APPEAL from the Circuit Court of the United States for the Southern District of New York.
In July, 1870, Buckman & Co., having done work and furnished materials amounting to $3,597.37 in repairing the 'Edith,' while she was lying in navigable waters in her home port of New York, claimed a lien on the ship for materials and repairs, under an act of the State of New York, entitled 'An Act to provide for the collection of demands against ships and vessels,' passed April 24, 1862. Acts of 1862, p. 456. The requisite notice was filed the twenty-seventh day of July, 1870, a few days after the vessel had left that port. Some time after her return, the precise period not appearing, proceedings were instituted by the firm, and an attachment was issued to the sheriff of the city and county of New York, who, after seizing her, discharged her on a satisfactory bond for the claim having been given on behalf of the owner. On the first day of April, 1871, she was libelled in the District Court of the United States, sitting in admiralty, and sold under a decree rendered on the 8th of the following month. After satisfying the decree and subsequent costs, there remained $31,176.82 in the registry of the court. On the 17th of the latter month, the firm filed their petition in that court, praying that so much of the fund as was necessary be applied to the payment of the amount so due them, which they claimed was, at the time it accrued, a lien on the 'Edith,' she being a domestic vessel belonging to the port of New York. At the time of filing the petition, a suit by the firm on the bond, which had been given to release her from the attachment, was pending in the State court.
The petition was resisted by Sedgwick, the assignee in bankruptcy of the owner of the 'Edith,' and by Tyler. To the latter more than the amount of the fund was then due from the owner, who had executed a mortgage therefor on three-fourths of the vessel, Jan. 11, 1870. The instrument was recorded the same day in the New York custom-house, and a copy of it filed in the office of the register of the city and county of New York. There was also a prior mortgage on one-half of the vessel.
The District Court decided that Buckman & Co. had not a lien on the ship, nor any title to such fund as between them and the assignee in bankruptcy and the mortgagees.
The petition of Buckman & Co. was dismissed; and they appealed to the Circuit Court of the United States for that district, whre a decree of affirmance was passed. They then appealed to this court.
Mr. F. A. Wilcox for the appellants.
Mr. E. P. Wheeler, contra.
MR. JUSTICE STRONG delivered the opinion of the court.