The Brig Nestor. It does not require the lien to be enforced before the voyage is completed. It allows the party to give credit, because it is for the general benefit of navigation and trade. It is not necessary to say, that the lien is indelible; or that it may not be lost by gross neglect and delay to enforce it, at least where the rights of other persons have intervened. But, as in cases of seamen's wages and bottomry bonds, it requires only reasonable diligence in enforcing the claim at a proper time, and under proper circumstances. The Admiralty will not in cases of this sort sit for the purpose of enforcing stale claims, any more than in other cases, where its jurisdiction is sought. But, where the claim is recent, and the proceedings are had within a reasonable time, and in good faith; where there has been a clear case of necessity, and a credit given to the ship, the maritime law will not suffer the lien to be defeated by the mere departure of the ship from the port with or without the consent of the material-man. His giving credit to the ship for the voyage, or for a definite period, is not inconsistent with a positive intention to hold the ship bound for the payment by a tacit hypothecation or lien. It is not an election to rely exclusively upon the personal credit of the master or owner. His right, not growing out of possession, is not affected by the removal of the ship from the place, where possession may be enforced, or may be suspended. A suggestion has been thrown out, that there is a difference between giving credit indefinitely, and for a time certain; for that in the latter case the remedy in rem is necessarily suspended during the fixed period of the credit. So is the remedy in personam during the same period. But this circumstance does not defeat the security in rem, any more than in personam, as soon as the credit has expired. There is no difficulty in supposing the existence of a lien for a debt solvendum in futuro. If a bottomry bond were payable in thirty The Brig Nestor. days after the safe arrival of the vessel, the additional period of credit would not defeat the hypothecation. If seamen's wages were by the contract not payable until ten days after the voyage was completed, it would not disturb the lien on the ship for those wages. The lien has in all such cases an inchoate existence from the moment of the contract, and attaches sub modo on the ship. The lien for seamen's wages attaches ordinarily on the ship during the voyage, although no wages are strictly due until the end of the voyage. sale of the ship, pending the voyage, would not defeat this inchoate lien; and when the voyage was completed, the lien would have relation back to the commencement of the voyage. A There are analogous cases of liens even at the common law, where there is no possession, and where credit is given for a fixed period. Such is the lien of a vendor of real estate for the purchase money. Possession is not necessary to maintain that lien; neither does a long fixed credit annihilate, or suspend it. Yet the argument would apply at least as forcibly in such a case, as it does to the case now in judgment. The case of Ramsay v. Allegre (12 Wheaton R. 611.) does not in the slightest degree impugn the foregoing reasoning. That case (in the judgment of which I concurred) was founded upon a very different principle. There, the materialman had received a negotiable promissory note, payable at four months, for the amount of his debt, as conditional payment. The note had not been paid; but it was still outstanding, and had never been surrendered; and it did not appear, that it had not in fact been negotiated. Under such circumstances the Supreme Court held, that a libel by the materialman could not be maintained. Now, there are two considerations proper to be noticed with reference to this case. The first is, that the taking of such a note is primâ facie a presump The Brig Nestor. tive extinguishment sub modo of the debt; and if it had been actually negotiated, whether paid or not, the creditor could have had no right to recover his debt, as the debtor would still be responsible to the holder of the note; and he ought not to be twice liable for the same debt. The second is, that the receiving of such a note is direct proof, that credit is given to the personal responsibility of the owner, and presumptive proof, that no credit is given to the ship; or, in other words, that there is a waiver of any lien on the ship. It cannot be ordinarily presumed, that a ship-owner, giving a negotiable note for supplies, intends at the same time, that a lien shall exist on the ship itself for the debt; for then the lien might be in the hands of one person, and the negotiable security in the hands of another. To bring the present case within the reach of that decision, it should be shown, that a promissory negotiable note of the master or owner had been taken by the libellant. I have the most confident reasons to know, that the decision of the Court in Ramsay v. Allegre was not intended to shake any part of the doctrine in the case of The General Smith. There is a case decided by Lord Stowell, upon a principle analogous to that in Ramsay v. Allegre. A seaman elected to take a bill of exchange on the ship-owners for the amount of his wages; and the bill being afterwards dishonored, and the owners having become bankrupts, he sought a remedy in rem against the ship, for his wages. But Lord Stowell dismissed the libel.1 Without going more at large into the argument, my judgment is, that the libel is well founded in point of jurisdiction; and that there has been no waiver of the lien implied by the maritime law for these supplies. Indeed, the moment the tes 1 The William Money, 2 Hagg. R. 136. The Brig Nestor. timony of the master is admitted, it is impossible to raise any presumption of a waiver from any of the circumstances; for he positively swears to facts, which establish, that credit was given to the ship, thus displacing, by an express understanding, all mere argumentative inferences. The decree of the District Court is, therefore, affirmed, with costs. CIRCUIT COURT OF THE UNITED STATES. Spring Circuit. MASSACHUSETTS, MAY TERM, 1831, AT BOSTON. BEFORE (Hon. JOSEPH STORY, Associate Justice of the Supreme Court. Hon. JOHN DAVIS, District Judge. BELL AND OTHERS v. CUNNINGHAM AND OTHERS. A court of equity will grant an injunction pro tanto to so much of a judgment as has been recovered by surprise of the defendant at a trial, when he had a good defence to it, but had no notice of the claim, even though the plaintiffs in the suit were in no default, and acted bona fide. Where foreigners are concerned, and have a good defence at law, unknown to their counsel, and the declaration is so amended at the trial as to let in a new claim, a court of equity will on due proof give them the benefit of such defence and grant an injunction pro tanto to the judgment at law. THIS was a bill in equity for an injunction to a judgment at law in this Court between the same parties, and for other relief. The case is reported in 5 Mason's Reports, 161; and, having been carried by writ of error to the Supreme Court of the United States, will be found still more fully reported in 3 Peters' Reports, 69. The facts now necessary to be stated to explain the grounds upon which this bill was brought, and upon which |