plaintiffs were entitled to the possession of the mortgaged premises, whether there had been any breach of the condition or not. The issue, therefore, was an immaterial one. It did not determine the question on which the right to maintain the action depended.

The right of a mortgagee, or of any one claiming under him, to recover possession of the mortgaged premises, even before a breach of the condition of the mortgage, when there is no agreement to the contrary, is affirmed by Rev. St. c 90, § 2. No agreement to the contrary being shown in this case, the plaintiff's right to maintain their action for possession cannot be defeated by showing that no breach of the mortgage had taken place when the action had commenced. The fact itself is therefore irrelevant, and the issue immaterial. No use can be made of the fact, whether found for the plaintiffs or the defendant. And the right of a mortgagee, or of any one claiming under him, to bring his action for possession of the mortgaged premises, without naming the mortgage in his writ, is affirmed by Rev. St. c. 90, § 8. And if either party wishes for a conditional judgment, he must move for it. But the motion must be addressed to and heard by the court; it is not a matter for the jury. Section 9. Such being the law, we think the verdict in this case must be set aside. It is irregular in form, and irrelevant in matter, and no use can be made of it in determining what the judgment in the case shall be; and to sustain it would establish a bad precedent. Motion sustained. Verdict set aside, and a new trial granted.

PETERS, C. J., and DANFORTH, LIBBEY, EMERY, and HASKELL, JJ., concurred.

(80 Me. 461)

DAVIS C. WALTON et al.1

(Supreme Judicial Court of Maine. July 25, 1888.)

FRAUDULENT CONVEYANCES-RIGHTS OF CREDITORS JUDGMENT SATISFACTION.

A bill in equity, brought by one claiming relief as a creditor, cannot be maintained, when it appears that, prior to the filing of the bill, the complainant's debt had become merged in a judgment, and the execution issued thereon had been satisfied in full by a sale to complainant of the debtor's interest in real estate.

On appeal from supreme judicial court, Washington county.

Bill in equity, brought by the complainant as an alleged judgment creditor of Paul Walton, to recover the amount of his judgment out of certain real estate alleged to have been fraudulently conveyed by said Paul Walton to his son, the other respondent. The presiding judge dismissed the bill, and the complainant filed an appeal.

A. McNichol and B. Rogers, for complainant. E. E. Livermore, for respondents.

WALTON, J. We think the dismissal of the plaintiff's bill was right. He claims relief as a creditor. The proof is that at the time of the filing of his bill he had ceased to be a creditor. His debt had become merged in a judgment, and an execution which had been issued upon the judgment had been satisfied in full by a sale of the debtor's interest in real estate. The plaintiff was the purchaser, and if the debtor's interest was not as great or as valuable as the plaintiff supposed, his remedy, if any, must be as a purchaser, and not as a creditor. He has ceased to be a creditor. Such was the opinion of the justice by whom the case was heard at nisi prius; and upon this ground he dismissed the bill, with costs. We think the dismissal was right. Decree dismissing the bill with costs affirmed.

PETERS, C. J., and DANFORTH, LIBBEY, EMERY, and HASKELL, JJ., concurred.

1Reported by Leslie C. Cornish, Esq., of the Augusta bar.

(80 Me. 512)

WARREN . KELLEY.

(Supreme Judicial Court of Maine. August 9, 1888.)

1. MARITIME LIENS-JURISDICTION-STATE LAWS-CONSTITUTIONALITY.

Rev. St. Me. c. 91, § 8, which provides that "whoever furnishes labor or materials for a vessel after it is launched, or for its repair, has a lien on it therefor, to be enforced by attachment, " etc., in so far as it authorizes proceedings in rem in the state courts for the enforcement of a lien on domestic or foreign sea-going vessels, is in conflict with the U. S. Const. art. 3, § 2, and the acts of congress conferring exclusive admiralty jurisdiction on the United States district court.

2. ATTACHMENT-UNDER VOID PROCESS-LIABILITY OF OFFICER.

The law being unconstitutional, a process of attachment issued under it is void, and furnishes no protection to the officer executing it.

8. SAME-MEASURE OF DAMAGES.

In an action of trespass by a mortgagee of the vessel having a right to its possession against the officer executing the void process, the measure of damages is the value of the vessel at the time of the conversion, with interest thereon to the time of the verdict.

On motion for new trial from supreme judicial court, Hancock county. Trespass against an attaching officer. Verdict was rendered in favor of plaintiff for $2,443.73, and the defendant filed a motion for new trial.

A. P. Wiswell, for plaintiff. William L. Putnam and Joseph M. Trott, for defendant.

FOSTER, J. Labor and materials were furnished for repairing the schooner Corporal Trim. Payment for the same was refused, and proceedings in rem were instituted to enforce a lien provided by statute against the vessel for which such labor and materials had been furnished. Process for the enforcement of the lien was placed in the hands of the defendant, as sheriff of the county of Lincoln, and the vessel was seized and attached by him. This suit is trespass against the officer by the mortgagee of said vessel. A verdict of $2,443.73 has been rendered against the defendant, and the case comes before this court on exceptions and motion.

