could be seen. Those in the center might be smaller or larger. In short, there could be no fixed or definite fact or quantity upon which to base a mathematical calculation or demonstration. The number of beans in the globe could be nothing else than a matter of guessing. An expert mathematician might fix more nearly the size of the globe than an entirely uneducated person. And so he, and persons of better judgment, might fix more nearly the number of beans in the globe than persons of less judgment; yet the exact number would be a mere matter of guessing. That any one should

guess the correct number would be a matter of the merest chance, because there are no means of attaining to a certainty. Whether the enterprise set out in the publication be called a scheme of chance, a gift enterprise or a lottery, it is still a scheme of chance, and in that sense a lottery or gift enterprise. The watch was to be given to the person who should come nearest guessing the correct number of the beans. Who that might be would be purely a matter of chance. Whether that person might guess the correct number would be a matter of chance. Chance was to settle the ownership of the watch. And thus the enterprise was to be a lottery." The London Law Journal of Sept. 27, 1884, says: "A seller of 'lucky balls' at Manchester seems to have had a lucky escape. The children who bought them were told that by the investment of twopence they had a chance of finding a half-crown, shilling, and so on down to a farthing, inside. On being opened, none of the balls appeared to contain more than a halfpenny, and on this ground, apparently, the magistrate decided that there was no lottery. The balls with money inside are exactly analogous to the packets of tea with trinkets inside, decided in Taylor v. Smetten, 52 L. J. Rep. M. C. 101, to amount to a lottery. The absence of proof that there were prizes in the balls could not weigh against the statement that there were. A lottery is none the less a lottery because it is also a fraud. The stipendiary compromised matters by making the defendant pay the cost of the summons, which was Cadi justice. However the juvenile mind of Manchester will probably not in future be taught gambling by a system so irresistible that the blanks are sweetmeats."

COMMIT, MAKE." Commit an assault" is equivalent to "make an assault." State v. Murphy, 35 La. Ann. 622. The court said: "In common parlance, the words 'commit an assault' convey as clear a meaning as 'make an assault.' In ordinary acceptation, and in the connection shown, the words would be held as synonymous, and not without authority, since one of the definitions of the word 'commit,' and its most usual meaning is, to 'perpetrate or enact. Worcester, verbo 'commit.'" MANUFACTURE.— A saw mill is not a "manufactory of articles of wood." Jones v. Raines, 35 La. Ann. 996.

SALE-VESTING OF TITLE.

MICHIGAN SUPREME COURT, JUNE 4, 1884.*

BYLES V. COLIER.*

The presumption that title does not pass upon a sale so long as any thing remains to be done to determine the sum to be paid, is not conclusive, but may be overcome by such facts and circumstances as indicate a contrary intent in the parties, and the intent is a question of fact and not of law. Where money has been paid upon a sale of personalty that

has been set apart for the purchaser by examination and estimate of its quantity, the fact that it must be further *S. C., 19 N. W.Rep. 565.

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Fletcher & Wanty, for plaintiff and appellant.

Peter Doran, for defendant.

COOLEY, C. J. Replevin for a quantity of lumber. The plaintiff claimed title to the lumber under a contract made between S. B. Farnsworth, Charles Farnsworth, Addie P. Farnsworth, William Farnsworth and Fanny Whittington, of the first part, and A. W. Byrne, of the second part, dated October 28, 1880, whereby the parties of the first part agreed to cut, haul, and saw in their mill at Mears, the timber on certain lands owned by them in Oceana county, and sell the lumber to the party of the second part at certain rates specified for eight separate classes, ranging from 84 per thousand feet for culls, to $22 and $23 per thousand feet for the three grades of uppers. The terms of payment were to be one-half as soon as the lumber was piled in the yard, and the balance in ninety days after shipment. The following, among others not necessary to be recited, were special clauses of the contract: “And it is further agreed that all lumber at all time shall be cut to the order of the party of the second part, in whatsoever shape he may direct. And it is further agreed that the parties of the first part shall not sell or dispose of to any parties any of the above-mentioned grades of lumber, excepting orders that are on the books of the firm on the day of the date of these presents. The parties of the first part reserve the right to remove and dispose of not to exceed two hundred trees suitable for spars. It is agreed that the parties of the second part shall not require the parties of the first part to cut lumber or timbers longer than twenty feet. The inspection that shall govern shall be what is known as the Michigan inspection. Each party may furnish an inspector, and in case they disagree then an uninterested party shall be called upon any question that may arise."

