Page:Federal Reporter, 1st Series, Volume 10.djvu/934

 a22 FEDSSAL BEFOBTER. �has been taken. On behalf of the libellant it is claimed (1) that Hawkins never had any lien upon the vessel; (2) that if lie ever had such a lien it was lost by surrendering the vessel before the seizure by the marshal on the sixteenth of September, �1. The lien claimed is simply that of a common-law possessory lien by Hawkins, the shipwright, for repairs while in bis possession. The libellant eontends that he never acquired any common-law lien, for the reason that he was notified by several of the owners, before proceeding with the work, that they protested against the proposed repairs; that, consequently, neither such owners nor their property could be made liable for repairs made against their consent; that no lien could, therefore, bind their interest in the schooner ; that there could be no common-law lien upon the interests of part owners only; and that under such circumstances the repairs must be presumed to have been made upon the personal credit of those who ordered them. It is also contended that Hawkins never had such exclusive posses- sion as would sustain a common-law lien. �The vessel was sent by the libellant, about December 1, 1878, to Hawkins' ship-yard at City Island to be repaired, with directions to make first a preliminary examination to ascertain how much repair was necessary. The schooner was hauled on the ways and fouud to be in need of greater repairs than were anticipated. In February, 1879, after the libellant had acquired almost the entire interest in the vessel, it was determined to substantially rebuild her. Captain Crowley accompanied the vessel to the yard, and remained with her a few days. The mate, Lawrence, in the employ of the libellant, remained with her while the repairs were going on, down to the time of her seizure by the marshal. He slept in the cabin until it was re- moved in the course of the repairs, and then continued to sleep in it, near by, until he was again put aboard the vessel. His meals were furnished by the libellant. He did such work as was assigned to him by Hawkins upon the schooner, as well as some odd jobs upon other vessels. The work of doing the repairs and rebuilding was under the exclusive management and control of Hawkins. While this was going on, the vessel, in my judgment, must be deemed to have been in the possession of Hawkins sufficient to sustain a common-law possessory lien. The presence of the mate during these repairs, in the pay of the libellant, whether as seaman or assistant, or for any other purpose, in looking after the interest of the libellant, was in no way incompatible with Hawkins' control of the work upon the vessel while in his yard undergoing repairs, or his possession for ��� �