Page:Federal Reporter, 1st Series, Volume 7.djvu/687

 THK BklG WEXFORD. 675 �That their claim was iiot entitled to any favor as against subse- quent lienors not guilty of laches, and was riglitlypostponed by the commissioner to that of the other material men ; that even thc urst mortgagee bad also the right to insist upon the waiver. �Also hdd, that the flrst mortgagee's possession, to entitle Mm to a lien on the f reight, must have been such as to termlnate the owner's possession, and that having f ailed on the evidence to show he had the actual custody of the vessel, so as to earn the *reight, by delivering the cargo, he had no lien thereon. �Aho hdd, that the master was entitled to a lien for wages and extra wages, under the British shipping act, equally with the sea- men, there being no evidence that he had caused the delay in pay- ment. The lien for wages extends to extra wages. 3 Fed. Rbp. 577. �Also held, that the claim of C. & Co., as against the owner, was in the nature of a disbursement by the mastei for the ship, for which he had a lien on the freight under the British shipping act. �Also hdd, that the voluntary omission of the seamen in not attach- ing the freight did not prevent the admiralty court from marshalling the assets, and that both funds being in court, and all the parties heard, it was unnecessary to compel the seamen to aie a petition against the freight in order to effect such marshalling of the assets. �That the flrst mortgagee having suflered the owner to remain in possession and employ the master, the latter's lien was entitled to priority over his. �Aceordingly hdd, (the exceptions not raising the question whether material men are prevented from acquiring a lien against a British vessel in a foreign port by reason of the provisions of the British merchants' shipping act,) that after paying the commissioner's fees out of the vessel and freight in the proportion of the two funds, the claim of C, & Co.,the seamen, and the master, in the order named, should be paid out of the freight. �That out of the proceeds of the vessel should be paid the amounts due the pilot, material men, and balance due the master, in the order named, and the remaining proceeds of vessel, if any, to mortgagee. �In Admiralty. �mil, Wing e Shoudy, for mortgagee. �Beebe, Wilcox de Hobbs, for Crocker Brothers & Co. �W. W. Goodrich, for master and seamen. �George A. Black, for Crossman and others. �Choate, D. J. The brig Wexford, an English vessel belong- ing to Nova Scotia, was libelled in this court in a suit for sea- men's wages, The libel was against vessel and freight, but process issued only against the vessel. She was condemned and sold, and the amount of the proceeds of the vessel in the ��� �