The question presented for consideration on the exceptions involves the constitutionality of a portion of section 8, c. 91, Rev. St., and other provisions pertaining to that portion, which in terms provide for the enforcement of liens for repairs upon vessels. That portion of section 8 is as follows: "* * * And whoever furnishes labor or materials for a vessel after it is launched, or for its repair, has a lien on it therefor, to be enforced by attachment within four days after the work is completed. * * *"" In addition thereto subsequent sections provide for enforcing this as well as other liens named in the eighth section, specifying the form of the process in rem against the vessel itselt substantially as in admiralty proceedings, with a separate judgment and execution against the vessel for the amount of the lien claim found to be due, and process for the sale of the vessel for the satisfaction of such lien. It is admitted that the vessel was owned within the state, and that the materials and repairs were furnished at her home port, a port within the state where the vessel was owned. It is therefore a case of a domestic, and not a foreign, vessel; of a domestic vessel with materials and repairs furnished in a home port. The contention of the plaintiff is that the contract and service for the materials and repairs were of a maritime nature, and, with reference to the enforcement of any lien therefor by proceedings in rem, cognizable exclusively in the admiralty courts of the United States. And it is claimed that the statute authorizing the enforcement of such lien in the courts of this state, by proceedings of this kind, for repairs upon vessels, is unconstitutional, and therefore affords no protection to the officer acting under such process. The question is squarely before us upon the case as it is presented, and must be directly met, notwithstanding that portion of the statute in reference to repairs upon vessels, and to the furnishing of labor or materials for the same after they are v.15A.nos.2,3-4

launched, has been repealed since this controversy arose. The constitution of the United States (article 3, § 2) ordains that "the judicial power shall extend * ** * to all cases of admiralty and maritime jurisdiction." And according to the highest judicial authority, by which the terms of the constitution are construed, it was long ago settled that, while congress can neither enlarge nor diminish this grant of the federal judiciary, it may designate the courts which shall exercise this jurisdiction. When this is done, no state law can enlarge or diminish the jurisdiction allotted to such courts. In the proper exercise of this power by congress the judiciary act of 1789 was enacted, constituting the district courts of the United States, by the ninth section of which it is provided that said courts "shall have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, * * * saving to suitors in all cases the right of a common-law remedy, where the common law is competent to give it. It would seem unquestionable, therefore, that the jurisdiction of the district courts of the United States extends over all admiralty and maritime causes exclusively, with the exception of such concurrent remedy as was given by the common law. ". Admiralty and maritime jurisdiction," according to the generally accepted and received use of the terms, extends to all things done upon and relating to the sea, to transactions relating to commerce and navigation, to damages and injuries upon the sea, and all maritime contracts, torts, and injuries. De Lovio v. Boit, 2 Gall. 468. But as applied in this country, with its immense lakes and numerous navigable rivers, the doctrine in modern time has extended it "wherever ships float, and navigation successfully aids commerce, whether internal or external." The Hine, 4 Wall. 563; The Eagle, 8 Wall. 15.

Before proceeding further it may be proper to notice the difference in reference to liens upon domestic and foreign vessels. For repairs upon a foreign vessel, that is, a vessel out of the state or country where owned, the general maritime law gives the party furnishing the same a lien upon the vessel for his security, and he may maintain a suit in admiralty to enforce his right. In such case, if the party sees fit to enforce his lien, his remedy belongs exclusively in the courts of the United States. But where a party furnishes materials or repairs upon a vessel in her home port, no lien therefor is implied by the maritime law as accepted and received in this country. The presumption in such case is that credit is given to the owners, and not to the vessel. The reason for the existence of the lien in one case and not in the other, as declared by the courts, is based upon the principles of the maritime law, and not upon the fact that one is a contract maritime in its nature and the other not, for it is conceded by all the authorities that supplies, materials, and repairs furnished to a vessel in her home port is a maritime contract. Peyroux v. Howard, (The Planter,) 7 Pet. 341; The St. Lawrence, 1 Black, 522; The Lottawanna, 20 Wall. 219, 21 Wall 580; Abb. Shipp. 143, 148. But while, by the general maritime law, no lien exists in favor of parties furnishing repairs or necessaries to a vessel in her home port, it has been the admitted and recognized doctrine of our jurisprudence ever since the decision in The General Smith, 4 Wheat. 443, in 1819, that so long as congress does not interpose by general law to regulate the subject, the state, although it cannot create a lien, and attach it to a service or contract not maritime in its nature, and thereby extend the jurisdiction of the United States courts, (Peyroux v. Howard, supra; Forsyth v. Phoebus, 11 Pet. 175, 184; Roach v. Chapman, 22 How. 129, 132; The Belfast, 7 Wall. 644;) may extend a lien based upon a maritime service or contract to parties thus furnishing such repairs or nec essaries to such vessel, (The Belfast, supra; The Lottawanna, 21 Wall. 580; Edwards v. Elliott, Id. 557.) As to the methods of enforcing such liens, whether in the state or United States courts concurrently, or in the one to the exclusion of the other, notwithstanding the provisions of the constitution and of the judiciary act of 1789, are questions which have frequently been be