November 5, 1880, the party of the second part assigned his interest in the contract to the plaintiff, and in the following July the parties of the first part entered into a contract with George Murphy, whereby he acquired an interest in the first-mentioned contract, the particulars of which it is not necessary to give now. The lumber was cut by Murphy after July, 1881, and piled in the mill-yard, where it was attached by the defendant, who is sheriff of the county of Oceana, by virtue of attachments against Murphy and William Farnsworth, and as their property. The attachment was made February 2, 1882.

The Circuit judge who tried the case finds "that said lumber had never been measured, but plaintiff, under said contracts, had advanced one-half of the estimated value, as provided for in said contracts, from time to time, on an estimate made by counting piles on yard each month; that it was the practice of the parties to said contract to measure and inspect the lumber as it was loaded upon the cars for shipment, and this measurement and inspection was recognized and acquiesced in by all parties, and the lumber was paid for in accordance therewith, the plaintiff rendering to second parties in said contract statements of number of cars, quantity and quality of lumber on each, and prices provided for, and making payment of the amount to be paid ninety days from time of shipment, as stated in said contract; this inspection being made by a person satisfactory to both parties. This particular lumber

was not so inspected, measured and shipped until some months after it was replevied by plaintiff in this suit. The last of the lumber was manufactured in June, 1882, and had not all been shipped in February, 1883, when the case was tried. The plaintiff settled with Murphy for the lumber in May or June, 1882, but then the amount was estimated, and a sum agreed upon as the sum that should be payable, the entire quantity of the lumber not having been at the time inspected and measured. This settlement was after the replevin suit had been brought. The plaintiff did not claim title to the lumber in question by virtue of any settlement or contract with the Farnsworths and Murphy, but claimed that he became the owner of the lumber manufactured under said contract by the payment of one-half of the purchase price, as estimated and mentioned in said contract, and by virtue of said payment the title passed to him."

The judge concludes his findings as follows: "I find as questions of law from the evidence and the contracts-it being expressly provided in said contract that each party had the right to furnish an inspector to inspect and grade the lumber, and in case of disagreement of inspectors a disinterested party should be called upon to settle any question of difference, and this lumber in question never having been measured and inspected according to provisions of the contract and usages of the parties under it-that at time of levy under the said writs of attachment the title of the lum ber in question had not vested in the plaintiff herein; that no title to the standing trees passed under said contract to plaintiff, the contract being for manufacturing rather than sale of standing timber; that by advancement of one half of purchase price of lumber on estimated quantity and quality on yard under said contract did not of itself pass absolute title to the lumber in question to the plaintiff, and the title to the said lumber replevied at time of replevy was in George Murphy and William Farnsworth, and hence subject to levy under said writs of attachment."

The defendant had judgment accordingly.

