8. Where property was seized as for-
feited for an alleged violation of the
Internal Revenue Law, and, in the suit
brought to enforce the forfeiture, a
motion had been made to bond the
property, which had been denied, and
thereupon a mortgagee intervened,
and made an application on his own
behalf to bond the property:

Held, That the mortgagee stood in
no better position, in relation to the
alleged forfeiture, than the mortgagor;

That it was the thing itself which
was forfeited by the statute in ques-
tion, and not the right, title, and in-
terest of the mortgagor;

That the motion must, therefore, be
denied. England & Evans' Distillery,
486

See BANKRUPTCY, 31.
INFORMER.

J

JUDGMENT.

Bona fide judgments entered against a
bankrupt before a petition in bank-
ruptcy is filed against him are liens on
the real estate of the bankrupts, as
against the assignee in bankruptcy,
and come within the saving clauses of
sections fourteen and twenty of the
Bankruptcy Act. Smith & Smith's
Case,
432

See BANKRUPTCY, 1, 2, 6, 8, 13,
18, 22, 27.

JURISDICTION.

See BANKRUPTCY, 16.

CONSUL.

PLEADING, 6.

TOW-BOAT.

UNITED STATES OFFICER, 1.

L

LEVY.

The receipt by a sheriff of a second ex-

1.

ecution after a levy made, operates as
a constructive levy under the second
execution, and an actual levy under it
is unnecessary. Smith & Smith's Case,

LIEN.

432

Where the libellant furnished a mast
for a foreign vessel in the port of New
York, supposing that the master of the
vessel was ordering it for the vessel,
and rendered a bill against the vessel
and owners on the same day that he
furnished it, but had made no inquiry
and received no information as to
whether the vessel needed the mast,
or as to whether the master had
means or credit, or as to whether it
was necessary for him to obtain it on
the credit of the vessel; and where it
appeared that the master had at the
time means to pay for the mast, and
had contracted with parties other than
the libellant to furnish the mast, and
actually paid them for it on the day it
was put into the vessel:

Held, That there was neither a real
nor an apparent necessity for pledging
the credit of the vessel, and that the
libellant, therefore, had no lien on the
vessel;

That the twelfth Admiralty Rule of
the Supreme Court was only intended
to regulate the practice of joining
ship, freight, owner, and master in
one suit; and that the question of the
right to sue ship, or freight, or master,
or owner, for supplies or repairs, does
not depend on the twelfth Rule, but
on the general Admiralty and Mari-
time Law. The Eledona,

31

2. The fact that a vessel which is re-
paired or supplied is not in her home
port, in the absence of other circum-
stances, makes a case of apparent ne-
cessity for the credit of the vessel.

This apparent necessity may be
dispelled by proof of other circum-
stances, showing that the necessity for
the credit did not exist, and did not
appear to the material man to exist,
at the time of his employment.

An agreement for delay of payment,

An agreement to do the work on
the personal credit of an agent of the
vessel, would be sufficient to defeat
the claim of the material man against
the vessel.

The existence of such an agreement
is a fact which must be clearly proved.
The Washington Irving,
318

3. Where the agent of a vessel, some
months after repairs were done on her,
and after part payment, gave a draft
on a third party for the remainder,
which was never paid or accepted,
and was surrendered on the trial:

Held, That that did not amount to
payment, nor did it go to show that
the agreement for the work looked to
the personal credit of the agent alone.

id.

4. In an action against a vessel for supplies
furnished to her in a foreign port,
where the libel alleged that they were
furnished on her credit, and the an-
swer denied that they were furnished
on the request of the owner, or the
credit of the vessel, and averred that
the owner was in good credit in the
foreign port:

Held, That the admission that the
vessel was in a foreign port, was an
admission of an apparent necessity for
the credit of the vessel;

That, on the pleadings, the only
question was whether the supplies
were furnished. The Washington Irv-
ing,

323

5. Where repairs were furnished in
April, 1866, at New Brunswick, N. J.,
to a canal-boat, whose owner resided
at Albany, N. Y.; and no steps were
taken to enforce a lien upon the boat
for the repairs until August, 1867, al-
though the vessel was several times at
New Brunswick in the intervening
period; and where the then owner,
after the repairs were made, had mort-
gaged the boat, and she was sold, un-
der that mortgage, to a bona fide pur-
chaser, who claimed her in the suit
brought to enforce the material-man's
lien :

