The Schooner Marion. now under discussion. Whether he is a necessary or proper party will depend upon the Act of Congress, and also upon the general principles, which regulate the exercise of this branch of Equity Jurisprudence. I have no difficulty in overruling the plea and assigning the defendant to answer further in the premises. Plea overruled. THE SCHOONER MARION, LAWRENCE GRINNell, CLAIMANT. There is no statute law in Massachusetts, which gives a lien in rem to shipwrights for building, equipping, or repairing ships. By the common law, no lien exists generally for repairs and work done on a domestic ship; but a shipwright has a lien for the repairs and work done on such a ship, so long as she remains in his possession. And the owner can only devest that possession by a discharge of the lien. er retain possession during the repairs, or if after the repairs are made, the shipwright voluntarily yield up the possession, his lien is gone. Yet, if the own It is of no consequence, how a lien arises under the Local Law, whether by statute or by common or municipal Law. Whenever its existence is established, the jurisdiction of the admiralty attaches to it proprio rigore. Under the facts and circumstances of this case it was held, that a lien attached upon a vessel by the common law, for materials furnished and repairs made, and that it had not been devested by a voluntary surrender of the vessel by the owner. LIBEL for repairs and materials for the schooner Marion, and work and labor done on her in the port of New Bedford, to which port the schooner belonged, in October and November, 1839, amounting in the whole to the sum of $221.49. There was no dispute about the amount due for the repairs, work, and materials. But when the repairs were undertaken, one Goodwin was the owner, and he subsequently transferred the schoon The Schooner Marion. er during the time of the repairs to the claimant, Grinnell. The answer insisted, that the libellant (McFarlin) had no lien on the schooner for repairs; but that they were a personal charge only against the owner. The original libel was jointly filed by Seth McFarlin and one William Spooner, the latter of whom asserted a distinct and independent claim for painting done by him on the schooner, amounting to the sum of $100. But an exception having been taken in the District Court, that these distinct and independent claims could not, in the Admiralty, be joined in one libel, it was agreed between the parties, that the libel should be severed, and that each libellant should proceed separately for his own claim. Upon the hearing in the District Court, a decree was rendered in favor of the libellant (McFarlin), for the sum of $221.49; and from that decree, an appeal was taken to this Court by the claimant. The cause was at this term argued by G. T. Curtis, for the claimant, and by Brigham, for the libellant. On the part of the libellant, it was admitted, that, by the general maritime law, shipwrights and material men had no lien upon a domestic ship for repairs or supplies. But it was contended, that, by the local law of Massachusetts, the shipwright had a lien so long as he kept possession of the ship, and that such lien could be enforced in the Admiralty. In the case at bar, the claimant had the ship in his possession, and he could no more be compelled to abandon that possession without being first paid, than a mechanic or artisan would be required to surrender any article, which he had made or repaired, without being first paid. Upon the question of lien, the counsel cited Peyroux v. Howard (7 Peters's R. 324); The General Smith (4 Wheaton, 438); The Nestor (1 Sum. 73); 3 Kent's Com. 169; Sto The Schooner Marion. ry on Bailments, § 440; Montague on Lien; Abbott on Shipping, 108. Upon the point of the jurisdiction of the Admiralty, the counsel cited The Robert Fulton (1 Paine, 620); Harper v. A New Brig (Gilpin's D. C. R. 539) ; and Davis v. A New Brig (id. 482). For the claimant, it was admitted, that the Court had full jurisdiction of the matter, and that the only question was, whether the libellant had a lien by the local law of Massachusetts. The vessel being a domestic ship, no lien is given by the general maritime law. There is no statute of this Commonwealth giving such a lien; and what the libellant is to show, therefore, is, that he has a lien by the common law of Massachusetts. The common law lien is a mere right to detain the thing put into the party's possession to be repaired, until his charges are paid; a strict possessory lien founded on actual possession and a consequent right of detention. The Nestor (1 Sumner's R. 81); Abbott on Ship. p. 108, s. 10. This, the counsel contended, is the unquestionable law of England; and to show, that the law of this country was the same, it was argued, 1. From the absence of all authority to show, that it was different; 2. From the recognition of this doctrine by this Court in The Nestor; 3. From the various statutes passed by the State legislatures to amend the common law, and supply a lien, which should be operative out of possession. To show that the possession must be actual and exclusive, and so far as it is evidenced by locality, must be in the exclusive dominion of the party claiming the right of detention, he cited Abbott on Ship. p. 108; Story on Bailments, § 440; Story on Agency, § 352; Franklin v. Hosier (4 B. & Al. 341); Raitt v. Mitchell (4 Campb. 146); Blake v. Nichol The Schooner Marion. son (3 M. & S. 167); Chase v. Westmore (5 ib. 180); Ex parte Bland (2 Rose, 91); Ex parte Hill (1 Mad. 61); Ex parte Deese (1 Atk. 228); The Lady Horatia (Bee's R. 167). The idea of two concurrent liens of this sort, that is, of two concurrent rights of detention by parties having no privity of interest, is impossible. Pothier, Traité de la Possession, chap. 4, § 1. For if the liens conflict, and the thing is sold without producing enough to pay both, what is to determine the apportionment? Liens, standing in the same rank of privilege, as those of different seamen for their wages, may be apportioned; because they do not depend on possession, and, therefore, do not involve the idea of exclusion. But it is otherwise with liens founded on possession, which necessarily involves exclusion. Jacobs v. Latour (5 Bing. R. 130). Hence, it was argued, that, as the record here shows two parties, each claiming the possession, without any privity of interest, and the evidence tended to show an actual possession by both at the same time, neither of them had such an exclusive possession, which was indispensable to give a power to detain the vessel. It was further argued, upon the evidence, that the libellant never took the vessel into his custody; but that she lay at a public wharf, where the dockage was charged to the vessel itself, and not to the libellant, and other mechanics came on board there and worked. STORY J. This is a libel against a domestic ship, for materials furnished and repairs made upon her in the port of New Bedford, in this district, to which port she belonged at the time of the repairs. Under such circumstances, it is admitted, that no lien attaches upon the ship by the general maritime law, as far as it is recognised and enforced in the Courts of England and America. The Schooner Marion. But the Admiralty Courts of this country possess a general jurisdiction in all cases of material-men, and shipwrights, for work done, and materials furnished for ships, engaged or employed in maritime commerce and navigation, which may be exercised in personam at all times; but can be exercised in rem only upon the maritime law, or in its silence, where the local law of the state or country, where the work and materials are applied, gives a lien. This was held in the case of The General Smith (4 Wheaton's R. 438); and the doctrine of that case has been constantly acted upon in this Court, as well as in the Supreme Court, whenever the question has arisen, and has been required to be decided.' In the present case, there is no statute of this Commonwealth, which gives a lien in rem to shipwrights and others for building, equipping, or repairing ships, although in most of the commercial States of the Union such statutes do exist. They are founded in a wise protective policy, and I can only express my surprise and regret, that our State legislature has not provided the like remedy for this most important and useful class of our citizens, especially as it has given to carpenters and others a lien on houses under similar circum stances. But, although no State statute exists on this subject, yet as we all know, by the common law, which is a part of the law of Massachusetts, every shipwright has a lien for repairs and work done on a ship, while she is in his possession; and the owner or purchaser cannot devest that possession, except by a discharge of that lien. But this lien is strictly founded upon possession; and, therefore, if the possession either remain in the owner during the repairs, or after the repairs are 1 See Peyroux v. Howard (7 Peters R. 324). See also, The Robert Fulton (1 Paine's R. 620); Davis v. A New Brig (Gilpin's R. 473). |