Thomas et al. v. Osborn.
her to sail. The owners have since received her, and now hold her in their possession, increased in value by those repairs, which enabled her to come home, and which were made by the money of Loring & Co. And they have also received the freights which those repairs enabled her afterwards to earn under the command of Weston. Justice, as well as the principles of the law, would seem to require that those who have reaped the profit of the advances should repay the party to whom they are indebted for their gains.
It remains to inquire whether the lien has been waived, by the delay in prosecuting it, or the debt been satisfied in any other way.
I shall dispose of those questions very briefly. For I am sensible that the great importance and delicacy of the points hereinbefore discussed, have compelled me to extend this discussion beyond the limits of an ordinary opinion in this court.
In relation to the alleged waiver by the delay, the mere statement of the evidence is an answer to the objection, and the evidence is this: The repairs were made and the supplies furnished in the spring of 1852. The barque returned to Valparaiso in the November following, when Weston immediately assumed the command. He was ordered by the owners to procure, if he could, a cargo of guano, and to bring the vessel to an Atlantic port. He did so; and he arrived in Baltimore in the June following, and the vessel was arrested on this libel a few days after her arrival.
The barque still belongs to the same owners. When Weston arrived at Valparaiso to take the command, he had no money, and was obliged to raise what he needed by a bill on his owners. At that time, Loring & Co. had no reason to suppose that the owners would refuse to pay this claim; and if they had then arrested the vessel, it would have broken up the voyage upon which she was destined, and subjected the owners to heavy losses by her detention. And it certainly ought not to be a matter of complaint on their part, that, under such circumstances, he did not arrest her, and took no measures to enforce his claim, until he found that payment was refused; and it is unnecessary to cite cases to prove that the omission to arrest her at Valparaiso under such circumstances cannot be regarded as a waiver of their lien, upon any principle of law. There was no unreasonable delay in notifying the owners of the claim, nor in filing the libel when they disputed it. The Laura in the intervening time remained in the possession and employment of the owners; no third party had become interested, and the owners were greatly benefited
