for which he might have a lien on the vessel] the respondent gave notice of appeal, but took no steps to perfect his appeal for several days, and the owners applied to the court for leave to bond the vessel. Held, that the court would not grant leave to bond the vessel, but would direct that the decree be executed, unless the respondent [the master] perfected his appeal and procured the cause to be transmitted to the appellate court within two days. Muir v. Brig Brisk and Alfred Morine, 4 Ben. 252.

22. (March, 1871.) A stipulation for value was given on the discharge of a vessel from custody, fixing her value at $1,750, and containing an agreement that, "in case of default or contumacy on the part of the claimant or his surety, execution for the above • amount may issue," &c. The stipulation bore a heading that it was "entered into pursuant to the rules and practice of the court." A decree being afterwards entered against the vessel for $3,767.29, the libellant claimed to be entitled to recover interest at the rate of six per cent from the date of the stipulation. Held, that the terms of the stipulation made the rules of the court a part of the contract, and that, under the provisions of Rule 71,1 interest on its amount from its date must be paid, in addition to the $1,750. The Steam Propeller Belle, 5 Ben. 57.

23. This rule, and the fact that it is made a part of the stipulation, is not noticed, in the case of the Ann Caroline (2 Wall. 538), which would seem to hold the contrary view. Ib.

24. (Sept., 1878.) A libel was filed against a vessel on a bottomry bond. The default of all persons was entered except that of a claimant who was in possession at the time of the attachment of the vessel, claiming under mortgages overdue and unpaid. The vessel was sold and the proceeds paid into court. Both parties applied for leave to bond the proceeds. The libellants claimed that evidence already taken by the claimant, if unexplained or uncontradicted, established their right to the amount of their bottomry bond as against the vessel. Held, that though in a clear case, when the rights of the libellant were admitted, the court might permit him to take the money from the registry on giving proper security for its return, such was not this case, the libellants' right being denied by the plead

1 Of the District Court.

ings, and the court would not prejudge it on a partial production of the evidence. The Bark Archer, 10 Ben. 99.

25. Motion of the libellants denied, and motion of the claimant granted. Ib.

26. (Dec., 1878.) A stipulation for value can be substituted for property in custody, at any time, by order of court. The Sloop Martha C. Burnite, 10 Ben. 196.

27. At any time before default, property in custody may be bonded in pursuance of sec. 941 of the Revised Statutes of the United States, without any other condition than is prescribed in that section.

Ib.

28. But whether it can be bonded as a matter of right after default, quære. Ib.

29. (June, 1879.) A boat of the Brooklyn Annex line, running from Jersey City to Fulton Street, Brooklyn, came in collision with a barge in tow of a tug coming down the East River just outside of the piers. As a consequence of the collision the ferry-boat sank. Suit was brought for damages, and the same person appeared as claimant for both tug and tow when they were both libeled, and gave a single stipulation for value to stand for both vessels, by consent. Held, that, under the practice adopted in giving a single stipulation for both, it was not necessary to decide which of them was in fault, if only one. The Tug John Cooker and The Barge James W. Eaton, 10 Ben. 488.

30. (Oct., 1879.) A libel was filed against a domestic vessel on Jan. 25, 1879, to recover for supplies furnished to her. Process was issued to the marshal, who returned that he had attached the vessel. At the libellant's request no keeper was put by the marshal on board the vessel, which was then undergoing repairs at City Island. No notice to appear was ever published. On Sept. 16, 1879, on motion of the libellant's proctor, an order was made that the marshal take the vessel into his custody under the original process and put a keeper on board. The marshal did so, and removed the vessel from City Island to a pier in the East River. H., the shipwright who had been repairing her, appeared as a claimant, averring that, when the vessel was seized by the marshal, he was in possession of the vessel, on which he claimed a common-law lien. He gave a bond under the act of 1847, and an order was made in the usual

form for the release of the vessel, and the marshal gave him a notice to the keeper on the vessel to discharge her, with which he went to the vessel. C., the master of the vessel, who was also one-sixth owner, was on board, and so was the proctor for the libellant. A controversy arose between them, which resulted in H.'s being arrested by a police officer and compelled to leave the vessel. He had shown the marshal's notice to the keeper, but refused to leave it with him or to show it to the other parties. After his arrest the keeper left the vessel in the possession of the master. H. then moved the court for an order directing the marshal to retake the vessel and restore her to him. The master opposed the motion, claiming that he, and not the alleged claimant, was in possession of the vessel when the marshal retook her under the order of September 16. The libellant also opposed the motion, denying that he had notice of the claimant's application to bond the vessel. Pending the motion the court made an order directing the marshal to take the vessel into custody and hold her until the determination of the motion.

