The New York herald., 1879-10-15
THE COURTS.
Responsibility of Marshals in Charge Of
Vessels in Libel Suits.
A LAWYERS CONTINGENT FEE.
\ '-Warsman's Escape
from Geological Pursuits.

Judge Choate. sitting in Admiralty yesterday, de-
clared very important decision. In tho of the
libel snit of David W. Mclean against the schooner
Two Marys This is q libel for supplies and mate-
rial furnished to domestic ship, on which a lien
claimed in the libel under the laws of this
State On this motion libel was issued. returnable
February IL. 1879. At the time the Marshal ut
tached the schooner an order for publication
of notice for all persons in interest to ap-
pear and intervene was made, but no publication
was made. Tho Marshal. at tho request of the
lbellant put no keeper board. the vessel at the
time being hauled out OF the waters undergoing
repairs Subsequently an order made directing
tho Marshal to take the vessel into his custody under
the original process and place keeper In charge.
few days thereafter party appeared as claimant.
averring that at tie time OF the seizure he was in
possession OF the schooner repairing her. an claim
ing common law lien therefor to the amount OF
$4,000. giving bond for that amount, on which an
Marshal. therefore, gave notice to tho keeper
to discharge the vessel The claimant presented the
notice to the keeper but declined to give up the
tice. The libellant Proctor ard one Crowley who
claimed to be master. board at tho time.
The question from conflicting testimony arises
whether u demand was made for the delivery Of the
vessel by the claimant. The Court, however, was
satisfied that the libelant and Captain Crowley, as
well the keeper understood that he there for
the purpose or taking possession OF the schooner
upon the discharge OF the attachment The claim
ant Hawkins i'll the controversy that ensued was by
the procurement OF the parties In charge-the Mar
shal and the libellant-put under arrest aud
compelled to leave the vessel 1t appeared that tho
claimant refused to exhibit his authority to receive
tho vessel to the Hbellant and Captain Crowley
claimed to be In possession by the discharge Of the
attachment. Although the customary order for dis
charging the arrest OF vessel is simply that she is
released from custody yet it is the duty of the Court
the dissolution Of attachment under it's pro-
to be restored to tho party who in posses
sion at the time the officer OF the Court took into
custody The process OF the Court in its execution
and discharge must not be used the means of
taking vessel from one party and giving it to
other without regard to whether she therefore falls
into the hands Of her strangers or
thieves. It is tho Marshal's duty upon the
termination Of his custody to replace her in the pos
session OF the party from whose possession he took
her. An admiralty suit in rem proceedings In proper
course Is suit against all the world. against Who
has claims to havc interest in tho vessel
and where the proper notice is given, including the
publication OF notice to all persons Interested to
tervene according to the rules and practice of the
court all persons who do not appear are in default.
and "a claimant who does not appear and give
bond for value. under the uct' OF 1S4r
for double the amount OF libellant's claim, and
whose right to intervene claimant Is not chal-
entitled to the possession. In this case, II publica-
tion had been made and the default Of all persons
not appearing had been entered. Crowley could not
dispute the right of the claimant Hawkins to the
possession of the vessel the discharge Of the
arrest. But. publication having been made, the
libellant cannot now dispute Hawkins claim.
In conclusion, the Court thinks that the order
the Court for the release OF the vessel has not
been duly executed. The Marshal ought not to
have withdrawn his keeper after party who had
been admitted to appear and board the vessel. and
who had exhibited to him the order for her release.
had been excluded from the ship. 1t Is. therefore
for the Court to order the Marshal TO re-
take the vessel under his original process IL the
order for her release has not been duly executed.
The Court ordered. leaving all disputed points to
be before the Court on the testimony OF the