DAVIS et al. v. NEW BRIG, 7 F. Cas. 144

On the 16th September, Judge HOPKIN-SON delivered the following opinion: The objections to the account of George W. Lehman, are withdrawn, and it is agreed that no proof has been given to support the special agreement alleged in the answer. Other questions of law have been raised to defeat the claim of the libellants, at least, in this mode of proceeding. It is alleged that, by the act of assembly under which the lien is claimed, and without which no proceed ng can be sustained against the body of the ve.;-sel, this suit cannot be entertained, by the court, in its present form.

That it now appears that the brig was sold by the respondent, Jacob Tees, who built her, to Charles Harper and others, who are now the owners; that with them no contracts for these materials were made by the libellants; and that Tees, with whom the contract was made, is no longer the owner, nor was he so, when this libel was filed.

On these facts it is contended, that, as the act of assembly gives the lien or charge upon the vessel, only for the payment or security of debts contracted by the masters or owners thereof with the mechanics and materialmen, and as no such contract was made with the present owners, the provisions of the act of assembly do not apply to this case. The injustice of this argument is so manifest and the frauds it would sanction so destructive of the objects of the law, that I could not hesitate a moment to reject it.

Jacob Tees, the builder and owner of this brig when the contract was made, is the claimant and respondent to this libel; he is the party disputing the right of the libel-lants in this court. He does not deny his ownership, or put that fact in issue; on the contrary he claims the brig as her owner.

But independently of this state of the case on the face of the pleadings, can it be supported that the lien and security given by the act of assembly to mechanics who build a vessel, and to the men who furnish the materials of which she is constructed, may be lost and defeated by a transfer of the vessel by the owner, with whom they did make their contracts, and to whom they did furnish their work and materials, to a stranger with whom they had no contract or dealing? Can they, in this way, be turned from the person, with whom they did contract, to one they had nothing to do with? Can they, by

an act of the other party, to which they were not consenting or privy, be deprived of the substantial security on the body of the vessel given to them by the law, and be turned over to the personal responsibility of a man who may not be worth a farthing?

The person, with whom they made their contracts, replies, “I am not the owner of the vessel;” and the owner says to them, “I am not the person with whom you made the contracts.” When the act of assembly speaks of masters and owners of a vessel, it is most manifest it intends the masters and owners at the time the contract was made, the work done, or the materials furnished, and not those who might afterwards become so. The lien on the vessel attached when the materials were furnished, and it cannot be afterwards divested by the act of one of the parties.

In this case the ownership of Tees continued until after the brig was launched; until that time the sale to Harper was contingent, and the right of Tees in her as her owner was full and complete. If this construction of the act, upon a change of the owners of a vessel, be sound, the same must be applied to a change of the master; and has it ever been suggested that the lien of a contract, made with the master of a vessel, is lost by the appointment of a new master?

Now as to the custom alleged in this case, to sustain this part of the defence, it was incumbent on the respondent!» show one clearly and uniformly well known and understood, so that it must be presumed to have been part of the contract between the libel-lants and respondents, that the mechanics and materialmen of a véssel built in this port on speculation, are bound, by virtue of the custom and without any express agreement or understanding to that effect, to wait for the payment of their debts, until the vessel is finished and sold; and to forego and postpone all legal remedies and proceedings, for the recovery of their claims, until she is sold.

No witness has testified to any such usage; on the contrary, the evidence rather gives a negative to any such pretension. The fair result of all the testimony upon this point is, that there is a sort of understanding that in such a case, that is, of a vessel built- for sale, or, as it is called, on speculation, the mechanics and materialmen will not press for their debts until she is sold, because it is for their own advantage. It is an acquiescence in the delay of payment for their own advantage, and not by or under any obligation on their part, or any contract implied with their employer.

No witness has said or suggested that, in such a case, the materialmen are bound by any usage or understanding of the trade, not to sue for their debts, or that they have abandoned or surrendered any of their legal rights or remedies, or given up their claim or lien on the vessel, or any other security for their debts. All beyond this must be the subject of a special arrangement or contract between the builder and the persons from whom he obtains his materials or labour. A number of witnesses have been produced to support this part of the defence; to wit, John Vaughan, Mr. Vandusen, W.

Vanhorn, Samuel Green, John W. E.vre, with others; all experienced ship builders, or concerned in furnishing ships. Mr. Eyre said. “When a vessel is built on speculation, the understanding is, that the materialmen are to wait until she is sold.” On a question from the court, in relation to a vessel built by himself on speculation or for sale, “my understanding was, that the materialmen were to wait a reasonable time to sell the vessel.

I made an agreement with one of the men to wait six months.” This is very different from the assertion of an uniform obligatory custom, which binds the materialmen to wait for the sale of the vessel, before they can claim a payment of their debts. But Mr. Eyre adds, “I thing the materialmen do not give up the vessel.” If he is right in this opinion, and it can hardly be questioned, it is absolutely destructive of the custom set up; entirely inconsistent with it.

If these debts are not to be paid until the vessel is sold, and they are to be satisfied from the proceeds of the sale, it is clear, that this fund cannot be received until the vessel is delivered to the purchaser without incum-brance; and, of consequence, that she passes into the hands of the purchaser clear of the liens of the mechanics and materialmen, who will have only the personal security of their employer for their debts, and must depend altogether upon his ability or integrity to appropriate the money received by him to the discharge of their claims.

Every witness rejects this consequence, and, of course, denies the premises from which it must follow. Other objections have been made to this custom, and counter evidence was produced, which it is unnecessary to examine, as, in my opinion, the testimony of the respondent entirely fails to support it. [NOTE. The vessel having been sold, and the proceeds brought into court, numerous claims were filed, which were referred to an auditor for liquidation, and the cause was subsequently heard on exceptions to his report.

Case No. 0,-090.] Nothing remains but the appeal to the discretion of the court, not to order a sale when, from the pressure, as it is said, of the times, a sacrifice of the property will be made. I have no such discretion. The-rights and remedies of a creditor, against the person or property of his debtor, are given to him by the law, and a judge has no power to resist them on speculative opinions concerning their effect. If they are denied, or interrupted, or delayed, it must be by the law, and not by the discretion of the judge; unless when the law imparts such a power to him.

The sales by the sheriffs are not stopped by the courts for such reasons. We see every day sacrifices of property to a vast extent If the pressure of the times distresses the debtor and depreciates his property, it also reaches the creditor, and makes it the more necessary for him to collect the debts that are due to him; and prevent, perhaps, a sacrifice of his own property to satisfy his creditors. This appeal for indulgence, if I bad the power to afford it, could not prevail in this case. We have no explanation of the real situation or object of this sale of the brig by Tees to Harper.

If it is a real bona fide transaction, and Hr. Harper has truly paid to Tees the purchase money, why has not Tees paid with it the just and undisputed claims of the libellants? He is the party respondent before the court, and the claimant who takes defence, and prays for this forbearance. On the contrary, if' Mr. Harper has not paid the consideration money of the purchase, why does he not at once come forward and pay these claims, and take his credit for them in his settlement with Tees? Decree: That the vessel be condemned and sold according to the prayer of the libel. .