Held, That the lien had been lost by
the failure of the libellant to enforce
it for so long a period. The John
Lowe,

394

the building of a vessel, no lien for
their value is given by the general
maritime law. The Antelope,

405

7. Where a vessel was built at New-
burgh, New York, in 1855, and arti-
cles were furnished by the libellant
there for such building, and the vessel
left Newburgh and went to New York
city, and the libellant then filed his
libel, in 1855, to recover the value of
the articles:

8.

9.

Held, That he had no lien under the
lien law then in force in the State, be-
cause he had not filed specifications of
his lien within twelve days after the
vessel left the port of Newburgh, as
was required by such lien law;

That he had no lien otherwise, and
the libel must be dismissed.
id.

Where a vessel had been libelled by
an owner of cargo, shipped on board
and sold by her master for the neces-
sities of the vessel, and was condemned
by default and sold, and the proceeds
were insufficient to pay the libellant's
claim, and thereafter a material-man,
who had furnished supplies to the ves-
sel before the sale of the cargo, ap-
plied to stay proceedings and open the
default as to him:

Held, That the lien for the cargo
sold was prior to that for the materials
previously furnished;

That the owner of the cargo, there-
fore, ought not to be put to the expense
of contesting the material-man's claim,
and that the petition must be denied.
The Proceeds of the Grapeshot,

527

A sheriff has a lien on property cov-
ered by an assignment in bankruptcy,
for fees under an attachment previous-
ly issued and served up to the date of
the assignment, but no farther. Hous-
berger & Zibelin's Case,
504

See ASSIGNMENT, 2, 3.
CHARTER PARTY, 1.
FREIGHT.
SALVAGE, 1.

M

MARKET VALUE.

See DAMAGES, 3.

IMPORT ACTS, 2, 3, 4.

1. Specifications of opposition to a dis-
charge, under section thirty-one of
the Bankruptcy Act, and General Or-
der No. 24, must be as specific as the
grounds for avoiding a discharge after
it is granted, required by section
thirty-four of the Act. The allega-
tions must be allegations of fact, and
must be distinct, precise, and specific,
so as to advise the bankrupt what
facts he must be prepared to meet
and resist. Rathbone's Case, 138
2. An allegation that a statement in
one of the bankrupt's schedules was
false is insufficient. Such a state-
ment must be willfully false to afford
ground of objection.
id.

3. An allegation that the bankrupt
falsely testified as to a certain matter
on his examination is insufficient, if it

4. An allegation that the bankrupt "is
entitled" to certain real estate is a
sufficient specification to show that
the bankrupt has been guilty, under
section twenty-nine, of negligence in
delivering to the assignee property
id.
belonging to him.

5. Where a petition in involuntary
bankruptcy alleged that the debtor
had, "in contemplation of bankrupt-
cy," given a confession of judgment,
but it did not allege that the act was
done when the debtor was insolvent,
an adjudication could not be made
upon it as it stood, but inasmuch as
the fact that he was insolvent ap-
peared, and there was no surprise on
the debtor, the case was a proper one
for an amendment of the petition in
that particular. Craft's Case,

6.

214

Where a suit at common law was
brought against the defendant, a for-
eign consul, the declaration being in
debt, on a bond for $40,000 executed
by the defendant to the plaintiff, Sep-
tember 30th, 1851; and the defend-
ant's plea set up that the bond was
secured by a mortgage on lands in
Virginia, conditioned that, if the bond
were not paid, the plaintiff might
enter into the lands and sell them,
and retain his debt out of the pro-
ceeds, and that, on the 6th of April,
1858, after the debt became due, the
plaintiff did enter on the lands, they
exceeding in value the amount of the
debt, to sell and dispose of them, and
that he might have sold and disposed
of them, and paid his debt, but, in-
stead of so doing, he had remained in
possession, whereby the debt was
paid and satisfied; and the plaintiff
replied to the plea, setting up that
the defendant, on the 4th of July,
1855, filed a bill in Chancery, in a
State Court in Virginia, against the
Buckingham Gold Company, alleging
that he, as owner of the lands subject
to the mortgage, had contracted to
sell the lands to them, and they had
taken possession, but had not paid the
price, and praying a sale of the lands
by decree of the court, and afterward
filed a supplemental bill against the

