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afford no reasonable security to the merchant in making advances or furnishing the necessary supplies; as, for aught he could know, the existing claims against her might exceed her value. It is apparent that, to give to this maritime lien the efficacy claimed, would greatly embarrass and obstruct the commerce and navigation of the country. It would deprive the master, in distant ports, of the means of meeting the exigencies of the service, because the vessel would furnish no adequate security for the necessary supplies or repairs.

The question has been the subject of examination by the learned District Judge for the Southern District of New York. In a case which came before him in 1841, he held that the true meaning of a maritime lien was, that it rendered the property liable to the claim without a previous judgment, or decree of the Court, sequestering or condemning it, or establishing the demand, as at common law, and that the action in rem carried it into effect; that the appropriation of the property to that end became absolute and exclusive on suit brought, unless superseded by some pledge or lien of paramount order; that it resulted from the nature of the right and the proceedings to enforce it, that the first action by which the property was seized was entitled to hold it as against all other claims of no higher character; that the lien, so termed, was, in reality, only a privilege to arrest the vessel for the demand, which, of itself, constituted no incumbrance on the vessel, and became such only by virtue of an actual attachment of the same.*

The case referred to is that of The Triumph, in the District Court for the Southern District of New York, July 27th, 1841. The vessel having been sold under a decree and the proceeds paid into Court, a question arose as to the proper distribution of the proceeds, they being insufficient to satisfy all the demands preferred against them. Various libels had been filed against the vessel, and thirteen attachments had been issued and served upon her or her proceeds, and petitions were also brought in by other parties setting up claims to the fund in Court. Suits were brought by different seamen on the same voyage, by seamen on different voyages, by the assignees of wages of seamen, and by

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I concur fully in this view, and, therefore, hold, in this case, that the priority of time in the furnishing of the sup

material-men for labor, supplies, materials, &c. The actions by the material-men were not brought in the order of time in which their debts accrued.

After passing upon the rights of the respective suitors to a remedy in the Court, and in the form of procedure adopted by them, BETTS, District Judge, proceeded as follows:

"The remaining inquiry relates to the order in which the different demands are to be satisfied when of like rank. Are they to be paid pro rata, or does the prosecuting creditor who first obtains service of process upon the property, acquire a right to the first satisfaction? And, if any of the demands stand in a common rank, are the costs attending their prosecution entitled to preference in payment?

"An action in rem stands on a distinct footing from a suit at common law or in Chancery. The thing arrested is in sequestration to satisfy the specific demand thus fastened upon it. Whether the res, in kind, remains in Court, in the custody of the law, to the termination of the suit, or is delivered up on stipulation, itself or its substitute remains subject to the particular claim, and is detained on that alone. The moment the attaching demand is satisfied, the thing attached is surrendered by the Court, and nothing short of another attaching process will justify its longer detention. If other suits are instituted after the property is delivered on bail, (that bail, according to our practice, responding only to the particular suit,) most manifestly the after-demands could not be attached to the fund so raised. And, if the property is not yet delivered out of Court, subsequent arrests of it, while there in custody, would no more inure to place the subsequent actions on an equality with the one holding it under seizure, than they would when it stood released on bond or stipulation.

"The meaning and efficacy of a maritime lien is, that it renders the property. liable to the claim without a previous judgment or decree of the Court, sequestering or condemning it, or establishing the demand, as at common law, and the action in rem carries it into effect. (Ingraham v. Phillips, 1 Day, 117; Barber v. Minturn, Id. 136.) Thus, the appropriation of the res to that end becomes absolute and exclusive on suit brought, unless superseded by some pledge or lien of paramount order; and it accordingly results, from the nature of the right and the proceedings to enforce it, that the first action which seizes the property is entitled to hold it, as against all other claims of no higher character. (Clerke's Praxis, tit. 44, Hill's Adm. Pr., 89; The People v. Judges of New York, 1 Wend. 39.)

"The lien, so termed, is, in reality, only a privilege to arrest the vessel for the debt, which, of itself, constitutes no incumbrance on the vessel, and becomes such only by virtue of an actual attachment. (Hall's Adm. Pr., tit. 44; Abbott on Shipping, part 2, ch. 3, 142; Kent's Comm., 169, 170; The People v. Judges

of New York, 1 Wend. 39.),

The United States v. Reed.

plies and materials by the libellant gave him no paramount lien on the vessel over the liens of the creditors in the Ohio suits.

The error of the learned Judge below consisted, I think, in holding: 1. That the proceedings and judgments in the Ohio Courts were void on account of the absence of notice to the party interested; and, 2. That the lien of the libellant for the supplies and materials furnished by him to the vessel was paramount and overreached the judgments and sale under the laws of Ohio.

The decree of the District Court must, therefore, be reversed, and a decree be entered dismissing the libel, with

costs.

THE UNITED STATES vs. ENOCH REED.

The Judiciary Act of September 24th, 1789, (1 U. S. Stat. at Large, 88, § 29,) the Act of May 13th, 1800, (2 Id. 82,) and the Act of July 20th, 1840, (5 Id. 394,) adopt the State regulations respecting the procurement of grand and petit jurors to serve in the Federal Courts, and apply to those Courts the State regulations respecting the qualifications and the exemptions of grand and petit jurors.

A challenge to a grand juror for favor, on the ground that he is the prosecutor or complainant upon a charge, or that he is a witness on the part of the prosecution, and has been subpoenaed or been bound in a recognizance as such, goes to the qualifications of the juror.

