Page:Federal Reporter, 1st Series, Volume 7.djvu/693

 THE BRIO WEXFORD. 681 �thereof. The Ann C. Pratt, ut supra. The attempt to show by testimony that the second mortgage was not so taken, was not, I think, successful. The testimony of the agent was evasive and unsatisfactoiy. The first mortgagee has also right to insist that the laches and subsequent acta of these parties, by the rules of the maritime law, amount to an abso- lute waiver and abandonment of the lien, or claim, against the vessel. The Boston, Bl. & How. 327; The President, 4 Wash. 453; The Key City, 14 Wall. 660. And both these points are, I think, made out. Whether Crocker Brothers ife Co. ever had a lien (aside from the question of the ship being English) I do not pass upon. It is, at the best, very doubt- ful, both on aecount of the slight evidence of their giviftg credit to the vessel, and their means of knowledge of the owner's residence. �As no exception is taken to the allowance of the claims of the other material men, I am not called upon to decide the question, as to them, whether the fact that the vessel was English prevented their liens from attaching. �The claim of the mortgagee that he took 'possession of the vessel before the discharge of the cargo, so as to entitle him to the freight as against the owner, is not sustained by the evidence. The proof is that he came on board the vessel with a man whom he employed to act as a ship-keeper, found the mate and steward on board, the master being absent ; that he told the mate that he took possession under his mort- gage, reading to the mate as much of his papers as the mate was willing to listen to, and then lef t ; that he told the ship- keeper that he need not remain on the vessel all the time ; that the ship-keeper in fact then only remained about an hour, when he left. Thete is evidence that the ship-keeper subsequently returned and was on the vessel more or less down to the time of the discharge of the cargo. There is no evidence that the mortgagee ever took the actual eustody and possession of the vessel. Prior to his going on board, the master and crew were in possession as agents of the owner. The possession of the mortgagee, to avail him at ��� �