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 Fox 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

2

1 7 Peters, 324.

2

Gilpin, 474.

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 prælationis, 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,

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1 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. 2 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.

3 Abbott on Shipping, pp. 108-9.

4 Dig. 20, 4, 5 and 6; Dig. 42, 5, 26 and 34.

5 Peckius ad rem naut; note of Vinnius, 6, page 233; Voet, ad Pand. 20, 2, 28, and 20, 4, 19; Vinnius, Select. Juris Quæst. lib. 2. Q. 4. Heinn. ad Pand. Pars 6, N. 263.

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 im. portant modification, giving to the privileged the rights of an hypothecary creditor, and raising the privilege to an hypothecation.

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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

dence of all other attachments where no such lien exists."

That

labor was actually performed by Read in the building of the vessel has been sufficiently proved and is not now denied. The question which has been discussed at the bar is, whether it was performed under such circumstances as entitle him to the benefit of the law. For it is not sufficient that materials be furnished, or labor and service rendered in the construction of a vessel. This must be done by virtue of an agreement; and what sort of an agreement will bring a party within the privilege of the act is the precise question which is involved, and has been learnedly argued in this case.

There was no written contract between the parties, and there is no direct proof of the terms of the agreement by which Read was engaged. They are left by the testimony to be inferred from the circumstances under which the engagement was made and the manner in which the contract, whatever it might be, was executed. It appears that about the 16th or 17th of April, Read came to the house of captain Spear, the builder, a stranger and by birth a foreigner, in a state of great destitution, and wished for employment. Spear took him into his house, furnished him with some clothing and employed him a few days for his board. He then left and went to Portland to seek business, but not being successful in obtaining it, he returned and was again employed by Spear; and continued in his service until November, when he was finally discharged. For the first month he was employed exclusively in gardening, planting, laying stone wall, and other labor on the farm. About the beginning of June he went into the smithery and was engaged part of the time at his trade as a blacksmith, in doing the iron work for the vessel. Butman, one of the witnesses, who was also employed as a blacksmith for two months and eight days from the 19th of May, says that during that time he constantly worked with Read, and that about half the time they worked in the shop and about half of the time on the farm, on the highways, in the woods getting timber, and various work. After that period and until Read was finally discharged, his employment was not wholly, but was more exclusively upon

the vessel, either in the shop preparing the iron work, or in the yard boring on the ship. While in the smithery, however, he was not wholly occupied in work for the vessel, but occasionally did other jobs which were brought by the neighbors to the shop, but all on Spear's account. The proportion of the time employed upon the vessel is not clearly proved, but is estimated by some of the witnesses at about three fourths of the whole period from the commencement to the close of his employment.

It has been already observed that the statute does not create a lien for materials and labor upon the simple and naked fact that they have been actually employed in the building of the vessel; the lien arises only when the materials and labor are furnished by virtue of a previous agreement. The argument of the libellant's counsel is, that the performance of the labor or the supply of the materials having been proved, and the actual appropriations of them to the finishing of the vessel, it is unnecessary to proceed further and show the agreement in pursuance of which it was done; but the fact that it was done in the execution of a previous contract, results as a presumption of law. To a certain extent this is undoubtedly true. If labor has been performed for another with his knowledge and under his direction, or goods have been furnished, received, and consumed by him, the law will certainly imply from these facts an agreement. But what agreement will be presumed? Why; on the part of the person who receives the benefit, that he agreed to pay what they were reasonably worth, and ordinarily nothing more. Suppose a man, who is by trade and occupation a ship builder, hires a laborer to work for him a year, but the particular terms of the engagement, except its duration, are not susceptible of proof. The law will imply nothing more than that he should perform such services as are usually required of hired laborers, and after the contract is executed, that the hirer shall pay him a reasonable compensation for such services. Again, suppose such a ship builder to purchase a quantity of lumber suitable for ship building; if the particular terms and conditions of the contract do not appear, the law will imply nothing more on the part of the purchaser ordinarily, than