In Lingham v. Eggleston, 27 Mich. 324, it was decided that the question whether a sale is completed or only executory is usually one to be determined from the intent of the parties as gathered from their contract, the situation of the thing sold, and the circumstances surrounding the sale; that where the goods sold are designated, so that no question can arise as to the thing intended, it is not absolutely essential that there should be a delivery, or that the goods should be in deliverable condition, or that the quantity of quality, when the price depends upon either or both, should be determined; these being circumstances indicating intent, but not conclusive; but that where any thing is to be done by the vendor, or by the mutual concurrence of both parties, for the purpose of ascertaining the price of the goods, as by weighing, testing, or measuring them, where the price is to depend upon the quantity or quality of the goods, the performance of these things, in the absence of any thing indicating a contrary intent, is to be deemed presumptively a condition precedent to the transfer of the property, although the individual goods be ascertained, and they appear to be in a state in which they may be and ought to be accepted. This case has been referred to with approval in the subsequent cases of Hatch v. Fowler, 28 Mich. 205; Hahn v. Fredericks, 30 id. 223; Wilkinson v. Holiday, 33 id. 386; Grant v. Merchants', etc., Bank, 35 id. 515; Scotten v. Sutter, 37 id. 526; Carpenter v. Graham, 42 id. 191; Brewer v. Salt Association, 47 Mich. 526. The cases elsewhere to the same effect are numerous, and many of them are collected in Mr. Bennett's note to section 319 of the third edition of Benjamin on Sales. And see Kelsea v. Haines, 41 N. H. 246; S. W. Freight Co. v. Stanard, 44 Mo. 71; Shelton v. Franklin,

68 Ill. 333; Straus v. Minzesheimer, 78 Ill. 492; Crofoot v. Bennett, 2 N. Y. 258; Groat v. Gile, 51 id. 431; Burrows v. Whitaker, 71id. 292; Dennis v. Alexander, 3 Penn. St. 50; Galloway v. Week, 54 Wis. 608; Caywood V. Timmons (Kans.), 2 Pac. Rep. 566.

That the cases referred to settle the general principle, at least for this State, is beyond question or cavil. Presumptively the title does not pass, even though the articles be designated, so long as any thing remains to be done to determine the sum to be paid; but this is only a presumption, and is liable to be overcome by such facts and circumstances as indicate an intent in the parties to the contrary. In this case the Circuit judge has not passed upon the question of intent as one of fact, but he has found, as a matter of law, that under the contract the title had not passed when the attachment was made. In thus treating the question as one of law instead of fact, we think he erred. The facts found by him might possibly have justified the conclusion as one of fact, that the minds of the parties had not met in an intent that the title should pass; but the opposite conclusion seems much the more reasonable, and it is hardly probable that the Circuit judge would have failed to draw it if he had felt at liberty, under the terms of the contract, to do so. But the justification would have been ample under the authorities. The lumber which was attached had been examined by the parties as lumber which the plaintiff was to receive. They had agreed in an estimate of the quantity, and the plaintiff had made the payment upon that estimate which, by the contract, he was to make upon inspection. The lumber was therefore set apart for the plaintiff by examination, estimate and payment; and it is not likely that either party supposed, after the payment had been made, that the ownership was in any one but the plaintiff.

That for the purpose of determining with accuracy the sum to be finally paid, an inspection was to be had, is true. But this fact is not inconsistent with an intent that the title should pass immediately, when partial payment was made on the estimate. Colwell v. Keystone Iron Co., 36 Mich. 51; Macomber v. Parker, 13 Pick. 175; Williams v. Adams, 3 Sneed, 359; Sewell v. Eaton, 6 Wis. 490; Morrow v. Reed, 30 id. 81; Ockington v. Richey, 41 N. H. 275; Fitch v. Burk, 38 Vt. 683; Hatch v. Oil Co., 100 U. S. 124; Oil Co. v. Van Etten, 107 id. 325. The title might pass even without delivery if the property were sufficiently identified (Kimberly v. Patchin, 19 N. Y. 338; Russell v. Carrington, 42 id. 119; Watts v. Hendry, 13 Fla. 523); and even though something remained to be done to fit it for delivery. Elgee Cotton Cases, 22 Wall. 180; Butterworth v. McKinly, 11 Humph. 206; Cummins v. Griggs, 2 Duv. 87; Burr v. Williams, 23 Ark. 244. But the delivery made in this case was all that the contract contemplated, and was therefore sufficient. Morrow v. Campbell, 30 Wis. 90; Rattary v. Cook, 50 Ala. 352; Hurd v. Cook, 75 N. Y. 454; Bell v. Farrar, 41 Ill. 400; Graff v. Fitch, 58 id. 373; Gilman v. Hill, 36 N. H. 311, Cases closely resembling the one before us in the more important facts may be seen in Fitch v. Burk, 38 Vt. 683; Bush v. Barfield, 1 Cold. 92; Boswell v. Green, 25 N. J. Law, 390; Burrows v. Whitaker, 71 N. Y. 291; Sedgwick v. Cottingham, 54 Iowa, 512. Others are cited in the note to Benjamin on Sales, above referred to. The case differs from Stephens v. Santee, 49 N. Y. 35, in which there was no acceptance.

