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demands of the creditor, was not good. Wood v. Hitchcock, 20 Wend. 47. TRESPASS FOR MESNE PROFITS. (Evidence in.) In trespass for mesne profits, evidence to show that the defendant had made lasting and valuable improvements, is not admissible under a plea of not guilty. Nor is there any appropriate plea, that will admit such proof. If, in consequence of improvements made by the tenant, the profits have increased, the jury in making up the verdict, may pretermit the increase, and find what the rents would have amounted to without them. Myers and another v. Sanders's heirs, 8 Dana, 65. TROVER. (By landlord.) Though a landlord cannot maintain trespass for cutting timber upon land in possession of his tenant, for a conversion of it after it is cut, he may maintain trover ; for the tenant's interest in the timber ceases upon its severance from the freehold, and the right of property in the landlord draws after it a constructive possession. Railroad Co. v. Kidd, 7 Dana, 250. WENDORS AND PURCHASERS. (False representations.) To render a sale void by reason of false representations, there must be proof not only that they were untrue, but that they were made by the vendor with the design to deceive, and that the other party was thereby deceived and injured ; and such design must be proved by other evidence than the mere fact, that the representations were not true. McDonald v. Trafton, 3 Shepley, 225. 2. (Stoppage in transitu.) Where goods are sold, and delivered on board a ship of the vendee, and are stopped in their transit by the vendor, the vendee is entitled to receive payment of the freight and charges on the goods reclaimed, and has a lien upon them therefor. Newhall v. Wargus, 3 Shepley, 314. 3. (Stoppage in transitu.) Where goods are stopped in their transit by the vendor, the vendee cannot recover back a partial payment made therefor, Ib. 4. (Same. Lien.) This lien on the goods stopped is not divested, because the possession of them has been obtained by process of law. Ib.
5. (Bill overdrawn.) If the vendor of goods sold draw a bill for the amount on the vendee, and by mistake extend the time of payment therein beyond the time agreed by the parties, and the vendee fraudulently seize upon the mistake, and accept the bill, to entrap the other party for his own advantage and to the other's injury; the vendor may treat the bill as void, and maintain an action for the goods sold. Hervey v. Harvey, 3 Shepley, 357.
In the District Court of the United States, for the district of Maine, March 20, 1840.
THE HULL of A NEW BRIG.
By the general maritime law, material men, who perform labor or furnish materials for building or repairing a vessel, have in addition to the liability of the owner, a lien on the vessel for their security; but this principle of the maritime law has never been adopted by the common law.
By the maritime law of the United States, material men have a lien on the vessel for supplies furnished a foreign vessel, but not for supplies for a domestic vessel; and for the purposes of the lien every vessel is considered foreign when in a port of a state to which she does not belong.
The statute of Maine, of February 19, 1836, ch. 626, giving to “all shipcarpenters, caulkers, blacksmiths and joiners, and other persons who perform labor, or furnish materials for or on account of any vessel building or standing on the stocks by virtue of a written or parol agreement,” a lien on the vessel, does not include the case of a laborer, hired generally, and employed in various work, so as to give him a lien on the vessel for his wages for such part of the time as he may have been employed in work for the vessel.
