ty has no jurisdiction over contracts for repairs and supplies to domestic ships, from what source the rule of decision was derived that the words "all cases of admiralty and maritime jurisdiction" include jurisdiction over contracts for repairs and supplies even to a foreign ship or to the ship of a State to which the ship does not belong, as no such jurisdiction was exercised by the admiralty court of the parent country at the time of the separation. Two suggestions may be made in response to that argument: 1. That the words of the Constitution may refer to the admiralty jurisdiction of the parent country before it had been narrowed by the unfriendly prohibitions of the common law courts. Admit that; but then it follows, beyond peradventure, that the same rule of decision which construes the words of the Constitution conferring admiralty power as including jurisdiction over contracts for repairs and supplies to foreign ships, must lead to the same conclusion in respect to contracts and supplies furnished to 597*] domestic ships, as the ancient *jurisdiction of the admiralty courts of the parent country extended to such contracts, whether the repairs and supplies were furnished to foreign or domestic ships. By the civil law, every one who repaired or supplied a ship, had a privilege or lien upon the ship herself for the amount of the debt thus contracted, and for centuries the admiralty courts of that country exercised such jurisdiction, in respect to which the best text writers say that the lien or privilege extended to all ships and vessels, without any distinction between foreign and domestic ships. The Nestor, supra; 2 Pars. Cont., 6th ed., 260. Indeed, it is not easy to see, says Benedict, how any difference can exist in principle; if one is a ship or vessel, so is the other; if one is a maritime contract, so must be the other; and the same law and the same reason which give the rule in the one case give it in the other. In both it is for service, labor, materials and supplies furnished, which, when used for the purpose, become a part of the vessel, and a lien attaches to her because the repairs and supplies were for her benefit, which is just as true of a domestic ship as of a foreign ship. Ben., 2d ed., sec. 272; 2 Pars. Ship., 322. By the civil law and the general maritime law, says Parsons, the lien or privilege extends to all ships, without any distinction between foreign and domestic vessels; and he asserts that the admiralty courts of the parent country exercised that jurisdiction until they were compelled to abandon it by the prohibitions of the common law courts, for which there is the highest authority. Furnishers of repairs and supplies, says Lord Stowell, in most of the countries governed by the civil law, have a lien on the ship itself, and in our country the same doctrine had for a long time been held by the maritime courts, but after a long contest it was finally overthrown by the courts of common law and by the highest judicatory of the country. The Zodiac, 1 Hagg. Adm., 325; Rich v. Coe, 2 Cowp., 639; Farmer v. Davies, 1 T. R., 109. Argument to show that a contract to fur598*] nish repairs and *supplies, whether to a domestic or foreign ship, is a maritime contract, 21 WALL is hardly necessary, as there is not a well con sidered decision to the contrary in our language, and the twelfth Admiralty Rule, throughout all its mutations, from the time it was first adopted to the present time, has always given the district courts jurisdiction over such contracts either in rem or in personam. Both the enemies and the friends of the admiralty have always concurred in that proposition, which leaves nothing in controversy in this case except the question whether a maritime lien arises where the contract is to furnish repairs and supplies for a domestic ship, as it must be conceded that wherever there is a maritime lien it may be enforced in the admiralty. Maritime liens differ from common law liens in important particulars, as common law liens are always connected with the possession of the thing and are lost when the possession is relindoes not in any manner depend upon the possesquished. On the other hand, a maritime lien sion, as it is a right affecting the thing itself, which gives a proprietary interest in it and a right to proceed against it to recover that interest. Jurisdiction exists in the admiralty in all such cases, and the rule is, that wherever there is a maritime lien upon the property it adheres to the proceeds in case of sale and follows the same into whose hands soever they may go, and the proceeds under such circumstances civil law writers frequently call it a privilege, may be attached in the admiralty. Jurists and and it is well settled that the proceeding in rem in the admiralty is the only proper process to enforce such an interest. Usually a maritime lien is the proper foundation of a proceeding in rem, as such process is seldom or never appropriate for any purpose