The Dubuque. effect whatever. If one person may be entered as master for the purpose of registry, and another be master in fact, whether a citizen or not, and without having executed the required bond, then the law may be violated with impunity, and the sooner it is taken from the statute book the better. But it is said that Moir was incompetent in point of skill to navigate the vessel. That is a matter entirely between him and the owner, and between the owner and those who might have suffered on account of his incompetency. The only qualification required by the act is, that he shall be a citizen of the United States. He was such citizen. He was made and recognized as master by the registry, and however incompetent he may have been to navigate the vessel, the entire crew, including libelant himself, were, in contemplation of law, subject to his orders. It is further claimed that libelant actually discharged the duties of master. Concede that he did, still he did not possess the powers of master, such as the power to bind the vessel by his contracts, the power to inflict punishment for disobedience to orders, &c. These powers had been expressly conferred upon another, the person holding the papers as master, by law. See United States v. Taylor, 2 Sumn. 587. Libelant's assumption of such powers would have been unlawful usurpation, and punishable as such under section 1 of the Act of March 3, 1835 (4 Stat. at L. 775). He was also capable of revolt under section 2 of said act. See United States v. Winn, 3 Sumn. 209, 216, 217. And he could not be punished as master for inflicting cruel and unusual punishments, &c, under section 3 of said act. In the cases cited by respondent's counsel, holding that where the mate had succeeded to be master by the death of the master, he could not receive extra compen The Dubuque. In sation as master on a libel in rem, but could recover as mate, there was no master. The duties and powers of master devolved upon the mate, it is true, but it was ex officio merely, and because he was mate. He did not cease to be mate when he was acting as master. other words, he acted in a double capacity, in one of which, that of mate, he had a lien, and in the other, that of master, he had not. These cases decide simply this, that so far as libelant acted as mate, he had a lien, but so far as his claim was increased by his service as master, he had no lien. As applied to the present case, these cases would sustain the following proposition: that so far as libelant acted as pilot and sailing master, he has a lien for his wages, but if any portion of his claim is for services as master, to that extent he has no lien. But inasmuch as the vessel had a master, the duties of master could not have devolved upon him, as they did upon the mates in the cases cited; and therefore the cases cited have no application to the present case. In the case of L'Arena v. The Exchange, Bee's Adm. 198, cited by respondent's counsel, the ship had a real master, who of his own motion, acting in his capacity as master, hired a man at Havana to lend his name, to be used as nominal master to clear the vessel at that place, and to proceed to Charleston and back to Havana. It was there held that the person so hired never was master, and that therefore he had a lien for his wages. The real master had no authority thus to divest himself of his office and confer it upon another. This could be done by the owners only. Neither are we advised, and it is not material, what was the effect of the transaction at Havana, under the laws there in force. The effect of the registry under our registry laws is alone under consideration in this case. I hold, therefore, that the person in whose name the The Dubuque. vessel is registered as master, is master for every legal intendment and purpose. That where there is a master de jure by virtue of the registry, there can be no master de facto in legal contemplation. That the law recognizes in this respect but one supreme authority, and therefore, if another person than the registered master is employed by the owners to navigate and even discipline the vessel, he does not thereby become master either de facto or de jure. That the relations between master and crew, as they exist by the maritime law and the acts of Congress, become fixed by the registry, and cannot be changed by any such interference. There is, however, another complete answer to the objection of respondent, that libelant was master in fact. He was an alien, and was therefore prohibited by the registry laws from being master de jure. It would be against public policy, and aiding in the perpetration of the grossest of frauds upon the law, to hold that he could be master de facto. As a question of law, therefore, the defense set up that libelant was master in fact, is not well founded. I should be obliged to hold also, that this defense is not sustained as a question of fact. This is set up by the answer as matter of substantive defense, and must be maintained by respondent by a preponderance of proof. Hutchings, the owner, swears that he employed libelant as master, but that being an alien he could not be registered as master, and therefore it was arranged between him and libelant that the registry should be in the name of Moir (who was in fact engineer of the vessel), as mere matter of form. Libelant testifies that he was employed expressly as pilot and sailing master, and that not a word was said about his taking or not taking the registry in his name The Dubuque. as master, and that there was no arrangement or under- The proof shows that in the discharge of his duties Libelant and Hutchings stand on an equal footing as to interest and credibility, and neither is corroborated; and partly in consideration of the apparent fact that Hutchings must have sworn falsely when he swore that Moir was master of his vessel for the purposes of registry, or that he has sworn falsely in this suit, I hold that the evidence preponderates in favor of libelant's position, and that this defense is not made out in point of fact. Libelant therefore has a lien upon the vessel for his wages, and is entitled to recover in this suit the balance due him, unless the remaining defenses set up, or some one of them, is made out. The next defense set up is that soon after libelant's term of service had closed, and on the 8th day of December, 1865, he had a settlement with the owner, and received the owner's note in full for balance due him for wages, and for another small claim he had against the Owner, and in full for his claims against the vessel. The rule of law upon this point is that the lien is not waived by simply taking a note, unless it is distinctly so understood. See The St. Lawrence, 1 Black, 522, 531-2; Carter v. Townsend, 1 Cliff. 1, 5; Sutton 2. The Albatross, 2 Wall. Jr. 327, 333; The Fashion, 1 Newb. 49. The proof shows that a settlement was had and a note taken for balance due him at the time stated in the answer: but there is no proof whatever that it was understood that libelant's lien upon the vessel was thereby waived. This defense is therefore unsupported. The Dubuque. I shall, however, notice this matter again in connection with the remaining branches of the case. The next and remaining defense set up is, that on the 4th day of October, 1866, the vessel was duly mortgaged to claimant for a valuable consideration, and without notice of libelant's claim, and claiming that libelant's claim is stale, and ought not to be enforced as against the said mortgage. The proofs fully sustain the allegations of the answer as to the giving of the mortgage, and want of notice of libelant's claim. As to the consideration, the proof shows that the mortgage was given by John Hutchings, sole owner of the vessel, to secure a previous indebtedness from him to the mortgagees of eleven thousand four hundred and sixty-two dollars and fifty-two cents, of which there remained due and unpaid at the time of filing the answer, the sum of nine thousand two hundred and fifty dollars. That the indebtedness of Hutchings grew out of indorsements of paper held by the bank. That the particular notes representing the amount for which the mortgage was given, were renewals of former notes, upon which Hutchings had in like manner been indorser. That these notes for which the mortgage was given did not fall due until October 26, 1866, and, therefore, Hutchings' liability had not become fixed at the time (October 4, 1866) the mortgage was given; but it does appear that his liability did afterwards become permanently fixed upon those notes. On this state of facts the learned counsel for libelant contends: 1. That there was no consideration for the mortgage at the time it was given, as there was then no liability on the part of Hutchings to pay the debt. 2. That even if his contingent liability, having grown, as it did, into a fixed liability, constituted a sufficient consideration as between the parties, it is not a valuable consideration in the eye of the law so as to enable |