A new trial will be ordered.
The other justices concurred.

CHATTEL MORTGAGE RESERVING RIGHT TO cited, it is not applicable to the present case, for the

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Henderson, Hurd & Daniels, for plaintiffs.

C. P. Brown and Robinson, Powers & Lacy, for garnishees.

SHIRAS, J. The defendants, C. H. Langbein & Bro., were engaged in the mercantile business at Ossian, Iowa, and on the 28th day of September, 1883, they executed a chattel mortgage on their entire stock of merchandise, together with their store fixtures and books of account, and all the additions to be made to the stock, to secure payment of a promissory note of $916.70, due one Louisa Wight, payable September 28, 1884. And on the same day they executed a second mortgage on the same property to one Ferdinand Langbein, to secure a promissory note of $575, payable January 2, 1885. On the 9th of October, 1883, they executed a third mortgage on the same property to Davis & Madary to secure a note of $248.19, payable October 9, 1884. Each of these mortgages contains the provision that the "grantors have the right to dispose of the goods in the usual course of trade, provided they keep up the stock."

Between the 26th of July and 28th of September, 1883, the plaintiffs sold on credit to C. H. Langbein & Bro. goods to the amount of $518.34, and on the 15th of October, 1883, this suit was brought to recover therefor, a writ of attachment being issued, which was served by garnishing M. J. Carter, Louisa Wight, F. Langbein, Davis & Co., and others, service being made October 16, 1883. By agreement the auswer given by M. J. Carter stands as the answer of all the garnishees, and from it it appears that on the 10th of October, 1883, M. J. Carter, as attorney and agent for the several mortgagees named, took possession of the mortgaged property, and has since converted the same into cash, and holds the money thus realized in his possession, claiming that it should be applied in payment of the mortgages above described.

The plaintiffs claim that the mortgages are void as against creditors, and the question for determination is as to the validity of the mortgages as against the attaching creditors. As the mortgages in express terms provide that the mortgagors should remain in possession, with the right to sell the mortgaged property in the usual course of trade, they come within the rule laid down in Robinson v. Elliott, 22 Wall. 513, and Crooks v. Stuart, 2 McCrary, 13; 7 Fed. Rep. 801, wherein it is declared that the reservation of such rights to the mortgagor, upon the face of a mortgage, shows conclusively that it is intended as a shield and protection to the mortgagor, and operates as a fraud upon the rights of the creditors of the mortgagor, and is therefore void.

On behalf of the mortgagees it is claimed, that granting the correctness of the rule recognized in the cases *S. C., 20 Fed. Rep. 183.

reason that the mortgagees, through their agent, bad taken possession of the property before the writ of attachment in favor of plaintiffs was served by garnishment of the mortgagees and their agent. As already stated, the answer of the garnishee shows that he received possession of the property under the mortgage as agent of the mortgagees. The facts do not present a case wherein all rights under the mortgages were abandoned, and the parties entered into a new and wholly independent arrangement, whereby the goods were placed in the hands of the garnishee as a pledge for the payment of the debts due the parties named as mortgagees. The possession of the goods was delivered to the mortgagees for the purpose of fulfilling the conditions of the mortgages, and the possession was held under the terms thereof, and not by virtue of any new contract. The point to be decided therefore is whether the taking possession of the mortgaged property by the mortgagee in pursuance of the terms of the mortgage, before any creditor attacks the validity of the conveyance, will validate a mortgage which contains provisions showing that it is a fraud upon the rights of creditors. Counsel for the mortgagees cite in favor of the affirmative of the proposition the case of Congreve v. Evetts, 10 Exch. 298; Read v. Wilson, 22 Ill. 379; Brown v. Webb, 20 Ohio, 389.