Held, that it is the duty of the court, on the dissolution of an attachment against a vessel under its process, to cause the vessel to be restored to the party who was in possession at the time when she was taken under the process;

That where there are two different parties, each claiming to have been so in possession, the marshal ought not, on the dissolution of the attachment, to deliver her to either without the order of the court;

That, in this case, the order for the release of the vessel had not been duly executed, and the court therefore had jurisdiction to order the marshal to take her into his custody again, under the original process ;

That the libellant's default as to the bonding of the vessel should be opened, and he have leave to file objections to the right of H. to appear as a claimant ;

That new publication of notice to all parties to appear be had, on the return of which, C., the master, would have the opportunity to appear and aver his possession at the time of seizure; and the question between him and H. could be then properly settled. The Schooner Two Marys, 10 Ben. 558.

31. (April, 1870.) A vessel discharged from arrest upon giving bond or stipulation returns to her owner forever discharged

from the lien which was the foundation of the proceedings against her, and the court has no power to order her to be arrested again. The Old Concord, 1 Brown, 270.

32. It seems, where the sureties become insolvent, the court may require the claimant to furnish new sureties, on penalty of contempt, and of being denied the right to appear further and contest the suit. Ib.

Rule 12. · Material-Men.

In all suits by material-men for supplies or repairs, or other necessaries, the libellant may proceed against the ship and freight in rem, or against the master or owner alone in personam.

1. (Feb., 1819.) The admiralty possesses a general jurisdiction in cases of suits by material-men, in personam and in rem. The General Smith, 4 Wheat. 438.

2. (Feb., 1824.) Material-men have a lien which may be enforced by a proceeding in the admiralty, in rem, for necessaries or supplies furnished in a port to which the vessel does not belong. The St. Jago de Cuba, 9 Wheat. 409.

3. (Jan., 1827.) Quare, whether a suit in personam in the admiralty may be maintained against the owner of a ship by material-men furnishing supplies for the ship in her home port, where the local law gives no specific lien upon the ship which can be enforced by a proceeding in rem. Ramsay v. Allegre, 12 Wheat. 611.

4. However this may be in general, such suit cannot be maintained where the owner has given a negotiable promissory note for the debt, which is not tendered to be given up or actually surrendered at the hearing. Ib.

5. (Jan., 1833.) A libel was filed in the District Court of the United States for the Eastern District of Louisiana, against the steamboat Planter, by H. and V., citizens of New Orleans, for the recovery of a sum of money alleged to be due to them, as shipwrights, for work done and materials found in the repairs of the Planter. The libel asserts that, by the admiralty law and the laws of the State of Louisiana, they have a lien and privilege upon the boat, her tackle, &c., for the payment of the sums due for the repairs and materials, and prays admiralty process against the boat, &c. The answer of the owners of the Planter avers

that they are citizens of Louisiana, residing in New Orleans; that the libellants are also citizens, and that the court has no jurisdiction of the cause. Held, that this was a case of admiralty jurisdiction. Peyroux v. Howard, 7 Pet. 324.

6. In the case of the General Smith, 4 Wheat. 438, s. c. 4 Peters's Condensed Reports, it is decided that the jurisdiction of the admiralty, in cases where the repairs are upon a domestic vessel, depend upon the local law of the state. Where the repairs have been made or necessaries furnished to a foreign. ship, or to a ship in the ports of a state to which she does not belong, the general maritime law gives a lien on ships as security; and the party may maintain a suit in the admiralty to enforce the right. But, as to repairs or necessaries in the port or state to which the ships belong, the case is governed altogether by the local law of the state; and no lien is implied unless it is recognized by that law. But if the local law gives the lien, it may be enforced in the admiralty. Ib.

7. The services in this case were performed in the port of New Orleans, and whether this was within the jurisdiction of the admiralty or not, depends on the fact whether the tide in the Mississippi ebbs and flows as high up the river as the port of New Orleans. The court considered themselves authorized judicially to notice the situation of New Orleans, for the purpose of determining whether the tide ebbs and flows as high up the river as that place; and being satisfied that, although the current of the Mississippi at New Orleans may be so strong as not to be turned backwards by the tide, yet the effect of the tide upon the current is so great as occasions a regular rise and fall of the water, New Orleans may be properly said to be within the ebb and flow of the tide, and the jurisdiction of the admiralty prevails there. Ib.

8. In order to the decision whether the admiralty jurisdiction attaches to such services as those performed by the libellants, the material consideration is, whether the service was essentially a maritime service, and to be performed substantially on the sea or tide water. It is no objection to the jurisdiction of the admiralty in the case, that the steamboat Planter was to be employed in navigating waters beyond the ebb and flow of the tide. In the case of the steamboat Jefferson it was said by this court that there is no doubt the jurisdiction exists, although the commence