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rules give authority to the master to pledge for supplies, and perhaps for repairs, even in a home port, the share in a vessel of a part owner who refuses to contribute proportionally to the maintenance of the vessel. A formal hypothecation is required, and formal summons to the delinquent owner. Consolato, Pard. II, 223. See Law of Ancona 1397, Pard. V, 118. By the law of Sweden, if the other owners furnished the supplies, the delinquent owner's share was ex ipso facto hypothecated to them. Pard. III, 160.

It is not necessary even to cite the laws giving a master authority to sell part of the cargo in order to repair or provision his ship. The connection of this authority with the right to create a lien upon the ship itself illustrates, however, the nature of this lien. We may pass over, likewise, the laws which deal with the binding of the owner of a vessel by the contracts of its master acting as his agent or servant, though these last also illustrate the nature of the lien of the materialman. There are laws which deal with the lien apart from the liability of the owner. Thus, by the customs of Amsterdam, Pard. I, 420, if the cargo is sold to supply the ship, its owner has a lien for its price upon the vessel, irrespective of a change in the vessel's ownership. See the Consolato, Pard. II, 110. By the Consolato, Pard. II, 225, the master may borrow in a port where no owner is present, and there is necessity. In this case all the body of the ship shall pay the loan, and no owner shall contest it. By the Law of Sweden, Pard. III, 159, the owners can escape liability upon the master's contract by abandoning the ship,-a rule which seems to imply a lien.

These varying provisions of law, so often referred to in the judgments of English and American courts, and not exhaustively cited here, make the peculiar rights of the materialman against the ship, whatever these may be, depend in general upon the authority vested in the master, in case of need and in the absence of the owner, to deal with the owner's property. The authority of the master must be shown in order to create a lien by hypothecation. There must be sufficient evidence of necessity and of the owner's absence, for when the owner is present the necessity is his, and not that of the master or ship. For these reasons it has been supposed that the general maritime law gives to a materialman no lien upon a ship except in case of necessity in a foreign port. But, notwithstanding the provisions of the various continental maritime codes already referred to, there are weighty considerations which suggest that a privilege or lien or right to proceed directly against the ship was given to the materialman, which attached in a domestic port and apart from any supposed necessity. Thus the Law of Sweden, Pard. III, 169, provided that one who lent money for the construction or maintenance of a ship might take a receipt, called a "bilbref," formally acknowledged, which gave him a lien on the ship superior even to that of a bottomry bond. See the similar provision in Denmark, Pard. III, 301. See the Maritime Ordonnance of Arragon of 1340, Pard. VI, 359, which gave a lien to the materialman and laborer in the construction of a ship which had not yet sailed. See Id. 389. See, also, as to the lien of workingmen in building a vessel, Consolato, Pard. II, 59, VI, 389, and see, generally, Desjardins, I, 214-219. This appears most

plainly from the French Ordonnance de la Marine, book 1, tit. 14, arts. 16, 17, Pard. IV, 345. The prior history of these provisions is given summarily in Valroger I, 79 et seq. See, also, Desj. I, 206. By this code creditors for money lent during the last voyage have priority of payment after the seamen. After them come creditors who have lent money for repairs and supplies furnished to the ship before its sailing. If the ship has not made a voyage, the workmen and the materialmen are to be paid first of all. From this it appears that all materialmen have a right against the ship superior to that of the general creditors of the owner, though the materialman in a home port is postponed to the materialman abroad. unlikely that these privileges or liens thus allowed by the Ordonnance were created by it. Probably the provisions cited expressed, perhaps with some slight change, the rule of law already existing. The French code adopted substantially these provisions of the Ordonnance, but provided that the claims of the several classes of creditors should be evidenced with certain formalities. (This provision did not apply to claims of the workmen themselves.) In adopting the French code many continental countries have adopted substantially the same provisions. See Desjardins I, p. 258 et seq., 277. Upon the whole, we have considerable evidence that the continental nations, or many of them, early recognized a lien arising from the furnishing of repairs or supplies, even in the home port. There seems an increasing tendency, however, to require that the debt thus creating the lien should be evidenced in some formal manner.