In Congreve v. Evetts the question was as to the effect of a bill of sale of future crops. It was held that the execution of the bill of sale did not create any lien, legal or equitable, upon the future crops, but that if after the crops were growing, actual possession thereof was delivered to the creditor, he could hold the same against an execution creditor. The point decided was that an executory contract, which may be ineffectual at its date to create a lien upon property not then in existence, may be rendered binding and complete by delivery of possession after the property has been created or acquired.

In Read v. Wilson the decision is based upon the construction of a statute then in force in Illinois, by which it was provided that by the insertion of certain clauses in the mortgage the mortgagor might be authorized to remain in possession for two years. The court held that the provisions of the mortgage did not comply with the requirements of the statute, and did not therefore authorize the mortgagor to remain in possession, but that as the mortgagee took possession of the property before any other creditor obtained a lien thereon, such possession would cure the fraud, if any, imputed by reason of the fact that the mortgagor had continued in possession for a time contrary to the terms of the statute.

In Brown v. Webb it appeared that one Garnier, being insolvent, made a transfer of property to one Bour, which transfer was in fraud of his creditors. Brown & Co., creditors of Garnier, with knowledge of the fraud in the transfer from Garnier to Bour, procured, with Garnier's consent, a chattel mortgage from Bour upon the property transferred to him, to secure the debt due them from Garnier. The court held that the transfer from Garnier to Bour, though void as against creditors, was good as between them, and conveyed the legal title to Bour, and that Webb & Co. were justified in getting security for the debt due them from Garnier, by taking the mortgage from Bour, as thereby they got security on Garnier's property, the title of which was in Bour.

Of these cases therefore the only one that has any bearing upon the question at issue is that of Read v. Wilson, and in that case the court was ruling solely upon the fact that the mortgagee had not promptly taken possession under a mortgage which by its terms required him to take possession.

In Robinson v. Elliott and Crooks v. Stuart, supra, it

appears from the statement of facts in each case that possession under the mortgage had been taken before the attaching creditors had obtained any lien upon the property, yet it was not held that this fact in any way affected the conclusion announced.

The Supreme Court of California, in Chenery v. Palmer, 6 Cal. 123; the Supreme Court of New York in Delaware v. Ensign, 21 Barb. 85; and Dutcher v. Swartwood, 15 Hun, 31; the Court of Appeals of New York, in Parshall v. Eggert, 54 N. Y. 18; the Supreme Court of Wisconsin, in Blakeslee v. Rossman, 43 Wis. 116; and the Supreme Court of Minnesota in Stein v. Munch, 24 Minn. 390-all hold that where the mortgage is void for fraud as to creditors taking possession thereunder, before a lien is obtained on the property in favor of a creditor, will not render it valid. The fraud existing in the mortgage itself vitiates all steps taken under it.

Without citing further authorities upon the proposition, it seems to me clear that the cases last named announce the true rule. If the mortgage under which possession is taken is fraudulent and void as to creditors, then the effort to enforce it by taking possession under it cannot purge it of the existing fraud, nor render valid as against creditors that which the law, on grounds of public policy, declares to be fraudulent and therefore void. When a chattel mortgage, bill of sale, or other like instrument is imperfect through insufficient description, or because the property is not then in existence, or because the mortgagee did not promptly take possession, or record the mortgage, or for any reason not bottomed on fraud, then taking possession may render complete and valid that which was before incomplete; but when the invalidity of the conveyance is caused by the fact that it is a fraud upon the rights of third parties, upon what principle can it be held that enforcing the fraudulent mortgage, by taking possession under it, shall have the effect of validating it? The title and rights of the mortgagee are based upon the mortgage. He enters into possession under and by virtue of the mortgage. If the mortgage is void as to creditors by reason of fraud, the title and possession based thereon must, if attacked by creditors, fall with the foundation on which they rest. Any other rule would in most cases enable the parties to the fraud to reap the benefits of their fraudulent practices, as in that case a debtor could give a chattel mortgage upon his property to a favored creditor or friend, remain in possession, continue to sell in the usual course of trade, use the proceeds for his own purposes, and still protect the mortgage from successful attack by being sufficiently on the alert to hand over possession to the mortgagee just before the injured creditors make a levy upon the property.

