
    IN THE MATTER OF STEAMBOAT “GLOBE,” LANGSTAFF & HULME vs. C. W. HERBERT.
    The claim of a clerk upon a boat for wages, is not a statutory lien upon the boat j it is only a personal demand against the owners.
    STATEMENT OP THE CASE.
    This steamboat, was sold by order of court, and all the lien claims were paid u»8j leaving s nett surplus for distribution to the legal and proper claimants. Langstaff & Hulme, Philip' Rock and Charles W. Herbert, severally filed claims against said surplus."
    
      Langstaff & Hulme claimed all the surplus by virtue of a deed of tru t, dated 18 h October, 1849, for $7,4U0 due from Ward, (the owner of the whole bo d, exce; t an in'erest of $500 belonging to Rock,) to them for money advanced on the building o-f the boat, no part of ■which amount secured thereby, has been paid to them.
    Hei bert claimed by virtue of a promissory note as follows .
    <!On demand steamboat Globe and owner promise to pay Charles W. Herbeiione hundred and twenty-iour dollars, for value received of him, this the 20th day of October, A. D. 18.9
    I). WARD, Master.”
    " And moved the court, out of the surplus, after payment of the statutory liens, to pay this claim, which motion was granted, after hearing the f .(lowing evidence :
    That the no'e was in the handwriting of Ward, the master; tl at Herbert had been clerk from June, 1849 at $75 per month; that Ward had admitted tie owed Herbert that amount as clerk’s wages; and that after satisfying statutory liens, the surplus was enough to pay Herberts claim.
    Upon these facts Langstiff & Hulme asked the court to declare the law to be that Herbert, was not entitled to any part of said surplus, and lo award the whole of said surplus to them, as let a ly entitled thereto.
    This instruc ion the court refused, and the said Langstaff & Hu'me moved for a new trial because the ccurt refused proper and cimpebni irstinctions, and because they erred in allowing Hei belt’s claim on the facts pioved. Tho motion was overruled and an appeal taken.
    Ckockett & Kasson, for appellant,
    Theie was error in permitting the clerk to pursue a claim against the proceeds of (he boat. He has no lien by. express statute (but to the contra'y even) upon the boa'; a “fort.'oiib upon its proceeds in conversion. The claim of Langstaff & Holme ranked in the 2nd order. Revised Stat., ‘-Boats and Vest els,” sec. 1 ; Ward's note to Herbert did not bind the boat at all, § 3(1. Il was simply (he master’s private prom ise to pay.
    Langstaff & Hulme alone, of the parties before the court, had a debt which either by statute or by act of the parties was mane a lien on the boat, and il, was in both substance and iorm a debl of b'ghir rank iban ei her of the oilier c aims
    The clerk tii-d to make a personal debt uf the rna-tei good against the proceeds of property which once belonged to Ihe master, and o, cou se cannot do it again-t claims to wt ich tl.is very propeity was lawfully pledged. There is no warrant in the statu e for any such pro-feedings.
   Napton, J.,

delivered the opinion of the court.

After the payment of the liens upon this boat from the proceeds of its sale, there was still a surplus, and the question in this case was, whether the claim of Herbert, the clerk of the boat, should be paid out of the surplus.

The statute requires the surplus to be distributed among the creditors of the boat.

Tiie clerk’s wages are not a lien upon the boat, under our act; on the Contrary they are expressly excepted in the enumeration of liens. Rev. Code, 45, p. 181, sec. 2.

This claim can then be only a personal demand against the-owners.

We, therefore, are of opinion that the claim should not have been allowed. Judgment reversed and came remanded.  