APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF LOUISIANA.
MR. JUSTICE BLATCHFORD delivered the opinion of the court.
This is a suit in Admiralty, in personam, brought in the District Court of the United States for the Eastern District of Louisiana, by Joseph C. Keyser against John W. Black. The substance of the libel is, that Keyser was the owner of the steam-tug C. C. Keyser; that, in October, 1877, the firm of Neafie & Levy, holding a mortgage on the tug, brought suit in a state court in Louisiana, against Keyser, and obtained a writ of sequestration therein, and caused the sheriff to seize the tug and hold it, until, on the application of Neafie & Levy, it was released on bond; that thereupon Black took possession of it, though he had no lawful right to do so, and used it in towing for hire, on the Mississippi River, injuring it and deteriorating its value; that the value of the use and services of the tug, as made use of by Black "for his own behoof and benefit," is $25,000; and that Black, by taking possession of
and using the tug, is liable to Keyser for that amount, "as in an implied contract." The libel prays for a decree that Black pay it to Keyser.
The answer sets up in defence the facts hereinafter recited as those found by the Circuit Court, and denies that these is any contract or obligation, implied or otherwise, on the part of Black to Keyser.
On a hearing, the District Court pronounced for the libellant, and, on the report of a commissioner, entered a decree that A.S. Baldwin and J. Levy & Co. "subrogated to the rights of the libellant on undivided halves," recover from Balck $506.86. Black appealed to the Circuit Court, as also did Baldwin and Levy & Co. The Circuit Court made a finding of facts, of which only the following are material in the view we take of the case:
1.In October, 1877, Neafie & Levy, of Philadelphia, were creditors of Keyser, the libellant, for $18,164, with interest, for which amount they had a mortgage upon the tug, the debt being for the price of the tug built by them for Keyser.
2. On October 11, 1877, they began suit in the Third District Court for the Parish of Orleans to collect that debt. They sequestered the tug in accordance with the law, and in due course recovered judgment against Keyser for the full amount of their debt, with interest, and issued execution against him. The tug was sold, under the execution, to them, the judgment recognizing their mortgage, for $16,075, the amount was credited on their debt, and there remained due to them by Keyser, on the judgment, after giving him credit for all that was made on the execution, $3387, with interest.
3. During the pendency of that suit, the tug not having been bonded by Keyser during the ten days allowed by law to him to bond her, Neafie & Levy afterwards bonded her and she was discharged, under the order of the court, into their possession, under the release bond furnished by them under and in accordance with the 279th and 280th Articles of the Code of Practice. Black, the defendant, was the surety of Neafie & Levy in the release bond, and was their agent to receive and hold possession of the tug, and, under the order of release, did receive and hold possession of her for them.
. The tug was held under the release bond, by Neafie & Levy, through the defendant, as their agent, from October 25th, 1877, to January 10th, 1878, on which date she was returned to the custody of the sheriff. She was held by him under the writ of sequestration in the suit of Neafie & Levy against Keyser, until May 6th, 1878, when she was sold under the execution, issued in that suit, to satisfy the judgment therein.
5. From October 25th, 1877, to December 27th, 1877, the tug was in actual use in the business of towing vessels, by Black, with the authority and under the direction of Neafie & Levy, to whom he accounted for all her earnings; and he acted throughout, in becoming surety, and ...