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against the vessel to recover wages. Either the extension of time for payment of the debt, or the waiver by the holder of the note of the right to sue the indorser, and in such suit to attach the vessel, constituted a sufficient consideration for this purpose.

In respect to the question what delay to enforce a maritime lien will warrant its being postponed to subsequent liens acquired without notice, the same rule applies to claims for wages, as to claims for repairs and supplies.

The general rule is, that a delay to enforce a maritime lien, after a reasonable opportunity to do so, is deemed a waiver of the lien as against subsequent purchasers or incumbrancers in good faith and without notice, unless such delay is satisfactorily explained.

This was a libel in rem for wages of libelant as pilot and sailing-master of the propeller Dubuque, from April 5 to December 5, 1865, at one hundred and twenty-five dollars per month. The libelant claimed a

diction over the vessel after she was once bonded. To this motion the libelants objected that Ward, being a mortgagee merely, and not the owner, or an agent, consignee, or bailee for the owner, within Rule 26 of the Supreme Court Rules in Admiralty, had no standing in court to make such a motion.

LONGYEAR, J., after observing that Rule 26 has been considerably altered and enlarged, if not entirely superseded by the act of March 3, 1847, 9 Stat. at L. 181,-Deld, that the rule and the act relate exclusively to the conditions to be complied with to entitle a claimant to avoid an arrest of the property or to obtain its discharge after it shall have been arrested, and not to conditions necessary to entitle a party to intervene pendente lite, to participate in the distribution of proceeds, or to protect any interest he may have in the subject matter of the litigation. The right of a party to intervene for these purposes has been recognized both in England and in this country, as extending to judgment creditors who have acquired a lien, and also to attaching creditors. See 1 Conkl. Adm.. 55,66–70, citing The Flora, 1 Hagg. 298, 303; The Mary Ann, Ware, 204. This being so, there can be no good reason why a mortgagee should not be admitted to intervene for protection of his own interest, and contest a forfeiture so far as his right or interest would be prejudiced by the decree.

The motion was therefore heard; and, upon the merits, was granted.

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balance due and unpaid of seven hundred and fortynine dollars and fifty-three cents. The libel was filed and the vessel seized, February 13, 1869.

The answer of the Second National Bank, claimant, intervening for its interests in the proceeds of the vessel, as mortgagee, denied knowledge, &c., of the alleged services of libelant, and denied that there was any thing due him, or that any thing which might be due was a lien upon the propeller or her proceeds.

The answer further alleged on information and belief:

That libelant was in fact master of the propeller, and therefore could have no lien for his wages.

That soon after libelant left the vessel, and on December 8, 1865, he had a settlement with the owner, and received the owner's note in full for the balance due him for wages, and for another small claim he held against the owner, and in full for his claim against the vessel, if any existed.

That on October 4, 1866, John Hutchings, sole owner of said vessel, mortgaged the same to claimant for eleven thousand four hundred and sixty-two dollars and fifty-two cents; that the mortgage was duly recorded on October 10, 1866, and there was due and unpaid upon the mortgage at the time of filing the answer the sum of nine thousand two hundred and fifty dollars; that this mortgage was given for a valuable consideration, and without notice of libelant's claim; and that the libelant's claim is stale, and ought not to be enforced as against the mortgage.

Moore & Griffin, for the libelant.

Newberry, Pond, & Brown, for the intervenor.

LONGYEAR, J.-The allegations of the libel as to the fact and period of service of libelant, and as to the rate

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of wages, are fully sustained by the proofs, and are not contested. The questions which are contested, and upon which the decision of the case must turn, will be taken up and disposed of in the order in which they are raised by the answer.

The first question presented is that raised by the allegation in the answer, that libelant was in fact master of the propeller, and, therefore, could have no lien for his wages.

The libel alleges that one George Moir was master, and the proof shows that the propeller was enrolled and licensed in his name as such.

Moir, then, was the registered master, or master de jure of the vessel, and he remained such during the entire term of service for which wages are claimed by libelant. But it is contended on behalf of respondent that libelant was in fact employed, and that he actually served as master, and, therefore, was master de facto, and that the vessel was registered in the name of Moir as master as mere matter of form, for the reason that libelant was then an alien, and could not be registered as master under the navigation laws. See Act of December 31, 1792, 1 Stat. at L. 289, § 4.

There was some evidence adduced tending to prove the above state of facts, which will be considered hereafter.

It is a well settled rule of the maritime law that the master has no lien upon the vessel for his wages. He must look to the personal responsibility of the owner alone. See 2 Pars. Mar. L. 582; 2 Pars. on Shipp. & Adm. 182, and the numerous cases there cited.

It is essential, therefore, to ascertain and determine in the outset, who was master. I shall consider this question, first, as one of law, and second, as one of fact.

In the absence of the registry laws, or in a case in which the registry laws have not been resorted to,

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there can be no doubt he would be master to whom the owner actually entrusted the navigation and discipline of the vessel. But how is it when, as in this case, the registry laws have been resorted to ?

The registry laws have for their object, among other things, the building up and fostering a commerce purely American. With this object in view, great importance is manifestly attached, and justly so, to the provision in regard to the designation of the master, and his political status. The owner is required to make oath who is master, and that he is a citizen of the United States. And this last requirement is deemed of so much importance that it is further required that if the master is within the district at the time of application for registry, he shall himself make oath to his citizenship. And in case the facts so required to be sworn to are not as stated, the severe penalty is imposed, in case of the owner thus swearing falsely, of a forfeiture of the vessel, together with her tackle, furniture, and apparel; and in case of the master, of the sum of one thousand dollars.

The master is also required to join with the owner in a certain bond before registry can be obtained. In case of a change of such master, such change must be reported, and a corresponding change in the registry made, under the penalty, in case of neglect, of the registry previously made being made void, and of the payment of the sum of one hundred dollars by such

new master.

In view of the importance thus attached by the law to the office of master, the registry certainly ought not to be treated lightly, as evidence of who is master. I think far the safer and more satisfactory rule is to hold that in case of resort to the registry laws, all the incidents of those laws attach, and that the relations required by the law to exist between the owner and the master, and between the master and the vessel, and be

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tween the master and the crew become fixed by the registry, and any other arrangements the owner may make for the actual discharge of the duties of master are entirely subject to the relations so fixed, until they are changed in the manner prescribed by the registry laws; and that so long as the person in whose name, as master, the vessel is registered, continues to be master by the registry, he is such to all intents and purposes in the eye of the law.

In the case of Draper v. Commercial Insurance Company, 21 N. Y. 378, cited by respondent's counsel, the question was as to the seaworthiness of the vessel, as affecting the contract of insurance. It was there held that, as affecting that question, it made no difference if the person holding the papers as master was entirely incompetent to sail and discipline the vessel, provided the navigation and discipline of the vessel were intrusted in fact to a competent sailing-master; and that, although the registry is prima facie evidence as to who is master, yet it is not conclusive, as affecting the question of seaworthiness. Anything decided in the case beyond this is mere dictum, and not authority.

But I regard the doctrine upon which the decision is based as unsound, and if it was of binding authority upon this court (which of course it is not), I should not be inclined to extend its application one iota beyond the exact point decided. I consider the argument of the dissenting opinion of Judge COMSTOCK in that case, even as to the point decided, sound, and, as it seems to me, conclusive. The dissenting opinion holds that the nature of the service admits of but one supreme authority, and the laws recognize but one; and that that authority is vested alone in him in whose name the vessel is registered as master, in virtue of his office; and in that opinion I fully concur.

Any other position opens the door wide to frauds upon the law, and at once renders the law of no force or