Page:Federal Reporter, 1st Series, Volume 3.djvu/467

 recoupment. The defefjtdantWhiteheaddëniëdtlieplaintiff's lien, and set up his mortgage, and denied Ihe jurisdiction of the court. The cause was tried by the court without a jury. The judge found that the plaintifif was in possession and had a lien for the amount claimed, and that the lien was supe- rior to the lien of the mortgage, and that the plaintiiï was entitled to a judgment of f oreclosure and sale of said schooner, with costs and the expenses of the action, and for the defi- ciency, if any, against the defendant Terrell. Judgment was entered that the schooner be sold at public auction, by a ref- eree appointed for that purpose, upon ten days' public notice, either or any of the parties to be at liberty to purchase, and that the referee execute a bill of sale to the purchaser; that the proceeds be applied to pay costs of sale, the plaintifs costs and expenses, and debt,-— the surplus, if any, to remain Bubject .tothe order of the court,— and that the defendant Ter- rell pay thô deficienôy, if any, for which the plaintiiï is to have execution ; that the purchaser be let into possession on production of the bill of aale, and that the defendants, and ail persons claiming under them, bftforever barred and foreclosed. of allriglii, title,;or interest and equity of redemption in the said schooner. , The judgment was afterwards ,amended by appointing a receiver, instead of a referee, to carry it into eifïect. The claimant Hawkina became the purchaser at the receiver's sale, aiid holds the. bill of sale executed iu pursu- a'nce of the judgment. �; The only question is whetHer the state court had jurisdic- tion, orpower and authority, to direct by judgment the sale of the vessel, or, rather, of the defendants' interest therein ; for the proceeding does not purport to be, in a strict sense, a pro- ceeding in rem, — that is, against ail the world, — but only a pro- ceeding affecting by judgment and sale the right, title, and interest of the defendants sued in this action. �It has been argued on behalf of the claimant Terrell that the testimony in the case did not show any possession on the part of the plaintiff in the action ; that the finding of the court was in respect thereto against the evidence, or without ����