Page:Federal Reporter, 1st Series, Volume 7.djvu/120

 108 FEDERAL REPORTER. �The B. F. Woolset. �{District Court, S. J). New York. May 5, 1881.) �1. SHiPWKiGHT'8 Common-Law Lien — POSSESSION — Procbeoingb in State Court to Foreolose — Forpeiture ob Waivbr of Lien — EsTOPPEir— Conversion— Sbizurb bt Sheriff — Seizure bt Mab- SHAL — Admibalty Jubibdiction to Enfoecb Common-Law Lien — State Statuts Enlabgins Lienob's Riohts— Finding of State Court as to Amount Due, How Fab Binding. �The common-law lien of a shipwright, who takes a vessel into his possession for repairs, and continues to hold it, is too well establislied as matter of autliority to be; open to dispute. The Marion, 1 Story, 68. �Whare the libellant's ship-yafd was partly on tte libellant's prem- ises and partly on those of the town of'P., eonstituting a public dock, but used by him under an agreement \^ith th^s town, and the master of the vessel sun-endered her there into the actual custody of the libellant, who was understood by bqth parties to be responsible for 'her care and safety, althbugh the maister, who was also the owner,
 * ; . stay.cd by the vessel mostof the tims, aijd, ^'etained thjB «ook and niate,

wlio Slepton board— the presence pf the master, and the retention of the cook and mate,' not being wltti the intent to retain the custody pf �' ' the vessel, but to help in repaiWtife !and to lessen expeiises-^ ' I i.&«2(£,that the libellant had Buch' actual possesiioiiiofi the vessel &a �, would give him a common-law lien, ■^^he nature of, the possession requisite, or the acts and circumstances indicating it, varies with the �' nature of the object on which the Work is dtine. ' Alsu kilA, thatthe iact of the libellant, a shipwright, having a com- �, ■ ,iinpn-la"w? lien on a vegsel for repairs^ in instituting a suit |n the state court to foreclose his lien, ad!vertising the interest of the claimant and thai of a mortgagee in the vessel for sale at auction under a judg- �■ ment in the suit, and buying it in at the sale and ts^ing a bill of sale f roui the ireceiver, where the receiver never took actual possession, but the uninterrupted possession remained in the libellant, did not oper^te to extinguish the libellant's lien ; the state court and the United States courts (3 Fed. Rep. 457; 4 Fbd. Kep., 552) having de- «lared the whole proceeding null and void, for want of jurisdiction, as affecting the title of the vessel. There was, in f act, no sale, but merely an attempt to sell. What was done created no new title, and vested no new possession in the libellant or in any other person. Although the Ubellant, believing he had thus acquired a new title, subsequently sought to bond the vessel in this court as owner, he is not estopped by such averment as owner, in his pleading in this court or in the state court, to deny now that he ever had such title, because the fact has since been conclusively f ound against him in a litigation relating thereto between himself and this claimant. Nor did that void sale, or attempt to sell Ihe claimant's interest in the ��� �