except to enforce the inchoate interest created by such a lien, and the law appears to be well settled that where a proceeding in rem is the proper pleading, there a maritime lien exists in the thing which it is the office of such a process or pleading to perfect. Harmer v. Bell, 7 Wall., 215, 18 L. ed. 754. Moore, P. C., 284; The Rock Island Bridge, & *Successful contradiction of the prop- [*599 osition that the party furnishing repairs and supplies to a domestic ship, as well as he who furnished such repairs and supplies to a foreign ship, had a lien upon the ship by the ancient admiralty law of the parent country cannot be made, as the judicial history of that country is full of evidence to establish the affirmative of the proposition in its full length and breadth. The Neptune, 3 Hagg., 142; 2 Life Jenkins, 746; 1 Pars. Mar. L., 490; Hoare v. Clement, 2 Show., 338; Justin v. Ballam, 1 Salk., 34; Watkinson v. Bernadiston, 2 P. Wms., 367; Wilkins v. Carmichael, 1 Doug., 105; Ex parte Shank. Atk., 234; 1 Pars. Ship., 322. Admitted or not, the proposition is established; and it would seem to follow that if it was that practice which led the Supreme Court to the conclusion that the words "All cases of admiralty and maritime jurisdiction" must include contracts for repairs and supplies furnished to foreign ships, that. the same practice should induce the court to hold that the same words also include repairs and supplies furnished to domestic ships, inasmuch as that ruling will correspond as well with the civil law and the general maritime law. as with the ancient practice of the admiralty court of the parent country. 669 ANN 2. All agree that the framers of the Constitution, when they employed the words "all cases of admiralty and maritime jurisdiction" must have had in view some system of maritime jurisprudence, and those who deny that the reference was to the general maritime regulations of the commercial world usually insist, either that the reference was to the English system, as known at the date of the Revolution, or to the system and practice known in the States prior to the adoption of the Federal Constitution. Much discussion at this day, to refute the theory that it was the crippled and servile system of the parent country as it existed at the dawn of our independence, is quite unnecessary, as the reports of the decisions of the Supreme Court are interspersed throughout with cases in which that theory is denied and overruled. 600*] None, it is believed, will *now deny that the better source of reference in expounding that part of the Constitution, in order to ascer tain the extent and boundaries of the admiralty jurisdiction, is to the system and practice in that regard of the admiralty courts during colonial times and before the Federal Constitution was ratified. courts have been published, and they prove that those courts were vested with jurisdiction over all maritime causes and cases in the most unqualified terms. Ben. Adm., 2d ed., § 151; Stokes, Col. Hist., 166; Waring v. Clarke, 5 How., 454; Ins. Co. v. Dunham, 11 Wall., 10, 20, L. ed. 90. Two volumes of the proceedings of those courts in colonial times have recently been found among the papers of a registrar of the court and deposited in a public library in the City of Boston, which are full of instruction on the subject. Libels for contribution are there found both in rem and in personam, and libels on charter-parties and on contracts of affreightment, and libels by material men, both in rem and in personam, for repairs and supplies furnished in the home port, showing conclusively that the jurisdiction of those courts extended to all cases of admiralty and maritime jurisdiction as understood for centuries in the parent country until the power of the admiralty court was paralyzed by the prohibitions of the courts of common law. Ins. Co. v. Dunham, supra. Throughout many years of our judicial his tory it was a vexed question whether the disStill, the same conclusion must follow as if trict courts could exercise jurisdiction in cases the question was tested by the system and prac-founded upon marine policies of insurance, and tice of the admiralty courts of the parent country as it existed before the essential features of that system were annulled and overthrown by the prohibitions of the courts of common law, for the reason that the history of that period shows to a demonstration that the admiralty courts, organized in the Colonies prior to the Revolution, claimed and exercised such jurisdiction over contracts for repairs and supplies furnished to domestic ships, as well as over contracts to furnish such necessaries to foreign ships. Matters of admiralty cognizance were, in most cases, reserved to the Crown in the colonial charters, but the first charter granted to the Colony of Massachusetts Bay contained no such reservation. Consequently, jurisdiction of such matters was exercised in that Colony under that charter by a court of assistants