The Steamboat Washington Irving. owner (Mott) was not present, nor, so far as was made known, had he funds in Baltimore to be applied to the payment of this bill, while Olney, also, was without money in hand, so applicable, as appears from his asking time, and his promises to pay as soon as he could get money from Washington. If it was the understanding that this vessel, which was in Baltimore temporarily, was to be surrendered by the libellant, and a delay of sixty days given for payment, it seems quite clear that the necessity for the credit of the vessel was not only apparent, but actual. An agreement for delay of payment, in most cases, is additional evidence of the existence of an apparent necessity for the credit of the vessel. "The truth is, that the maritime law presupposes a credit given, a delay of payment, an intentional postponement of the right to enforce the claim, in rem, at the same time that it creates the lien" (Story, J., 1 Sum. p. 84. See, also, the Eliza Jane, 1 Sprague, 153). But the answer further sets up the existence of an agreement between George Olney and the libellant, whereby the repairs in question were to be furnished upon the personal and individual credit of Olney, and not upon the credit of the vessel. Such an agreement, if proved, would be sufficient to defeat the claim of the libellant, and the existence of such an agreement is a fact which must be clearly proved (The Fashion, Newbury, 55). I see nothing in the attending circumstances which tends to prove the existence of such an agreement, and the decision of the point must rest, for the most part, upon the evidence given by Olney and the libellant. Upon this question the testimony of the libellant is most positive. He declares that he did the work upon the credit of the boat; that he would not have done the work upon the credit of Olney, and that he made no contract with Olney. The testimony of Olney upon this subject, when examined, appears by no means equally clear; in fact, he nowhere says definitely that the work was bargained for upon his personal credit, VOL. II.-21 The Steamboat Washington Irving. while Mr. Mott, the owner, testifies that he gave Olney instructions to draw on him for any repairs on the boat, and that he himself paid $2,500 or $3,000 on her account. It does not seem probable that Olney, under such circumstances, would have assumed upon himself the exclusive responsibility for the work, for it nowhere appears in evidence that, as between Olney and Mott, Olney was to bear the expense of the repairs. Mott was the owner then, and is the claimant now. He testifies: "I gave Olney instructions to draw on me for any repairs on her," and he does not pretend that the repairs were not for his account. The work was charged to the vessel, and to use the language of Mr. Justice Nelson, in the case of the bark Prospect, September, 1854, "There is nothing in the proofs to rebut or disprove the presumption of law, arising out of the transaction, that the credit was given to the vessel. The burden lay upon the respondent to show affirmatively that it was given-not to the ship, but to the owner." (See also the City of New York, Nelson, J., October, 1854.) As to the further fact averred in the answer, that the bill has been paid by draft, the evidence is, that some months after the work was completed, and after $800 had been paid on account, Olney gave his draft on one Healy for the balance, which was never paid, nor, as appears, accepted, and which is now surrendered. This does not amount to payment, nor does it go to show that the agreement for the work looked to the personal credit of Olney alone. Indeed, the draft, mentioning as it does upon its face the vessel, may be considered some evidence that the credit of the steamer was then considered a part of the transaction. My conclusion, therefore, is, that the libellants are entitled to recover the sum of $708.37, being the balance due upon the bill, with interest. For libellants, Emerson, Goodrich & Wheeler. For claimants, Beebe, Dean & Donohue. The Steamboat Washington Irving. MARCH, 1868. THE STEAMBOAT WASHINGTON IRVING. LIEN FOR SUPPLIES.-DOMESTIC VESSEL.-PLEADING. In an action against a vessel for supplies furnished to her in a foreign port, where the libel alleged that they were furnished on her credit, and the answer denied that they were furnished on the request of the owner, or the credit of the vessel, and averred that the owner was in good credit in the foreign port: Held, That the admission that the vessel was in a foreign port, was an admission of an apparent necessity for the credit of the vessel. That, on the pleadings, the only question was, whether the supplies were furnished. This is an action for supplies furnished by Bentley C. Bibb, the libellant, to the steamboat Washington Irving. The libel alleged that the supplies were necessary for the vessel; that they were furnished at the request of the owner in Baltimore, to which port the vessel was foreign, and that they were furnished upon the credit of the vessel. The answer admitted that the vessel was a foreign vessel, and denied that the supplies were furnished upon the request of the owner, or upon the credit of the vessel; it also averred that the owner was a person in good credit in Baltimore. Emerson, Goodrich & Wheeler, for the libellant. Beebe, Dean & Donohue, for the claimant. BENEDICT, J.-The pleadings in this case called upon the libellant to prove no more than the fact that the supplies were furnished, for the existence of an apparent necessity for the credit of the vessel is admitted, by the admission of the fact that the vessel was in a foreign The Steamboat Washington Irving. port. Where there is such an apparent necessity, the maritime law presumes that the credit of the vessel was relied on. The necessity of the repairs being proved, as has been done, the libellant is accordingly entitled to a decree, unless the facts set up in answer and proved are sufficient to repel the presumption of the maritime law. The answer in this case, when examined, is found to aver no such facts. Its only averments in defence are, that the owner of the vessel was well known and in good credit in the place where the supplies were furnished, and that the libellant had been for many months selling upon credit supplies to the vessel. There is no averment that the owner was present when the supplies were contracted for, or that his responsibility was known to the libellant, and relied on to the exclusion of the credit of the vessel, or that the supplies were furnished upon the personal credit of the owner, or of any other person. This case might, therefore, be disposed of upon the ground that, under the pleadings, the only question in dispute was the fact that supplies were furnished. But the facts proved outside of the pleadings do not amount to a defence. They are, for the most part, similar to the facts proved in the case of Young Tall against this same vessel (Ante, p. 318), and are not sufficient to warrant a finding that the transaction was other than the ordinary case of supplying the necessities of a foreign vessel. The decree must accordingly be for the libellant for the amount of the bill, with interest.* * See the case of The Grapeshot, decided by the U. S. Supreme Court, on March 14, 1870. In the Matter of Chauncey W. Moore, a Bankrupt. MARCH, 1868. IN THE MATTER OF CHAUNCEY W. MOORE, A BANKRUPT. SPECIFICATIONS OF OBJECTIONS TO DISCHARGE. Where specifications of objection to a bankrupt's discharge had been filed, and the creditors then moved for leave to take testimony, which motion was opposed, on the ground that the ground of objection alleged was an assignment made by the firm, of which the bankrupt was then a member, before the passage of the Bankruptcy Act, and consequently not within the meaning of the twenty-ninth section of the Act: Held, That the specifications not only alleged such assignment, and that it was fraudulent, but also alleged that the property had remained in the possession of some of the assignors ever since the assignment, and that this was done with the knowledge and assent of the bankrupt. That the court would not, on such a motion, pass upon the question whether such a state of facts, if proved, would amount to a fraud under the twenty-ninth section of the Act. That leave to take evidence would be granted. This was a voluntary proceeding in bankruptcy instituted by Chauncey W. Moore, who was a member of the firm of C. W. & J. T. Moore & Co. Certain creditors, opposing the discharge of this bankrupt, filed specifications of the grounds of their opposition, and thereupon, on notice to the bankrupt, moved for a trial and for leave to take testimony. The motion was opposed, on the part of the bankrupt, upon the ground that the grounds of opposition set forth in the specifications consisted of an alleged fraudulent assignment, by the firm of C. W. & J. T. Moore & Co., in 1861, long before the passage of the Bankruptcy Act, and, consequently, not within the meaning of the twenty-ninth section, which, it was contended, was limited to transactions since the passage of the Act. |