This was a libel against the hull of a new brig built during the last season by David Spear. It was alleged in the libel, that Spear commenced building the vessel in April last, and that the hull was finished and launched on the 6th of February; that the libellant was employed by Spear in building her; and that there remains due to him for his services the balance stated in the schedule annexed to the libel, amounting to $116,64, which he has demanded, and which remains now unpaid, for which he claimed a lien on the vessel for his security, and praying that the vessel may be decreed subject to the lien and sold for the payment of what is due. Spear was duly served with process, but did not appear; but Mr. Purinton intervening for his own interest, entered an appearance and filed a claim as owner, and put in an answer in the nature of a plea to the jurisdiction, alleging that at the time when the labor is said to have been performed, the vessel was and ever since has been wholly owned by citizens of this state, viz. by said Purinton, the respondent, that she is a domestic vessel, and concluding with a prayer that the libel may be dismissed.—Afterwards, upon a suggestion from the court that the objection to the jurisdiction could not be sustained, he put in an answer to the merits, alleging that the vessel was built by Spear for him, denying all knowledge of the libellant's having been employed or having rendered any service in building the vessel, and putting him to the proof of his claim. Evidence of the declaration of Spear was offered by the libellant, tending to prove that by the terms of the contract he was especially engaged for work upon this vessel, but the evidence was ruled to be inadmissible. The case was argued by Fow for the libellant and by C. S. Daveis for the respondent. WARE, District Judge. The plea to the jurisdiction has been very properly abandoned at the argument. The objection was presented in precisely the same form in the case of Peyroux v. Howard ; ' that is, that all the parties were citizens of the same state, and overruled both in the district and supreme court. The same question was also raised and decided in the same way in the case of Davis v. a New Brig.” In cases of admiralty and maritime jurisdiction the competency of the court does not depend on the citizenship of the parties. The jurisdiction is founded on the subject matter, and attaches whoever may be parties and wherever they may reside. And that contracts of material men, for materials found and labor performed in building and repairing vessels, are matters of admiralty and maritime jurisdiction, has been too often decided to admit of controversy at this day. Over these contracts the admiralty exercises a general jurisdiction. It will in all cases give a remedy in personam ; and whenever the law gives a lien or privilege against the vessel it will enforce it by process in rem." In every proceeding in rem, therefore, founded on such contracts, the question is not whether the court can take cognizance of the subject matter, but simply whether in the particular case the creditor has a right to look to the vessel itself for his security, or is confined to his personal remedy against the debtor. By the general maritime law, material men, under which terms in the language of the admiralty are included all persons who supply materials or labor in building or repairing vessels, or furnish supplies which are necessary for their employment as provisions for the crew, have, in addition to the personal liability of the debtor, a lien on the vessel for their security.” It is commonly said that this principle was borrowed by the maritime from the civil law.” But it seems more probable that it originated in the maritime usages of the middle ages, where we find the origin of all the general principles of the law of the sea. The Roman law did, it is true, allow to those who loaned money for the building, repairing or the supplying of vessels, a privilege against the vessel." But in that law a privilege did not amount to an hypothecation.” The first only gave a jus praelationis, a right of prior payment out of the thing, before it could be taken by unprivileged creditors. It was like the priority laws of the United States, and did not attach as a lien on the thing. And the privilege of material men for supplies furnished for a vessel was also postponed to that of the fisc. But hypothecation gives a jus in re, a species of proprietary interest in the thing itself. And in the maritime law every privilege imports a tacit hypothecation." If therefore it was adopted from the Roman law, it was adopted with an important modification, giving to the privileged the rights of an hypothecary creditor, and raising the privilege to an hypothecation. But this principle of the maritime law is not acknowledged by the common law and has never been received by the commercial jurisprudence of England.” It has however been partially adopted in the maritime law of the United States. Our law allows the lien when the supplies are furnished to a foreign vessel, and for the purposes of the lien, a vessel is considered as a foreign vessel when she is in a port out of the state to which she belongs or where her owners reside. But when supplies are furnished to a vessel in the state where she belongs and is owned, no lien is created by the maritime law of the United States. If however it is allowed by the local laws of the state, it may be enforced by process in rem in the admiralty. In the present case the labor was performed on a new vessel owned in the place where she was built, and being a domestic vessel, whether the creditor has a lien upon her for the value of his services, depends entirely on the law of the state. The lien is claimed under an act of the legislature of Maine, of February 19, 1834, ch. 626, § 1. This act provides “that from and after the passing of this act, all ship carpenters, caulkers, blacksmiths, and joiners, or other persons, who shall perform labor or furnish materials for and on account of any vessel building or standing on the stocks, by virtue of any written or parol agreement, shall have a lien on such vessel for his or their wages until four days after said vessel is launched, and may secure the same by an attachment on said vessel; which attachment shall have prece
* The General Smith, 4 Wheaton, 438; the Aurora, 1 Wheat. 104; the Jerusalem, 2 Gall. 345; the Robert Fulton, 1 Paine, 620; the St. Jago de Cuba, 9 Wheat. 409; the New Jersey, 1 Peters Ad. Rep. 223, the Eagle, Bee, 78.
* Ordinance de la Marine, liv. 1, tit. 14, art. 16; 1 Valin, 363; Consulat de la Mer, ch. 32, 33, 34, Boucher's translation; Cleirac, Jurisdiction de la Marine, p. 851, art. 18, No. 5, 6.
* Abbott on Shipping, pp. 108-9.
* Dig. 20, 4, 5 and 6; Dig. 42, 5, 26 and 34.
* Peckius ad rem naut; note of Vinnius, 6, page 233; Voet, ad Pand. 20, 2, 28, and 20, 4, 19; Winnius, Select. Juris Quaest. lib. 2. Q. 4. Heinn, ad Pand. Pars 6, N. 263.