or ganized by the Colony, whose powers and functions were prescribed and regulated by a colonial ordinance, the last article of which ordained that "All cases of admiralty shall be heard and determined by the court of assistants without a jury, unless the court shall see cause to the contrary, Provided, always, that this Act shall not be interpreted to obstruct the just plea of any mariner or merchant, impleading any person in any other court upon any matter or cause that depends upon contract, cove nant or other matter of common equity in maritime affairs." Ancient Charters, App., p. 716. Without any explanation, it is apparent from the words of the ordinance that it vests in the court thereby created full jurisdiction over all maritime cases of contract, covenant or other matters of equity, reserving to the suitor the *601] right to choose a common law remedy in cases where the common law is competent to give it. Eighteen years later the charter was granted to the Province of Massachusetts Bay, and by that charter all such jurisdiction, power and authority were reserved to the Crown, to be exercised by virtue of commissions issued under the great seal. Commissions of the kind issued to the judges of the provincial admiralty all agree that the discovery of those volumes containing the proceedings of the colonial admiralty courts contributed very much to the true solution of that question. Authentic proof is there exhibited that the colonial admiralty courts exercised jurisdiction in such cases, and the proof is equally full and undeniable that those courts also exercised jurisdiction in rem in favor of material men to enforce the payment of their claims for repairs and supplies furnished to domestic ships. *Creditors of the kind have suffered [*602 very severely for nearly twenty years, and it seems cruel to deny them all means of proceeding against the ship, when every proctor knows that it is the only remedy they ever had which is of much value. Suggestion is sometimes made that the court may restore the old twelfth Rule and give the district courts authority in such cases to enforce the state law lien by a proceeding in rem. Such an expedient was tried for many years, and it seems to me that the experience of that trial, as given by the late Chief Justice Taney, ought to deter any well-wisher of the federal system from any attempt to re-establish a practice which so signally failed in the for mer trial. Necessaries, whether for repairs or supplies, are usually ordered by the master, and the best text writers say that his authority is sufficient to cover all such repairs and the supply of such provisions and other things as are necessary to the due employment of the ship, and that it extends even to the borrowing of money in the absence of the owner, if ready money is required for the purpose of the same employment. Macl. Ship., 129; Beldon v. Campbell, 6 Exch., 886; 1 Conkl. Adm., 73. Frequent credit is indispensable in cases of emergency, and all experience shows that in many cases it cannot be obtained unless the merchant, provision dealer, material man or ship-chandler is allowed a lien on the ship which may be enforced by a libel in rem, as the master and owner are often of too doubtful responsibility and too frequently becomes insolvent to enable the master to procure such necessaries without other security. State lien laws are too complicated and pregnant with too many conditions and special regulations in their machinery to be administered in a court of admiralty, even if it be competent for this court to provide for the exercise of such a jurisdiction by a district court sitting as a court of admiralty. Authority to make rules, it is conceded, is 603*] vested in this *court, and it may be that such a rule might not be productive of very serious embarrassment if the state lien laws were permanent laws and gave the lien in general terms, without specific conditions or limitations inconsistent with the rules and principles of the maritime lien. But the state lien laws, even in such a case, were enforced under the old twelfth Rule, not as a right which the admiralty court was bound to carry into execution upon the application of the libellant. On the contrary, those who framed the Rule always regarded it in the light of a lien established by a foreign country, which the admiralty court might, at its discretion, enforce under that Rule in cases where it did not involve controversies beyond the limits of admiralty jurisdiction. The St. Lawrence, 1 Black, 522, 17 L. ed., 180. Process in rem was authorized by that Rule upon the ground that the local laws gave the lien where none was given of a maritime character, and the court in that case proceeded to say that the practice was found to be inconvenient in most cases and absolutely impracticable in others, which induced the court to repeal the Rule. Different expedients have since been tried, as appears from the various modifications to which