12 F. 152 (S.D.N.Y. 1882), The Two Marys

Citation:12 F. 152
Party Name:THE TWO MARYS.
Case Date:April 04, 1882
Court:United States District Courts, 2nd Circuit, Southern District of New York
 
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Page 152

12 F. 152 (S.D.N.Y. 1882)

THE TWO MARYS.

United States District Court, S.D. New York.

April 4, 1882

Scudder & Carter and Geo. A. Black, for motion.

H. B. Kinghorn and R. D. Benedict, opposed.

BROWN, D.J.

The libellant, on January 25, 1879, filed a libel for supplies furnished to the Two Marys during the year 1878. Process was served upon the schooner while she was in the ship-yard of Hawkins undergoing enlargement and repairs, but she was not then taken into the custody of the marshal. On the sixteenth of September following, while still in possession of Hawkins, as he claimed, she was seized by the marshal upon the waters adjacent to his yard and removed to this city. On September 22d Hawkins filed his claim as a lienor in possession, claiming to be restored to possession, and on the same day gave a bond under the act of 1847 for the libelant's claim, but did not obtain the possession of the vessel thereby, as Crowley, the captain and owner of one-sixteenth, also claimed to

Page 153

be in possession. The facts appertaining to this controversy have been stated in previous opinions of this court. 10 Ben. 558; The Two Marys, 10 F. 919.

On October 14, 1879, the marshal retook possession of the vessel under the order of this court. On October 20th Crowley filed his claim, stating that he was the master and owner of one-sixteenth; that he was in possession prior to the seizure by the marshal; and demanding that possession be restored to him. He gave a stipulation for costs, but no bond or stipulation for value. On October 24th exceptive allegations were filed to the claim of Hawkins, alleging that he had no lien or interest recognizable in this court. On October 29th Hawkins filed a petition that the libel be dismissed for want of jurisdiction, alleging that the libellant had no lien, to which petition answers were filed by Crowley and libellant, on November 21st, and upon these answers to the petition the libellant and Crowley moved that the said petition to dismiss the libel be itself dismissed. On the eleventh of December the opinion of my predecessor was filed, directing that both motions be denied, and directing a reference upon the exceptive allegations as to Hawkins' right to appear in the suit. An order of reference accordingly was entered on December 23d, and upon the report of the referee this court, in the opinion of March 6, 1882, decided that Hawkins had a...

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