lien upon the ship, because, if it did, he was entitled to payment according to the prayer of his bill: Lord Chancellor Hardwicke said, " Certainly by the maritime law "the master has power to hypothecate both ship and "cargo for repairs, &c. during the voyage; which arises from his authority as master, and the necessity "thereof during the voyage, without which both ship "and cargo would perish; therefore both that, and the "law of this country, admit such a power. But it is "different, where the ship is in port infra corpus com"itatus, and the contract for repairs, &c. made on land

in England; then the rule of that law must prevail. "I know no case where the repairs, &c. whether it was " by part-owners, or sole owner, master or husbands, "have been held a charge or lien on the body of the แ ship. Watkinson v. Barnardiston, 2 Wms. 367. being <C a direct authority to the contrary; and if the ship in "the river infra corpus comitatus should be proceeded แ against and stopped for such debt, the courts of law "would issue a prohibition, the contract being on land "and not arising from necessity." And his Lordship dismissed the bill so far as it sought relief against the body of the ship, or the money arising by the sale thereof: but, expressing a doubt, as to the personal charge

upon the owners in such a case, directed a trial [140] at law upon that question (u), as I have already mentioned (w).

12. And in another case which happened very soon afterwards, where a person having repaired a ship here, and delivered it to his employer, who was become a bankrupt, had obtained possession of the money, for which the ship had been sold, and insisted before Lord (u) Buxton v. Snee, 1 Ves. 154. (w) Ante, page 127. No. 1748.

Chancellor Hardwicke, that he had a specific lien on the ship for the repairs, and was not obliged to prove his demand as a debt under the commission; the Lord Chancellor said, that although the Law of Holland gave a person, who repaired a house, or ship, a specific lien, there was no such law in England, and that he must account to the assignees of the bankrupt for the money in his hands arising from the sale of the ship, and come in under the commission for the debt due to him for repairs; and his Lordship made an order accordingly (x).

13. And in a case (y), that came before the Court of King's Bench very soon after the determination of the particular case, in which Lord Mansfield is reported to have delivered the doctrine before quoted; wherein the master of a ship, of which the owner was become bankrupt, insisted upon a right to retain the ship from the assignees of the bankrupt, as a security both for his own wages, and for the expence of repairs, [141] stores, and provisions ordered by himself, and for which he was liable to pay, and after a demand made of the ship by the assignees had actually paid, Lord Mansfield said, “As to the stores and repairs, it is a strong answer to the claim, that, when the demand

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was made by the assignees, the master had not paid. "But if there was any lien originally, it was in the carpen"ter: the master could not by paying him be in a bet"ter situation than his, and he had parted with the pos"session, so that he had given up his lien, if he ever "had one. The other creditors had none. Work done "for a ship in England is supposed to be on the person"al credit of the employer. In foreign parts the mas༦ ter may hypothecate the ship."

(x) Ex parte Shank & others, 1 Atkins, 234. August 1758.

(y) Wilkins v. Carmichael, Hil. T. 19 Geo. 3 Doug. 101.

14. And LASTLY, in a case (z), which was brought by appeal from the Court of Session in Scotland to the British House of Lords, the Lords determined that the persons, who had repaired and furnished a ship in Scotland, the place of the owner's residence, had no claim upon the value of the ship itself for the payment of their demands. The owners of the ship had become bankrupts, and several persons, who had repaired and furnished it at different periods, instituted a suit against

the trustee of the bankrupt's estate, claiming [142] payment out of the proceeds of the sale of the ship in exclusion of the other creditors of the bankrupt, and insisting that all of them, or at least those, whose demands arose since the last voyage made by the ship, and in order to fit her out for another voyage, had by the law of Scotland, and of other European nations, England only excepted, a right of hypothecation or preference for the amount of their respective demands. The cause was heard and re-heard several times in Scotland, and different decisions pronounced there; some in favour of the claim, and others against it. The ultimate decision in Scotland was against the claim; founded principally, as it seems upon a desire to render the law of Scotland conformable to the law of England on this subject (a); for such a claim had been frequently allowed in the Courts of Scotland during a period of four-scoreyears preceding this cause; and the decision was affirmed by the House of Lords on the appeal.

(z) Wood & others v. Hamilton, decided in Dom. Proc. 15th June, 1789. The printed papers are drawn up with great care and learning on both sides, and contain much valuable information.

(a) In the case of Jamieson & others v. Laurie, cited post, part 3.

chap. 1. sect. 10. this is expressly said to have been the ground of the decision. Dr. Wynne's opiaion as to the English law, was taken in the course of the proceedings for the information of the Scatch Judges.

I have detailed these cases with the more particularity, in order to prevent any mistake from the general doctrine delivered by Lord Mansfield in the case of Rich v Coe, which has sometimes been cited as an au

thority up to the full extent of the terms, in which [143] it was expressed (1).

14. b.

There is however a late determination of the Court of Admiralty, that should be mentioned in this place. An American ship was supplied in the river Thames, by certain merchants of London, with stores and ammunition for a voyage to Venice, and, having performed the voyage and returned to London, was sold under a decree of the Court in a suit instituted by the mariners for their wages. After payment of the wages, a surplus remained in the registry of the Court.

The

(1) It does not appear that it has ever been held in the courts of the U. S., that shipwrights and furnishers of supplies to ships, while in the ports of the U. S., have not a lien on the ships, or right to admiralty process to recover the amounts due them. The question has not to my knowledge arisen in the Supreme Court of the U. S., but in the District Court of Maryland, after a very learned discussion, Winchester J. decided that a shipwright by the maritime law has a lien on the ship for repairs done and materials found by him, while the ship is in a port of the U. S. Stevens v. The Ship Sandwich, 1 Peters. Rep. 233. note. The same opinion was given by Peters J. in Pennsylvania, in Gardner, &c. v. The ship New Jersey, 1 Peters. Rep. 223. See also 1 Roll. Abr. 533. l. 15. Cro. Car. 296.

The legislature of New York have expressly provided that shipwrights, material men, and suppliers of ships, shall have a lien on the ships for the amount of their debts, where the ships are owned by any persons not resident within the state. Act, 10. August, 1798.

master had returned to America and died; and the owner was insolvent there. The merchants applied to the Court for payment of their demand out of this surplus and in support of their application a distinction was taken between English and foreign ships. The learned Judge of the Court, after having had the cases looked into, said he found it had continued to be the practice of the Court to allow persons of this description to sue against proceeds remaining in the registry, notwithstanding prohibitions had been obtained on original suits instituted by them; and he referred to a particular case of the ship Adventure in the year 1763: and decreed that payment should be made according to the application (b). (1)

It is observable that there was not in this case any

person representing the owner to object to the [144] application. It appears by the report that the proceeds had been previously attached on the part of a creditor, and that the attachment had been removed before the decree, but no particulars relating to it are mentioned.

In the case of the same ship, a person who had acted as agent and broker to the ship in this country, afterwards applied by petition for payment of the balance of his account; but the petition was rejected, by reason of the general and unsettled nature of the account, which was thought more fit for the Court of Chancery, where alone cross demands could be investigated.

(b) The JOHN, Jackson, 3 Rob. A. R. 288.

(1) A similar decision in principle was made in Gardner, &c. v. The Ship New Jersey above cited.