plaintiff, praying that he might be
made a party, and that afterward, in
June, 1857, after default in the pay-
ment of the mortgage, the plaintiff
filed a bill, in the nature of a cross-
bill in chancery, in the same court,
against the defendant and others, for
the purpose of selling the premises to
pay the debt, and the defendant ap-
peared and answered the bill, and
afterward the bills came on to be
heard together, and the court made a
decree of sale, under which the lands
were sold to the plaintiff, leaving a
deficiency of $18,399, and that the
plaintiff's entry into the land was
under that sale, and not otherwise;
and the defendant rejoined, (1.) That
the court in Virginia had no jurisdic-
tion of the cause, inasmuch as the de-
fendant was a foreign consul; and,
(2.) That the plaintiff's bill in that
court was not a cross-bill; and the
plaintiff demurred to the rejoinder:

Held, That the court of Virginia
had jurisdiction of the suit brought
by the defendant; but that the suit
brought there by the plaintiff was
not a part of the defendant's suit, but
was an original suit, and therefore
not within the jurisdiction of that
court;

That the first rejoinder was there-
fore good;

That the second rejoinder was bad,
it averring that the bill of the plaint-
iff was not a cross-bill, whereas the
replication averred that the bill was
in the nature of a cross-bill;

That a strict foreclosure of a mort-
gage is a payment of the debt, but the
entry alleged in the defendant's plea
was not a strict foreclosure, but an
entry to sell and pay the plaintiff's
debt; and such an entry was no de-.
fence to the bond;

That the defendant's plea was, there-
fore, bad; and that, although the
plaintiff had replied to it, the defect
was not cured thereby, and the plaint-
iff was, therefore, entitled to judg
ment. Sagory v. Wissman, Adminis
trator, &c.,

240

7. Specifications of opposition to a bank-
rupt's discharge were filed, which
stated that he had concealed part of
his estate, and had not delivered all
his property to the assignee, and had
made a transfer of part of his property

2. Where, on such a reference, the libel-
lant was examined and partially cross-
examined, and the libellant's counsel,
claiming that the cross-examination
had been closed, refused to produce
the libellant for further cross-examin-
ation, and thereupon the claimants
applied to the court for an order stay.
ing all proceedings before the com-
missioner until the libellant was so
produced, but it did not appear that
the matter had been in any way
brought up before the commissioner:

Held, That where important ques-
tions as to leading principles arise on
a reference, it is proper practice for
the commissioner to apply to the
court for directions, but this is always
to be done on his certificate;

That where a commissioner is pro-
ceeding irregularly, or refuses to al-
low necessary testimony to be taken,
it is proper to apply to the court, on
a certificate from the commissioner as
to his proceedings, for relief;

That it is not proper to make such
application to the court unless the
question is one on which the commis-
sioner has passed one way or another,
or has refused to pass;

That, as there was here no certificate
from the commissioner as to his pro-

6.

Held, That this was an irregular
and improper mode of pleading, and
the libel must be dismissed, as not
within the spirit of the order giving
leave to amend. The Circassian, 171

Where a possessory libel was filed
by one B., claiming to be the owner
of a propeller, and that she had been
taken from him by H. and others, and
process was issued against the pro-
peller, and against such persons, un-
der which process the marshal, on
March 2d, 1868, took possession of
the vessel, taking her by force from
the representative of H. and the oth-
ers, who claimed to hold her by bills
of sale and mortgages, and, on March
10th, no appearance having been en-
tered in the cause, the libellant dis-
continued the suit, and the clerk of
the court notified the marshal to dis-
charge the vessel from custody, where-
upon the marshal withdrew from the
vessel, and B., who had been allowed
by the marshal to come on board the
vessel, took possession of her, and
took her out of the district, and there-
after H. and the others presented a
petition to the court praying that the