, 1859-04-22

place, would also seem to be the fact from
the testimony; aud If the testimony oI
WadswOrth was incorrect, the contrary
could have been easily shown-but in auy
event the residence Of Mensesheimer has
bsen satisfactorily established We are
therefore forced to the conclusion that the
steamship Constitution was essentially do.
mestie vessel during the time when these
liabilities were incurred. .......
That there can be no lien set up by ma.
terial meH; or for repairs or supplies in the
case Of domestic vessel in the home port,
or the port in which one or more of the
owners reside, except the common law lien,
has been SO conclusively settled by judicial
decree iu the courts Of the United States
that it is no longer nooted question.
The authorities upon this point are numer-
Gus, aud it is only necessary to refer to the
following:-Jane VS.. Brig, Presideat, 4 w.
.C, G. r., 453; the Nestor, Sumner, 10;
the Robert Fulton, Paine, 620.
That this rule may be qualified by par
tieular circumstances, such as assuming or
representing the ship to ben foreign ship
the owner standing by with sealed lips,
when he has reason to believe the material
man and Others are looking to the ship for
remuneration; or the right as against the
owner to come into the admiralty upon a
surplus fund, are qualifications which at
this stage of the case it is not necessary
for Us to discuss
The principles Of the common law are
adverse to liens, aud more especially liens
Of secret and intangible character. We
do not know that they have ever been beld
to extend beyond the right OF the party in
possession of the res to retain the same un-
til his claim, is satisfied A surrender ot
the possession bus ever been held q relin-
quishmept Of thelien. The lien at the com.
mon Law. is tangible, in admiralty, secret
and Intangible iu its character; and il is
only for the benefit Of commerce that n lib
cral operation has been given to the mari
time lien. In this case the appellants claim
to recover not only under the general prip-
ciples Of admiralty law, but that they are
entitled to the fund by virtue of q hen girel
to them, by the local law Of Caiifor.
nia; aud that where liens Of mari
time character are given by The local law,
they will On application to the courts ol
admiralty be recognized and enforced in :
proceeding In rem. .I.......
Where the lien is given BY the local Law
for causes partaki1g Of q maritime ehafac
ter although not constituting actual caasei
Of maritime lien, which would be enforced
under the general laws Of admiralty. The
District Courts Of the United States, sitting
in Admiralty, have frequently taken coghi.
Eanee Of, and enforced by admiralty pro
cess, the lien given by the local law7-and
this would seem to be iu consequence with
the rules establish by the Supreme Court,
vide Rule XII, Practice Of the United
States Courts by Law. page 642: The
Gen Smith Wheaton, 43S; Peyronx
u.s. Howard, I Peters, 3z4; the Jerusalem,
2 Gall, 345; the Fulton, | Paine, go; q
new Brig, Gilpin, 413
In the application Of the local law Of
California, two questions are presented for
our consideration. ga asnoqd ieal rss
lst. Does the LEGAL law Of California
give q lien upon q domestic vessel, in the
ports Of that state, fof Dsaierials, meaEani-
cal services on supplies fufnished q ship an
dergoing repairs In the home port, or port
where the owner resides, on the applica-
ton Of the MASTERY ,e..s
ID. The extra territorial effect OF opera
tion Of a localslnR. AeA
In the discussion Of the first proposition
il is necessary that we should examine the
legislation Of California, for BY the terms
Of the statute and the general policy Of
the law must this question be determined.
The local law Of California woods Di-
gest, article 1861, section 3l7, page 20f),
provides that all steamers, vessels and boats
shall be liable for supplies, furnished for
their use at the request Of their respective
owners, masters, agents or consignees for
services rendered on board ut the request
Of, or on contract with their respective
owners, masters, agents OF consignees for
material furnished in their construction, or
repair or equipment; for their wharfage
and anchorage within the state for non
performance or malperformance Of any eou-
tract for the transportation Of persoas or
property made by their respective owners.
masters, agents or consignees for injuries
committed by them to persons OF property,
provided that the wages Of mariners, boat
men and others employed ID the service Of
such steamers, vessels and boats shall hare
preference Of all other demands.
Subsequent sections Of the act provides
that proceedings may be directed agdi'lsl
ne Uessel, By AamS The proceeding mus
be by summons, in conjunction with which
or subsequently,, au attachment may issue,
and the vessel, tackle aud furniture be held
as security for any judgment which may
be obtained The summons TO be served
on master, mate, or any person having
charge Of the same. In case the attach
ment has not been discharged and q judg
ment has been recovered, the sheriff is L
sell the vessel, tackle and furniture, ol
such iaiereSt therein as may be necessary
aud apply the proceeds Of the sale, LIST, iC
the claims Of mariners, boatmen and othel
persons employed in the service Of the YES
sci then to the satisfaction Of the jndg