The claim of Hubbard & Heaton, for the sum advanced by them to Shaw, is admitted, to be just and equitable, and that when made they had no knowledge of or reason to suspect any fraud in the importation by Shaw. It was paid to Shaw after the employment of Hubbard & Heaton as auctioneers, and after the books were placed in their possession for sale, and before their seizure for the fraud in -their importation. There would seem to be no doubt that Hubbard & Heaton have an equitable lien on the fund in the registry, and that the order for its payment should be made. The case of Caldwell v. U. S., reported in 8 How. [49 U. S.] 366, decides that a bona fide claim upon property before seizure, or before the government has made its election to proceed for a forfeiture, or sue for its value, may be paid out of the proceeds. Hubbard & Heaton’s claim is within the principle decided by the supreme court in the case referred to.

But it is insisted by the counsel of the United States, that under an act of congress passed in 1867 [14 Stat. 546], that- the entire proceeds must be paid into the treasury, including all charges and expenses incident to the proceeding. This provision applies only to the legal charges and expenses incident to the case, and does not extend to *1036a private claim on tlie proceeds, based on a legal lien. That Hubbard & Heaton’s claim is such a lien, there can be no doubt. And the fund from which it ought to be paid be-, ing within the jurisdiction of the court, the order for its payment may be entered.There would seem to be no necessity for requiring them to be at the trouble and incur the expense of an application to the secretary of the treasury for payment