Taylor et al. v. Carryl.

charged the vessel from them by paying the holders, or, by leave of the admiralty court, they could have paid into its registry enough to satisfy them, being entitled to receive back any surplus. In this way they could have acquired a perfect title; but they pursued neither course, nor did they bring the matter in any form before the District Court of the United States. The maritime liens therefore continued attached to the vessel after the sheriff's sale, and until sold by the marshal, when Mr. Taylor became the purchaser.

If the doctrines laid down in this case by the Supreme Court of Pennsylvania, and on which the judgment of that court can alone be sustained, are to be adopted as the maritime and admiralty law of the United States, the privileged lien, heretofore supposed to belong to mariners, is in effect taken away. It will be in the power of a master or owner of a vessel, in every case, to prevent seamen from availing themselves of their lien.

This may be effected by proeuring a constable to seize the vessel, and hold her in custody until she is about to sail, and then release her. It only requires a fi. fa. or attachment to issue on a judgment confessed before a justice of the peace for a small amount, to a real or pretended creditor; because, according to the doctrine of the Supreme Court of Pennsylvania, there is no peculiar potency in admiralty process in rem, against ships-"in substance, the proceeding by a justice of the peace against a stray cow is exactly equivalent." (Record, 72; Taylor v. Carryl, 12 Harris, 261.) By the seizure of the ship, therefore, whether by sheriff or constable, the whole custody of her is in the State tribunal, (Record, 61, 77,) and any action or decree afterwards by the admiralty, in order to enforce the mariners' lien against the ship, would be in relation to a subject over which it had no control, and would consequently be void." (Record, 61; Taylor v. Carryl, 12 Harris Rep., 269.)

Judge Wells, in his opinion delivered in the case of the Golden Gate, (Newberry's Adm. Rep., 296, 308; 5 Am. Law Reg., 155, 158,) points out other inconveniences from allowing to the process of justices of the peace, &c., the force of proceedings in rem. "If," says he, "there is an average of fifty counties to each State, and twenty justices of the peace to each county, we should then have in the United States thirtyone thousand courts of admiralty and maritime jurisdiction, to say nothing of the courts of record," &c. (5 Am. Law Reg., 158, 159.)

The Supreme Court of Pennsylvania have decided that, by the law of that State, a seaman may come into her courts and

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enforce his maritime lien for wages against the proceeds of a vessel sold by the sheriff. Although this be a doctrine unknown to the old common law, yet there would be no reason to complain of it, if that court had not gone farther, and decided that the seaman's only remedy in such a case was in the State court, and that he had no longer a right to enforce his lien in the admiralty. The State court undertook to define the limits of the jurisdiction of the admiralty courts; and if it has erred in this, it is the right and duty of the Supreme Court of the United States to correct the error, and whilst asserting the legitimate jurisdiction of the admiralty, to administer the maritime law as it has been recognised and established by the Constitution and laws of the United States. It is an important function of this court to defend the lawful jurisdiction of the admiralty, and the just efficacy of its process against judicial as well as legislative encroachment, among other reasons, because on these mainly depend the rights of seamen and others having maritime liens.

In this case, the Supreme Court of the United States is not called on to alter in any respect the municipal law of Pennsylvania, but simply to declare that the additional remedy allowed to seamen by that law does not oust the admiralty of its exclusive jurisdiction, if the seamen prefer a recourse to it, rather than to the remedies provided by the State law.

A reversal, therefore, of the judgment of the Supreme Court of Pennsylvania will involve no victory of Federal over State authority and power. It will concede to the admiralty and maritime jurisdiction of the Federal courts nothing but what the stanchest friend of State rights and the most jealous adversary of Federal encroachment may safely concede, because imperatively required for the safety and protection of a class of men whose rights are specially protected by the commercial codes of every civilized nation, and by none more carefully than by that of the United States; rights, in the maintenance of which the Commonwealth of Pennsylvania and her people are as much interested as the people of any of the other States, for the sake of those of her citizens (and they are very numerous) who have devoted themselves to the sea.

The third point of the counsel for the defendant was the following:

Third Point. The judgment below on the merits of the controversy determined by it is free from error.

I. The plaintiff below, by his purchase at the sheriff's sale, acquired a good title to the barque "Royal Saxon."

1. By the process of foreign attachment, and the possession

Taylor et al. v. Carryl.

of the sheriff under that process, the barque was in the custody of the law, to abide the result of the suit in which process issued. (Act Penn., June 13, 1856, secs. 48, 50; same, March 20, 1845, sec. 2; Morgan v. Whatmaugh, 5 What., 125; Serg. For. Att., 1, 23.)

2. Its sale, pending the suit, as perishable property, was regular, and by authority of a competent court having jurisdiction.

3. The judicial sale of property as perishable is, in the nature of the procedure, and from the same policy and necessity which occasion the sale, a conversion or transmutation of the thing itself, overriding every question of title and lien.

(1.) The right and power of such sale are not supported upon any notion or determination of title, but wholly upon the condition of the thing sold.

(2.) The motive and effect of the sale are for the benefit of the real title and of every valid lien, to save from perishing to the owner and the lienor the subject of his property or lien.

(3.) To say the court has this right to sell the thing in its custody, and exercises this right, and yet the buyer at such sale does not take the thing sold, but only the right, title, or interest, of some particular person or persons, is insensible, and subversive of the whole doctrine of sales by necessity. (Foster v. Cockburn, Sir Thomas Parker's Exch. R., 70; Jennings v. Carson, 4 Cranch, 26, 27; Grant v. McLaughlin, 4 Johns. R., 34; The Tilton, 5 Mas., 481, 482.)