that Rule has been subjected, and now it is suggested that it may become advisable to return to the practice which the justices who framed that Rule found it necessary to abandon "As entirely alien to the purposes for which the admiralty power was created, and decided that it formed no part of the code of laws which the admiralty was established to administer." Before doing so it may be wise to weigh the reasons given by the justices who framed that Rule as the grounds for its aban donment. libelant under the provisions of a statute of an- Sess. Reasons, such as those given by the court in cation; and the further provision is that liens Important duties are also imposed upon the officer who issued the warrant. He must direct that a notice containing certain prescribed requisites shall be published in one or more of the newspapers printed in the county, in order that any other person having such a lien upon the ship or vessel may deliver to the said officer an account in writing of his demand, accompanied by the prescribed affidavits and proofs; and the Act provides that every such person shall be deemed an attaching creditor and shall be entiIn many of the States, say the court, the laws tled to the same benefits and advantage and be were found not to harmonize with the principles subject to the same responsibilities and obligaand rules of the maritine Code. Certain conditions as the creditor who made the first applitions and forms of proceeding were required to obtain the lien, and it was generally declared to be forfeited or regarded as waived after the lapse of a certain time, or upon some future 604*] contingency. These conditions and limitations differed in different States, and if the process is to be used wherever the local law gives the lien, it will subject the admiralty court to the necessity of examining and expounding the lien laws of every State and of carrying the same into execution, and that, too, in controversies where the existence of the lien is denied and the right depends altogether on a disputed construction of a state statute; or indeed, in some cases, of conflicting claims under the statutes of different States, as when the vessel formerly belonged to the port of another State where she also became subject to a state law lien. Cases also arise where a third party claims a lien prior and superior to that of the Massachusetts has also passed laws to accomplish the same general purpose, which, in effect, give a lien on the ship to the material-man and materials, or provisions, or stores, for or who, in that State, has furnished labor or labor of such debt, the lien to continue until the debt on account of such ship, to secure the payment is satisfied, unless it be dissolved, as it may be, if the creditor does not, within four days from the time the ship departs from the port, file in the clerk's office of the city or town a statement, subscribed and sworn to as prescribed, giving a just and true account of his demand, with all just credits and the other particulars therein required. Provision is also made for the enforcement of the lien by petition to the ANN Superior Court of the county where the vessel was when the debt was contracted, and the mode of proceeding prescribed is that the petition may be entered in court or filed in vacation, 606*] in the clerk's office, or may be inserted in a writ of original summons, with an order of attachment, and be served, returned and entered as other civil actions; and that the subsequent proceedings for enforcing the lien shall, except as therein further provided, be as scribed in the Act for enforcing liens on buildings and land. Gen. Stat. Mass., 768. that anyone at all acquainted with the prac tice in suits in rem will see at a glance that the admiralty courts, as now organized, are utterly incompetent to execute such conditions and regulations. Alterations, it is said, may be made in the organization of the district courts to obviate that difficulty, but the incompetency of those courts to administer such regulations under existing laws is by no means the only obpre-jection to such an experiment, as it may well be doubted whether this court, in view of the great number of such enactments, and the frequent changes to which the enactment of each State is annually exposed, will be able to perform all the duties which the adoption of such a system would impose, without leaving unperformed many of the high purposes contemplated by the Constitution and the original Judiciary Act. Any number of persons having such liens upon the same ship may join in the same petition to enforce the same, and the same proceedings shall be had in regard to the respective rights of each petitioner; and the claims of all shall be marshaled to prevent a double lien for the same labor, materials, stores or provisions, and to secure the just rights of all. Proper costs and expenses are to be deducted from the proceeds, and the residue is to be distributed among the