The Young Mechanic. the thing as to accompany it into whosesoever hands it may pass by a sale; which is not divested by a forfeiture or mortgage, or other incumbrance created by the debtor, can only be a jus in re, in contradistinction to a jus ad rem; or in contradistinction to a mere personal right or privilege. Though tacitly created by the law, and to be executed only by the aid of a court of justice, and resulting in a judicial sale, it is as really a property in the thing as the right of a pledgee or the lien of a bailee for work. The distinction between a jus in re and a jus ad rem was familiar to lawyers of the middle ages, and is said then to have first come into practical use, as the basis of the division of rights into real and personal. Sanders' Intro. to Just. p. 49. A jus in re is a right, or property in a thing, valid as against all mankind. A jus ad rem is a valid claim on one or more persons to do something, by force of which a jus in re will be acquired. Pothier, Traité du Droit de Domaine, ch. Pretences; Hugo, His. du Droit Rom. vol. 1, p. 118. The lawyers of the middle ages, who gave form to the customs of the seas, and arranged judicial proceedings to carry them into effect, certainly did not rank a lien or privilege among the jura ad rem. For it has been settled so long, that we know not its beginning, that a suit in the admiralty to enforce and execute a lien, is not an action against any particular person to compel him to do or forbear any thing; but a claim against all mankind; a suit in rem, asserting the claim of the libellant to the thing, as against all the world. It is a real action to enforce a real right. Just. L. 4, Tit. VI. de actionibus, and Sanders' note, p. 527. I have bestowed attention on the investigation of the nature of an admiralty lien, because it is essential to the decision of the case now before me. If such a lien be, as has been considered by learned judges, for whose opinions I have great respect, "only a privilege to arrest the vessel for the debt, which, of itself, constitutes no incumbrance on the vessel, and becomes such only by virtue of an actual attachment," The Triumph, 5 Law Rep. The Young Mechanic. New Series, 427; then it might be difficult to maintain that this statute lien, conferred by the local law, subsists after the statute insolvency of the estate of the decedent owner. But if, as I think, it is a real and vested interest in the thing, constituting an incumbrance placed thereon by operation of law, to be executed by a judicial process against the thing, to which no person is made a party, save by his voluntary intervention and claim, then the inability to maintain a suit against the administrator, and the incapacity to make any attachment of the property of the deceased in such a suit, though they may amount to infirmities in the remedy when pursued in the State Courts, do not affect the right of the creditor, nor his remedy in the admiralty. Indeed, if a maritime lien be merely a privilege to attach the vessel for a debt, which becomes an incumbrance only in virtue of an actual attachment, it is difficult to see, how it amounts to any special privilege in the New England States, where every creditor has the privilege of attaching all vessels for all debts, which become incumbrances by virtue of such attachments. Incumbrances created merely by attachments, must take rank, in the absence of positive provisions of law to the contrary, according to the dates of such attachments. But incumbrances created by maritime liens are marshalled according to the causes from which such liens spring. That is, they subsist, and bind the property, not in virtue of the legal process used to enforce them, but by operation of the law which creates them and fixes them on the property, at the moment when the debts are incurred. How they are to be marshalled, and what is the effect of a proceeding instituted by one lien creditor upon the rights of others, is quite a different question, upon which it is not necessary here to express any opinion. See The Globe, 5 Law Reporter, N. S. 421; The America, 6 ib. 264; The Ord. of Peter IV. in Pard. Col. 389, ch. 32–34; Emerigon, Con. a la Grosse, ch. 12, § 3; The Saracen, 2 Wm. Rob. 451. I consider the decision of the Supreme Court of Maine in The Oliver Jordan. Severance v. Hammatt's Ex'rs, 28 Maine, R. 511, shows only that there is an infirmity in the remedy under the local law. But the legislature must be taken to have known that the right conferred could be enforced in the admiralty where no such infirmity exists, and by the Act of 1850, c. 159, they promptly supplied the defects in the proceedings of their own courts. My