(4.) The remedy of any party whose property has been, without right as against him, brought into this peril of litigation which has necessitated, and so justified, its valid sale, is by action against the suitor or the officer who has wrongfully subjected it to this conversion, or by claiming upon the proceeds of the sale, at his election.

II. The defendant below, by his purchase at the marshal's sale, acquired no title to the barque.

1. When the attachment and monition issued in the admiralty suit, the barque was in the custody of the sheriff of the county of Philadelphia, and so continued until after the order for its sale as perishable.

The marshal, therefore, never had custody, nor the District Court possession, of the barque, to support any jurisdiction to sell as perishable. (The Robert Fulton, 1 Paine C. C. R., 625, 626; Hagan v. Lucas, 10 Peters, 403; Jennings v. Carson, 4 Cranch, 26, 27.)

2. The effect of a sale in admiralty, pending a suit, of property as perishable, is not at all strengthened or qualified by the nature of the claim or lien prosecuted in the suit.

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Whether the cause of action be of one degree of privilege or priority or another, the efficacy of the writ to the marshal is the same, the custody of the court is the same, and the grounds and effect of the special sale of the property in custody are the

same.

So, too, whether the cause of action fail to be supported in the final decree is immaterial; the jurisdiction to sell, and the title conveyed, depending on the court's possession of the suit, and of the perishable property, and not at all on the event of the suit. (Harmer v. Bell, the case of the Bold Buccleugh in Privy Council, 22 Eng. L. and E.)

3. The title of the defendant below, then, derives no special validity from the peculiar privilege among admiralty liens accorded to wages.

The whole question is, between the two sales by the two courts, as to which passed the title; if the cause of action in the Supreme Court of Pennsylvania had been for seamen's wages, and the cause of action in the District Court had been on a charter party, or bill of lading, the question of the effect of the two sales would rest on the same considerations as under the actual facts in the case.

III. The sale by the sheriff gave to the purchaser a title discharged of all liens, which thereafter attached only to the fund produced by the sale. This effect follows every judicial sale of the res itself, (made by a court having jurisdiction,) and the claim of seamen's wages has no exemption from this consequence.

1. The nature of the lien of seamen's wages subjects it to this consequence.

It is neither a jus in re nor a jus ad rem; it gives no right of possession, and is not displaced by change of possession-it is a right of action to be enforced by judicial procedure, and with (among others) the special remedy of being satisfied, by means of such procedure, out of the ship. (The Nancy, 1 Paine C. C. R., 184; The Brig Nestor, 1 Sumn., 80; Ex parte Foster, 2 Story, 144; Harmer v. Bell, 22 Eng. L. and E. R., 72.)

Whatever prevents the judicial process (from whose vigor alone the seamen's right of action is converted into a right of possession or dominion over the ship) from reaching the ship, postpones or defeats, as the case may be, the enforcement of his right of action against the ship.

If the ship be locally without the jurisdiction of the process, this postpones or defeats the remedy.

If the ship, though locally within the jurisdiction of the process, be withdrawn from its operation by a previous subjection to the process of another jurisdiction, this postpones or defeats

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the remedy. (The Robert Fulton, ut supra; Hagan v. Lucas, same.)

A conversion of the ship into proceeds by a lawful exercise of dominion over it, by paramount authority, or through judicial sentence, defeats the remedy against the ship, which, as it were, no longer exists, in specie, to meet the remedy.

The familiar rule, that seamen's claims attach for their satisfaction to the proceeds of such sales, proves that the ship is discharged from their claims; otherwise the seamen would take the purchase-money, produced by other interests than theirs, to discharge claims still resting on the ship, and not included in the purchase-money. (Presb. Corp. v. Wallace, 3 Rawle, 150; Sheppard v. Taylor, 5 Pet., 675; Brown v. Full, 2 Sumn., 441; Trump v. Ship Thomas, Bee's R., 86; The St. Jago de Cuba, 9 Wheat., 414, 419.)

Mr. Justice CAMPBELL delivered the opinion of the court. This cause comes before this court by writ of error to the Supreme Court of Pennsylvania, under the twenty-fifth section of the judiciary act of the 24th September, 1789.

The defendants (Ward & Co.) instituted an action of replevin in the Supreme Court of Pennsylvania, for the barque Royal Saxon.

Upon the trial of the cause at nisi prius, it appeared that the barque arrived at the port of Philadelphia in October, 1847, on a trading voyage, and was the property of Robert McIntyre, of Londonderry, in Ireland. In November, 1847, she was seized by the sheriff of Philadelphia county, under a writ of foreign attachment that was issued against her owner and another, at the suit of McGee & Co., of New Orleans, from the Supreme Court; and at the same time her captain was summoned as a garnishee. On the 15th January, 1848, those creditors commenced proceedings in the Supreme Court to obtain an order of sale, because the barque was of a chargeable and perishable nature, suffering deterioration from exposure to the weather, and incurring expenses of wharfage, custody fees, &c., &c. This application was opposed by the captain of the barque, but was allowed by the court on the 29th of January, 1848. The vessel was duly sold by the sheriff' under this order, the 9th February, 1848, to the plaintiffs in the replevin, Ward & Co.

On the 21st January, 1848, while the writs of attachment were operative, and a motion for the sale of the barque was pending in the Supreme Court, the seamen on board the barque filed their libel in the District Court of the United States for the eastern district of Pennsylvania, sitting in admiralty, for the balances of wages due to them, respectively, up to that date,