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It remains to consider the law of England. The English jurisprudence relating to maritime affairs is so peculiar, and its peculiarities have affected so considerably the law of maritime liens in this country, that some general remarks must be made concerning it, even at the risk of repeating the commonplaces of admiralty. The law administered by the English court of admiralty has always been in theory a complete system for the administration of justice in maritime affairs. Alone, for the most part, the court of admiralty has had the administration of this system, and that it interpreted and applied the system correctly nobody doubted. But there was grave and long-continued dispute between the court of admiralty and the other courts concerning the boundaries which separated their several jurisdictions. Each sought to restrain the other from encroachment. Sometimes the court of admiralty punished for contempt those who in cases deemed to be maritime sought relief elsewhere. Gorham v. Granger, Select Pleas in the Court of Admiralty II, p. lxviii; Corsini v. Hangar, Id. p. lxxi. Sometimes it inhibited another court directly. Sewell v. Norman, Sel. Pl. I, 75; Wellys v. Felton, Id. 78. Sometimes it did both. Legge v. More, Id. 83. On the other hand, it appears that the jurisdiction of the court of admiralty was early restrained by writs of certiorari (Sewell v. Norman, Sel. Pl. I, p. lxxvi); of supersedeas (Chapilion v. Bird, Id. I, p. lxxiv, 29; Struce v. Sleighter, Id. I, lxxv, 45. See II, p. xli); of mandamus, perhaps (see Bremer v. Porter, I, lxxv, 59); and of prohibition. After the beginning of the seventeenth century this restraint was commonly operated by a writ of prohibition, issued by the court of king's bench,

while the court of admiralty ceased to inhibit proceedings elsewhere, and was generally put upon the defensive. In some cases the privy council had intervened, and had restrained both sides, by acting as arbiter between them. Sel. Pl. II, 113. The courts of chancery and common law did not interfere with the court of admiralty because the latter was deemed to err in substantive law, but because it and its system of law were, by acts of parliament, excluded from the cognizance of many-even of most-maritime matters, which, by virtue of these acts of parliament, were held cognizable only by the courts and the system of common law. The question so much debated, how far the courts of common law were within their rights in issuing these prohibitions, need not be discussed here. From the seventeenth century onwards they could and did impose their will upon the courts of admiralty. Where the jurisdiction of the admiralty was admitted, its system of law was admitted to govern as matter of course, and the courts of common law in no wise interfered. Thus, in Tremoulin v. Sands (1697) Comb. 462, Lord Holt said:

"It does not appear here in the libel that the admiralty court hath any jurisdiction, and, wherever they have not original jurisdiction of the cause, tho' there arise a question in it that is proper for their conusance, yet that alters not nor takes away the power of the common law; but if they have jurisdiction of the original, tho' a question ariseth proper for the common law, yet they shall try that; and after sentence, if it appear that the matter contain'd in the libel is triable at common law, we will grant a prohibition."

See Greenway v. Barker, Godb. 260.

Indeed, had a court of admiralty attempted to apply to a case before it any system of law but its own, it would have erred admittedly. About 1400 the Commons asked the admiral to change this system, and to govern himself thereafter by the common law; but the request was refused. See Sel. Pl. II, p. xlii; 1 Rolle, Abr. 528. A court of equity restrains the enforcement in a court of common law of the penalty of a bond, and this practice has analogies to the treatment. of the admiralty court by the king's bench. Even the granting of a prohibition to the admiralty was not always deemed to be strictissimi juris, and equitable considerations were sometimes admitted to affect the action of the court of common law. Thus, in Martin v. Green (1665) 1 Keb. 730, a prohibition was sought against a libel for a collision caused by the tide. It was urged that an action on the case was the only remedy, but Chief Justice Hyde doubted, because the owners of the offending vessel were not known, and so there was no available remedy at law. The other judges said this fact did not give jurisdiction, but finally the prohibition was granted only upon a disclosure of the owner's name, made in order that the libelant might have an effective remedy at law. See Brown v. Franklyn, Carth. 474; Anon., 12 Rep. 77. But the analogy between injunctions and prohibitions is not complete. No one disputed the jurisdiction of the common-law court to give judgment for the penalty. The prohibition by injunction applied only to the party plaintiff. On the other hand, the writ of prohibition was addressed directly to the admiralty court. Not being deprived of any part of its formal jurisdiction, the court of common law was not deemed to be aggrieved

by the practical restraint imposed upon its authority by the chancellor. The court of admiralty, on the other hand, being deprived directly of what it deemed its proper jurisdiction, protested for century after century; at times more or less successfully, at times with some popular support. It never abandoned its claim to the disputed jurisdiction, and actually entertained jurisdiction in numberless cases wherein it would have been prohibited had the respondent applied for a prohibition. For this reason the prohibitions issued by the common-law courts do not show the extent of the actual jurisdiction of the admiralty court, while the unprohibited suits in the court of admiralty do not show the limits imposed upon that court's jurisdiction by the courts of common law. This fact must be borne in mind throughout our examination, and also that a maritime lien may be denied operation for two different reasons: (a) Because it is not given by the admiralty law; and (b) because, though admitted to be given by the admiralty law, yet, in the case supposed, the admiralty law is not permitted to operate.