opinion is, that the lien conferred by the local law was an existing incumbrance on the vessel, not divested or extinguished by the death or insolvency of the owner; and that, consequently, the decree of the District Court must be affirmed. Shepley, for the appellant. THE OLIVER JORDAN. Property in the custody of the law of a State, under an attachment, cannot be arrested by a warrant from a District Court, sitting in the admiralty, in a proceeding to enforce the lien of a material-man; consequently the District Court cannot proceed in rem, and if it do so, its decree is erroneous. THIS was an appeal from a decree of the District Court sitting in admiralty. The appellants were the Sheriff of the County of Cumberland, in the State of Maine, and the plaintiff in an action at law commenced in the Supreme Court of that State. Upon the original writ by which the action was commenced, the sheriff had attached The Oliver Jordan, and had the vessel in his custody under the attachment, when the libel was filed in the District Court, and the warrant of arrest issued. The libel asserted under the local law of Maine, a lien for materials. The suit in the Supreme Court of the The Oliver Jordan. State was also to enforce a similar lien. The plaintiff in that suit, and the sheriff appeared in the District Court, and took an exception to the jurisdiction, founded on the above facts. The exception was overruled, and a decree made in favor of the libellants, from which this appeal was taken. CURTIS, J. This vessel being in the custody of the law of the State, the marshal could not lawfully execute the warrant of arrest. Under our system of government, there is no mode of preventing a conflict of jurisdiction, but to consider persons and property which are in the custody of the law of a State, to be withdrawn from the process of the Courts of the United States, except in those cases where Congress has specially provided for an exercise of the supremacy of the laws of the United States; (see the Act of March 2, 1833, 4 Stat. at Large, 634, §7;) and, e contra, that persons and property in the custody of the law of the United States as not being subject to any State process. This rule has been frequently laid down and applied. In Harris v. Dennie, 3 Pet. 299, it was held, that goods imported from a foreign country, and not yet entered, being in the custody of the laws of the United States, could not be attached by State process. In Hagan v. Lucas, 10 Peters, 400, it was decided, that the first levy of an execution upon property, whether made under the jurisdiction of the United States, or of a State, withdraws the property from the reach of process from the other jurisdiction. This was reaffirmed in Brown v. Clarke, 4 How. 4, and was again applied in Pulliam v. Osborne, 17 Ib. 471. See, also, Taylor v. The Royal Saxon, 1 Wallace, Jr. 311. In the case of The Ship Robert Fulton, 1 Paine's C. C. R. 620, Mr. Justice Thompson had before him, a case not distinguishable from the case at bar. He held that the warrant of arrest could not be lawfully executed, and consequently the District Court could not lawfully proceed in rem. I concur Purinton v. The Hull of a New Ship. with him in that opinion, and the decree of the District Court must be reversed. But I shall not now order the libel to be dismissed. The State process may be so terminated as to render it practicable to proceed in the admiralty against the vessel. I shall retain the libel, if the libellant desires it, to allow him an opportunity to learn whether he can make use of the jurisdiction; and he may hereafter submit such motion as he may be advised is proper.. Deblois and Gould, for the appellants. PURINTON VS. THE HULL OF A NEW SHIP. Under the local law of Maine, a subcontractor, who performs labor in building a vessel, may have a lien on such vessel. It is competent for the legislature to confer a lien in such a case. THIS was an appeal from a decree of the District Court, in a suit by the appellee to enforce a lien for his wages as a joiner, for work done on the vessel proceeded against. It appeared that the claimants, being engaged in building this ship, contracted with one Chapman to do the joiner work at a fixed rate per ton. Chapman employed Purinton, the libellant, who did work on the vessel, amounting to $175. CURTIS, J. This case turns on the question whether a laborer, who contracts with a middle man, has a lien by the local law of Maine, for his wages earned in assisting to build a vessel. This depends on the construction of the act which confers the lien. (Rev. St. ch. 125, sec. 35.) The words of the law are: "Every ship carpenter, caulker, blacksmith, joiner, or |