In April, 1858, Beers and others procured an attachment to issue against King Burns in an action commenced in this court against him, to recover a debt alleged to be due said Beers and others; and, by virtue thereof, the vessel in question in this suit was seized, and thereafter sold by virtue of an execution issued on a judgment obtained in that suit. This sale was made expressly subject to all liens on said vessel, *232including a lien of the marshal of the Southern District of Hew York, by virtue of his seizure thereof on process issued out of the District Court for such Southern District. Beers purchased at the sale by the sheriff.
I can perceive no reason why an action might not have been maintained by those having liens on the vessel, against Beers, by virtue of the liability assumed at the time of the sale. But no attempt has been made to charge him by reason of what occurred at such sale.
When the marshal seized the vessel in April, 1858, she was in the custody of the sheriff of Kings county by virtue of the levy of the attachment above mentioned. The marshal had the right to seize the vessel under those circumstances, and take her from the sheriff. But she was not removed, nor was the sheriff in any manner interfered with by the marshaland, indeed, all opportunity for conflict of jurisdiction was prevented by the sale of the vessel, subject to the marshal’s claim and seizure, by the sheriff, with the consent of the plaintiffs in the attachment, the owner of the vessel, and of all those having liens on the vessel then present.
I am of the opinion that the seizure by the marshal was regular, provided the court issuing the process under which it was made had jurisdiction.
That the District Court had admiralty jurisdiction cannot be denied, and that the question whether the vessel in question was liable to the lien set forth in the libel was one of admiralty jurisdiction is equally undeniable. The mode of proceeding adopted was in accordance with the practice of the court, and the vessel was within the jurisdictional limits of the court.
But it is said that it was not alleged in the libel that the materials, the price of which was sought to be charged on the vessel, “ could only be procured by creating a. lien on said vessel.”
I do not think that the omission of the said allegation, even if the rules of the court in force at the time of filing said libel required it to be set out on the libel, renders void the judgment, so that another court is bound to declare it a nullity in a collateral action. The judgment was valid until revoked.
If I am right in this, and the judgment is valid, the sale in pursuance of it cut off all liens.prior thereto; and as all of the *233claims, for which a recovery was had before a referee, accrued before such sale, except one of Kelsey for $149.73, the judgment must be reversed, and a new trial ordered, unless plaintiffs will stipulate to reduce it to such sum, in which event it is affirmed, with costs to appellant.
Sutherland, P. J., concurred.
Olerke, J., expressed no opinion.