Let us next consider what was the law regarding the lien of a materialman according to that system of maritime law administered by the English court of admiralty. This is not the same thing as the right which the materialman was actually permitted to enforce in England, for the courts of common law often prohibited the court of admiralty in this respect. What was the right of the materialman according to that ideally existent, but often unenforceable, system which has been already mentioned? The printed material for the study of this system is still scanty, and ten years ago was almost wholly wanting. The publication by the Selden Society in 1892 and 1897 of two volumes of Select Pleas of the Court of Admiralty, edited by Mr. Marsden, has let in a flood of light upon questions much disputed in courts of England and America. Instead of conjecturing what may have been the practice and substantial jurisprudence of the English court of admiralty in the sixteenth century, we now know for certain by the perusal of decided cases. Hence it follows that the ordinary student of to-day may set right in some matters of history the great judges of the past. Even Mr. Marsden's selections leave us still ignorant of much that we should like to know. Outside his two volumes, we are confined to (1) statements made in later reported cases by English admiralty judges, who inherited the traditions of the admiralty, and to some extent may have had knowledge of its unprinted records; (2) casual, and often unauthorized, expressions found in publications of various sorts; and (3) reports of cases in the courts of common law where prohibitions to the court of admiralty were sought. The earliest regular English admiralty reports date from the latter part of the eighteenth century, when the courts of common law had triumphed, and the defeated court of admiralty had begun to forget how extensive was the jurisdiction it once had claimed.

To ascertain the law of maritime lien as applied by the English courts of admiralty, it is necessary first to consider briefly the nature of their process, and especially that of their process so-called "in rem." Learned judges have said that proceedings in rem in the

English court of admiralty were introduced later than proceedings in personam; that originally they were only auxiliary to the latter, had only to constrain the appearance of the real party to be charged. They are, it has been said, to be taken as analogous to proceedings by foreign attachment. See The Johann Friederich, 1 W. Rob. Adm. 37; The Merchant, Abb. Adm. 1, Fed. Cas. No. 9,434; The Dundee, 1 Hagg. Adm. 110; The City of Norwalk (D. C.) 55 Fed. 98; The Dictator [1892] Prob. Div. 304; The Gemma [1899] Prob. Div. 285. With this agrees to a considerable extent Clerke's Praxis, written in the latter part of the sixteenth century, and Zouch's Admiralty. Early cases give some support to this theory. Thus, anchors, etc., were arrested in a suit to enforce a bond to carry out a charter party, without suggestion that they were connected with the ship chartered. Fuller v. Thorne, Sel. Pl. I, 38. See, also, The John of Alen, Id. 53; Crockye v. Goods of Cruse, Id. II, 81. Seamen were permitted to enforce a claim for wages earned in one vessel against another vessel of the same owner. Thorneton v. The Elizabeth Bonaventure, Id. 131. Mr. Marsden observes generally: "The fact that goods and ships that had no connection with the cause of action, except as belonging to the defendant, were subject to arrest, points to the conclusion that arrest was mere procedure, and that its only object was to obtain security that judgment should be satisfied." Id. I, p. lxxii. Even where the vessel had been expressly hypothecated, suit was brought against both the ship and the owner, and the decree might go against the owner personally. Draper v. The Black Greyhound, Id. II, 155; Draper v. The Fortune, Id. 156. See Gale v. Brown, Id. I, 55; Harrison v. Stubbarde, Id. 62. Apparently the proceedings in these cases were substantially like those in which the admiralty took jurisdiction to collect any debt by the attachment of any goods on the Thames. Warner v. Wheler, Id. I, 117.

But the analogy thus stated between the process of arrest in the admiralty and the process of foreign attachment is not complete. As was said by Sir John Jervis in The Bold Buccleugh, 7 Moore, P. C. 267:

"The foreign attachment is founded upon a plaint against the principal debtor, and must be returned nihil before any step can be taken against the garnishee. The proceedings in rem, whether for wages, salvage, collision, or on bottomry, go against the ship in the first instance. In the former case the proceedings are in personam; in the latter they are in rem. The attachment, like a common-law distringas, is merely for the purpose of compelling an appearance; and, if the defendant appears within a year and a day, even after judgment and execution against the garnishee, and puts in bail, the attachment is at an end. If the owners do not appear to the warrant arresting the ship, the proceedings go on without reference to their default, and the decree is confined exclusively to the vessel. Many other distinctions will be found upon reference to the notes to Turbill's Case, 1 Saund. 67, note 1. It is not correct, therefore, to say, that the proceeding in rem is in all respects analogous to the proceeding by foreign attachment, and that the former is merely to compel an appearance, because the latter is undoubtedly for that purpose only."

When the cases reported in the Select Pleas are examined individually, it appears that in some of them the arrest of the vessel was something more than a process analogous to foreign attachment. This is true where the office of the admiral was promoted against

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