Page:Federal Reporter, 1st Series, Volume 2.djvu/831

 82e FEDEEAli EEPORTBE. �study of the testimony, with the aid of the able arguments and briefs of counsel, to come to any reasonably certain con- clusion as to which of these two classes of witnesses tells the truth in respect to this light. I think neither can be mis- taken, therefore I am obliged to hold that the libellants have not Bustained the burden of proof which is upou them to show that they had a light. Libel dismissed, with costs. ���ToPFEB V. The Sohooner Mary Zephyr, etc. �{District Court, D. Oalifornia. May 19, 1880.) �Fdnd in Regisïky — Advances by Part Ownbr — Statutort LtEîr— CrviL Code Califoenia, f 3055. — Where the part owner of a ship haa a statutory lien for advances, (Civil Code California, } 3055,) as against a co-owner, he may be pald out of surplus proceeds remaining in tha registry of the court. �Petition against Proceeda. �HoFPMAN, D. J. It cannot be disputed that the petitioner to establish his right to be paid out of the surplus proceeds re- maining in the registry, must show not merely that his co- owner is indebted to him, but that he had a lien upon the vessel for the debt. �This court cannot, in an admiralty suit, exercise the func- tions of a court of bankruptcy and distribute the surplus pro- ceeds of a vessel sold under its decree among the general creditors of the owner. But the privilege, or jm in rc, which the court in such cases will recognize and enforce need not necessarily be a maritime lien, or a lien on which an original suit in the admiralty oould be brought. Thus a mortgagee, though his rights could not be enforced by a libel to foreclose, may, nevertheless, claim and receive as against the mortgagor the remuants and surplus in the registry, and apply them in satisfaction of his mortgage. In like manner the lien of an attaching crediter will be respected after the satisfaction of ����