As the mortgages to Louisa Wight, F. Langbein and Davis & Madary are void as to creditors by reason of the stipulations therein contained, the property passing into the possession of the mortgagees was the property of C. H. Langbein & Bro., for the value of which the garnishees must respond to the plaintiffs, so far as the same may be needed to pay the judgment in favor of plaintiffs.

MARITIME LIENS - PRIORITY. UNITED STATES DISTRICT COURT, S. D. NEW YORK. APRIL 24, 1884.

THE J. W. TUCKER.* Parties before the court, having different maritime liens of the same rank, are entitled to be paid, in case of deficiency, according to equitable priority of the liens themselves, without reference to the first arrest of the vessel.

*S. C., 20 Fed. Rep. 129.

to

Claims which are not concurrent, and not for the improvement or preservation of the ship, and not having in themselves any ground of equitable priority, are to be satisfied in the order of the dates at which they accrue. But the ordinary rule, giving priority beneficial liens of the same class in the inverse order of their dates, not to being properly. applicable canal boats and similar crafts making short trips during the open season of navigation, and laid up in the winter, held, that the rule applied to navigation on the Great Lakes should be adopted, distributing the proceeds pro rata among all claimants of the same class during the

same season.

Where two maritime liens were for towage services rendered to a canal boat upon numerous trips from New York to ports on the Connecticut river and back, during the same period, from April to November, held, that the first libellant was not entitled to priority for the payment of his whole bill, by reason of his first arrest of the vessel; but than the proceeds of the vessel, after paying the first libellant's costs, should be applied pro rata upon the claims of each, without regard to the dates at which they accrued, all being during the same season.

N December 12, 1883, the canal boat J. W. Tucker

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proceeding she was subsequently sold. After satifying the amount due on that libel with costs, the sum of $206.23 remained, which was deposited in the registry of the court. Prior to the sale the petitioner Stillman filed his libel against the boat on the 27th of December, 1883; and on the 22d day of January following the petitioner Deutz filed her petition against the same; both claiming maritime liens on the boat and its proceeds. The claim of Stillman amounts to $398.90 for various towage services rendered to the canal boat on the Connecticut river, between Saybrook, New Haven, Middletown and Hartford, during each month from April 9, 1883, to November 2, 1883. The claim of the petitioner Dentz is for a balance of $340 for towage services during each month from May to November 6, 1883, between Jersey City, Saybrook and New Haven, or Greenpoint. The claims for towage services rendered by each were in the usual course of the business of the canal boat upon her trips from Jersey City to the points upon the Connecticut river above named and back. The money in the registry being insufficient to pay the claim of either in full, the libellant Stillman claims the whole amount on the ground that the boat was first libelled and attached in his suit.

Benedict, Taft & Benedict, for Stillman.

James K. Hill, Wing & Shoudy, for Dentz.

BROWN, J. The claim of the libellant Stillman presents in its simplest form the question whether, as between maritime liens of the same rank, priority is to be given to that on which the libel is first filed aud the vessel first arrested, without regard to the dates at which the liens respectively accrued. Such was the rule declared in this district in the case of The Triumph (1841), 2 Blatchf. 433, note, and The Globe, id. 433 (1852), which has been more or less followed since. The principle on which this rule was based, in the language of those cases, is that a maritime lien "is, in reality, only a privilege to arrest the vessel for a debt which of itself constitutes no incumbrance on the vessel, and becomes such only by virtue of an actual attachment." Upon this view of the nature of a maritime lien, it is obvious that the parties first attaching the vessel must necessarily have a prior right. But this view of the nature of maritime liens, which is the foundation of the rule in question, has long since been superseded.

In the case of The Young Mechanic, 3 Ware, 58,

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