A challenge to the array of the grand jury in a given case, on the ground that they have been selected, summoned and returned by a person unfit to summon an indifferent jury in the case, touches the qualifications of the panel. Therefore, State regulations respecting such challenges are applicable in the Federal Courts.

"Applying these principles to the case before the Court, the prosecuting creditors, (except seamen suing for wages,) are to be satisfied in the order in which the warrants of arrest were served upon the property, whether the vessel in kind, or her proceeds in Court. Each action, with its appropriate costs, comes upon the fund according to the period of its commencement."

The United States v. Reed.

But peremptory challenges in criminal cases in the Federal Courts are regulated by the common law.

The absence of a venire for the summoning of a grand jury, in a case where it is required, is a ground of challenge to the array.

Challenges to the array of grand jurors are abolished by the laws of New York, and are consequently also abolished in the Federal Courts in New York. But still, where there has been any improper conduct on the part of the officers employed in designating, summoning and returning the grand jury, an accused person who is prejudiced thereby has his remedy by motion to the Court for

relief.

All objections, however, to the proceedings in the selection and summoning of grand jurors, over and beyond the right of challenge, are presented to the Court for the exercise of its sound discretion, and, although there may be technical irregularities, it will not interpose, unless satisfied that the accused party is prejudiced by them.

Under the Act of August 8th, 1846, (9 U. S. Stat. at Large, 73, § 3,) providing that no grand jury shall be summoned in the Federal Courts except upon an order for a venire, to be made by a Judge, a venire should be issued by the clerk of the Court, in pursuance of the order.

A verbal order given by a Judge to the clerk in such case is sufficient, though no order be filed or entered of record.

The omission to issue a venire in such case, if a ground of challenge to the array, and if taken advantage of at the proper time, is fatal to the panel.

But, if not a ground of challenge, or if the time for making the challenge be passed, it is only a ground for a motion to set aside the panel for cause. The mere omission, however, to issue the venire, is not such cause, where the application is addressed to the sound discretion of the Court.

By the law of New York, (2 R. S. 724, §§ 27, 28,) persons "held to answer," that is, arrested and held to bail to appear at the term of the Court at which the grand jury attends, to answer such complaints as may be presented against them, are the only persons who can challenge either the array of grand jurors, or the individual grand jurors for favor.

Where a party appeals to the sound discretion of the Court to set aside an indictment for irregularities in drawing or summoning the grand jury, he must implicate the good faith of the officers concerned in discharging those duties. Those officers, in New York, are bound to use the State boxes and the State ballots in drawing grand jurors, as the same are furnished to them by the State officers, and have no right to change or alter either.

It is the uniform practice, in the Federal and State Courts, for the clerk and assistant of the District Attorney to attend the grand jury and assist in investigating the accusations presented before them. That practice must be regarded as settled; but any abuse or improper conduct on the part of any person admitted to the grand jury, will be investigated by the Court.

The Court has no power to inquire into the mode in which the examination of witnesses was conducted before the grand jury, for the purpose of invalidating an indictment.

The United States v. Reed.

It will inquire, however, into the manner of swearing the witnesses, when they are sworn in open Court, and into the competency of the evidence, whether oral or documentary, and into the manner of authenticating the latter species of evidence.

Where witnesses before a grand jury are testifying in regard to facts about which they have previously made ex parte affidavits, it is not improper for them to consult those affidavits, to refresh their recollection; nor is there any objection to their swearing that certain facts, of which. they have previously made statements on paper, are true.

Evidence before a grand jury must be competent legal evidence, such as is legitimate and proper before a petit jury.

On a criminal charge against several persons, for a participation in the rescue of a person from the hands of a public officer who held him in custody, the witnesses who were to testify before the grand jury were sworn in open Court in the following manner: The clerk of the Court was furnished with a general description of the persons accused-The United States v. M. S. and others-and then administered to the witnesses this oath: "You, and each of you, do severally solemnly swear, that the evidence you shall give to the grand inquest touching charges against M. S., and others, concerning which you shall be interrogated, shall be the truth, the whole truth, and nothing but the truth. So help you God." Upon the testimony given under this oath, twenty-four bills of indictment were found against twenty-four different persons, one against each. No indictment was found against "M. S. and others," nor was any indictment found against any two persons jointly. On a motion by E. R., the defendant in one of the indictments, to quash it, on the ground that the oath was void as to him: Held, that the oath was free from objection.

A general oath to give evidence touching criminal' charges to be laid before the grand jury, without reference to any particular person, is unobjectionable.

If the oath embraces one or more persons by name, whose cases are about to be laid before the grand jury, and in respect to which the oath is administered, and nothing more, evidence cannot be given under it in support of any accusation against others.

The Court has no power to revise the judgment of a grand jury upon the evidence, for the purpose of determining whether or not the finding was founded upon sufficient proof, or whether there was a deficiency in respect to any part of the complaint.

When, under § 6 of the Act of September 18th, 1850, (9 U. S. Stat. at Large, 463,) known as the Fugitive Slave Act, a warrant is issued by competent authority, that is sufficient to justify the arrest and detention of the fugitive until he is discharged by due course of law, and any person concerned in rescuing or attempting to rescue such fugitive out of the custody of the law, subjects himself to the penalties of the Act.

(Before NELSON and HALL, JJ., Northern District of New York, October, 1852.)