Page:Federal Reporter, 1st Series, Volume 7.djvu/257

 SIMPSON V.HO STICKS OF HBWN TIMBER. 245 �$1,250 thatwas already due bythe terms of the charter, and by the charter made a lien upon the cargo, must be held to be properly brought. �I do not see that the fact that another suit had been instituted by the ship-owner to recover his freight and de- murrage, which suit was discontinued on the 24th, prior to the filing of the libel in this case, is of any importance. It appears that the cargo was not seized in the first suit until the vessel was at the berth designated by the charterer, ready to discharge the cargo, and when it was apparent that the charterer was unable to pay either freight or demurrage ; and it is obvious that it was known to the charterers that 'the suit would be no obstacle to the delivery of the cargo, piro- vided they were ready to pay or secure the amount due. �This case dilierS' in a material point from thie case of 1,266 Vitrified Pipes, 14 Blatchf. 274, relied on by the claim- ants, becanse ifi that case there was what in this case there wa's not^-a readihess and present ability to pay the ffeight. ih thaf ce,6e it was plain that if the cargo had been tehdered the freight would have been paid and the cargo receiVedV Here it is plain that if the cargo had been tehdered the freight 'would not' have beeii paid^" and the consigflee ■^as sb' informed by the aiets'of' the parties done priot to the institu- tion of this suit. ^ �The libellant is entitled to be decreed to have M lien tipou the cargo proceeded against for the sum of $4,750, with in-" terest, and to an order applying the proceeds of the cargo in the registry to the payment of the amount. ���Subsequently, on an appeal from the clerk's taxation of the bill of costs in the above action, the following opinion was rendered : �(May 13, 1881.) �Benedict, D. J. In this case the olaimants applied for a delivery of the property proceeded against, upon a stipula- ��� �