several claimants, paying them in full or pro rata as circumstances may require. Laws to the same end have been passed by the Legislature of New York. Debts contracted within that State, to the amount of $50, by the master, owner, charterers, builder or consignee of any sea-going or ocean-bound ship, on account of work done or materials or other articles furnished towards the building, repairing, fitting, furnishing or equipping such a ship are made a lien upon the ship, her tackle, apparel and furniture, in preference to all other liens except mariners' wages. Provisions and stores furnished, wharfage and the expense of keeping the ship in port, and services in loading and unloading the ship, and debts for towing or piloting, of the amount of $25, are also included in the same category and are entitled to the same lien. Detailed means are also provided for enforcing the lien, whether the repairs and supplies are to ocean-bound ships or smaller vessels. Liens of the kind cease at the expiration of six months after the debt was contracted, unless the ship was absent from the port when the six months expired; in which case the provision is 607*] that the lien shall continue ten days after the ship shall next return to the port, subject, however, to the condition that the debt shall cease to be a lien whenever the ship shall leave the port, unless the creditor shall, within twelve days after her departure, cause to be drawn up and filed specifications of such lien as therein provided, with a statement under oath of the amount claimed to be due, and file the same specification in the office of the clerk of the county or city, as therein more fully set forth. Compliance with these requisites being shown, the creditor may apply to a Justice of the Supreme Court, at chambers, in the proper county, for a warrant to enforce the lien and to collect the amount. All the various steps required to be taken to enforce the lien and to collect the debt are then prescribed, every one of which is "Alien to the purposes for which the admiralty power was created, and forms no part of the Code of laws which it was established to administer." 4 Stat. at L., N. Y., 653. Separate examination of the different features of these several enactments will not be attempted, nor is it necessary, as it is manifest These several conclusions render it unnecessary to give much examination to the other objections urged by the appellees to the pretensions of the appellants, that they are* [*608 entitled to the balance of the fund in the registry of the court by virtue of their mortgage, which has never been formally foreclosed. They are mortgagees, and inasmuch as their mortgage has never been foreclosed and their claim is opposed by the owner of the steamer, I am of the opinion that the district court, sitting as a court of admiralty, had no jurisdiction of the cause of action, and that the decree of the circuit court reversing the decree of the district court is correct. Schuchardt v. The Angelique, 19 How., 241, 15 L. ed., 626; Bogart v. The John Jay, 17 How., 401, 15 L. ed. 95; The Neptune, 3 Hagg. Adm., 132; The Dowthorpe, 2 W. Rob., 73; The Sailor Prince, 1 Ben., 461. Even suppose that difficulty may be obviated, which is denied, still the governing rule of decision remains, that the appellees as material men have a superior lien by virtue of the maritime law. Clearly that would be so in any commercial country in the world, except England, unless our own country must be included in that category. Commentators everywhere agree that, by the civil law and the law of those countries which have adopted its principles, a lien upon the ship is given without any express contract, to those who repair her or furnish her with necessaries, either at home or abroad. Maude & P. Ship., 67; 1 Valin, 363, 369; Ord. de la Mar., Title 2, art. 1; Cleirac, Jur. de la Mar., 351, art. 6; Casaregis, Dis.. 18; 2 Bro., Civ. & Adm. L., 142; Roccus, de Nav. et Nat., 82, 91-93. Sufficient, has been remarked to show that the jurisdiction of the district courts is not limited to the particular subjects over which the admiralty courts of the parent country exercised jurisdiction when the colonists immigrated here and formed themselves into new communities, and it may be admitted that it does not extend to all cases which would fall within it according to the civil law and the practices and usages of continental Europe. Our ancestors, when they immigrated here, organized themselves into colonies and assumed and exercised all the powers of government. They enacted new laws, and those in operation were, in many cases, modified. Judicatories *were created and em- [*609 powered to hear and determine legal controversies, including all those of a mari time character, wholly unrestricted by the prohibitions of the common law courts of the country from which they had emigrated; and when in the progress of events they found it necessary and proper to frame the Federal Constitution and saw fit to provide that the judicial power shall extend to "all cases of admiralty and maritime jurisdiction," it was to the admiralty jurisdiction as it was known and understood in the States to which they referred. Proofs of the highest character are now exhibited that the admiralty courts of the States did exercise jurisdiction over contracts for repairs and supplies furnished to domestic ships as well as to foreign ships, and it follows, as it seems to me, that the appellees in this case had a maritime lien upon the steamer and that the same attaches to the proceeds in the registry of the court below, and that the decree of the circuit court should be affirmed. Also dissenting, Mr. Justice Field. 430*] *SIDNEY 'DILLON, Appt., v. murred, and the circuit court sustained the de- The basis on which the bill rests is article "6th. That the expenditure of all sums of money realized by or from the sale of the bonds issued under this mortgage, shall be made with the approval of at least one of the said trustees, whose assent in writing shall be necessary to all contracts by the party of the first part, before the same shall be a charge upon any of the sums received from such sales." The bill avers that, in Oct., 1867, the plaintiff made with the Company a contract in writing to construct a portion of the road, and that this contract was approved in writing by the trustees. "That the purpose, object, intention and understanding of the parties, to wit: the Corporation, the trustees and the plaintiff, in procuring said approval, in making the same, and in accepting said contract so approved, was that the sums to become due to complainant under that contract should be a charge upon the sums to T.be received from said sales of said bonds." GEORGE M. BARNARD et al., Assignees Trustees. (See S. C., 21 Wall., 430-440.) Demurrer to bill in equity, admissions by-lien of contractor on a fund, how created when not created by covenant. 1. A demurrer to a bill in equity does not admit the correctness of averments as to the meaning of an instrument set forth in, or annexed to, the bill. 2. To create for future services of a contractor a lien upon particular funds of his employer, there must be, not only the express promise of the employer to apply them in payment of such services, upon which the contractor relies, but there must be some act of appropriation on the part of the employer, relinquishing control of the funds and conferring upon the contractor the right to have them thus applied when the services are rendered. 3. In an indenture of mortgage executed by a railroad corporation to trustees, to secure bonds is sued to raise moneys to pay off its existing indebtedness and to complete and equip its road, the corporation covenanted with the trustees, among other things, that the expenditure of all sums of money realized from the sale of the bonds should be made with the approval of at least one of the trustees, and his assent in writing should be necessary to all contracts made by the company before the same should be a charge upon any of the sums received from such sales; held, that a contractor agreeing with the corporation to construct a portion of the road, and obtaining the assent of two of the trustees to his contract, and subsequently doing the work, did not acquire any lien for the payment of his work, under this cove "That the complainant thereafter undertook and his said reliance thereon was at all times Now, these allegations are all allegations of They are facts open to proof by evidence of the contemporaneous declarations, acts and conduct of the defendants and of the plaintiff. If they are of any weight and are by law admissible for any purpose, then they are, by the demurrer, confessed to be true. The use we desire to make of these admissions is, that if a careful scrutiny of the terms of the contract with the other aids to its construction shall leave that construction doubtful, then the confessed contemporaneous construction of all parties, and the grave acts of the plaintiff admitted to have been done under that construction, and to have been known by the defendants to have been so done, will tend to remove the doubt. Noonan v. Bradley, 9 Wall., 407., 19 L. ed. 761; nant of the indenture, upon the fund received by ed. 951; Stone v. Clark. 1 Met., 381; LivR. Co. v. Trimble, 10 Wall., 377 19 L. the corporation from the bonds. [No. 228.] ingston v. Ten Broeck, 16 Johns., 22. We turn then to the question as to what (aside from these admissions) is in legal con Argued Apr. 15, 16, 1875. Decided May 3, 1875. templation the true force and effect of the PPEAL from the Circuit Court of the Unit A ed States for the District of Massachusetts. The bill in this case was filed in the court below by the appellant. The defendants de*Headnotes by Mr. Justice FIELD. language constituting this 6th article. An inspection of the mortgage shows that it upon the trustees, in the application not only of ANN |