fore the supreme court of the United States, and given rise to decisions which are not easy of reconciliation. While a careful examination of the decisions is proper to a correct understanding of this question, it is unnecessary to particularly trace them in this connection. In such examination, however, it becomes necessary to bear in mind that the want of a uniform system of admiralty administration in cases where local law or state statutes gave a lien upon the property where none existed by the general maritime law, led to the adoption of what is known as rule 12 in admiralty, in 1844, and the amendments thereto in 1859 and 1872.

For many years after the adoption of the constitution jurisdiction was concurrently exercised by the state and United States courts in reference to proceedings in rem for the enforcement of liens created by the statutes of the different states. The federal courts entertained jurisdiction, and enforced liens which were not maritime or based upon maritime service or contract. Liens created by statute, and applied to the construction and building of new vessels, which are land and not sea contracts, were enforced by the admiralty or district courts of the United States, as well as liens for materials or repairs upon them after they were built. But in Ferry Co. v. Beers, 20 How. 393, in 1857, the court laid down the doctrine that a contract for the construction of a vessel is not maritime, because it is neither made nor performed on the water, and that no maritime lien is created or exists by the performance of such a contract, and refused to recognize jurisdiction in the district courts in the enforcement of statutory liens attached to contracts for the original construction of vessels. Roach v. Chapman, (The Capitol,) 22 How. 132; Edwards v. Elliott, 21 Wall. 532. The decision in Peyroux v. Howard, (The Planter,) 7 Pet. 324, rendered in 1833, has been considered as establishing the principle that if a state statute gives a lien in its nature maritime, that is, founded upon a maritime contract, and the subject-matter is within admiralty jurisdiction, the lien may be enforced by a suit in rem in the admiralty courts. No principle of admiralty appeared to be better established in the United States than that which we have just stated, that where a local law attaches a maritime lien to a maritime service within admiralty jurisdiction, a suit to enforce such lien lies in the federal courts in admiralty, and that a lien for materials or repairs on a vessel engaged in maritime commerce, a seagoing vessel, is a maritime lien, and within admiralty jurisdiction. This doctrine was generally understood in the district courts, and was affirmed in The General Smith, 4 Wheat. 438, in 1819; Peyroux v Howard, (The Planter,) 7 Pet. 324, in 1833; Forsyth v. Phoebus, (The Orleans,) 11 Pet. 175, in 1837. It was after these decisions that rule 12 in admiralty was adopted, not as establishing the law, but assuming it to be settled-First, that there was no lien for materials or repairs on a domestic vessel unless by force of local or statute law; and, second, that if there was such a lien, by local or statute law, it was enforceable in the admiralty courts of the United States. The St. Lawrence, 1 Black. 529. This rule was changed in 1858 to take effect May 1, 1859, and by the change thus made process in rem was denied unless the lien was given by the maritime law. Maguire v. Card, (The Goliah,) 21 How. 248; The St. Lawrence, supra. This change in the rule, while attempting to avoid the embarrassment arising in the federal courts from the varying and conflicting state laws, and the conflict of rights arising under them, (The St. Lawrence, supra,) proved unsatisfactory, and, after "diverse experiences and many agitations of the subject," the supreme court adopted a policy in accordance with the earlier decisions of that tribunal, and in 1872 the following rule was established: "In all suits by material-men for supplies or repairs, or other necessaries, the libelant may proceed against the ship and freight in rem, or against the master or owner in personam. As was said by PETERS, C. J., in Hayford v. Cunningham, 72 Me. 133, "the doors of the district courts, which had been since 1859 shut against suits like these now

before us, were opened to them again. Since this date the opinion and feeling among the judges of the federal courts seem to be that their jurisdiction must be exclusive."

But, in determining to what extent the legislature may go in creating or extending liens in matters of this kind, it is now too well settled to admit of doubt that the legislature of a state cannot grant admiralty jurisdiction to its own courts in matters within the jurisdiction of the district courts. The highest judicial tribunal in the land, in a line of decisions by which this court must be governed, has most emphatically asserted the doctrine and established the principle that the jurisdiction for the enforcement of a maritime lien is, under the constitution and judiciary act of 1789, exclusively in the courts of the United States, and cannot be exercised by state courts, although conferred on them by statute. The question was not directly decided until 1866, in the case of The Moses Taylor, 4 Wall. 411. The statutes of California had established a system of liens upon vessels, foreign and domestic alike, and authorized the courts of the state to enforce them by proceedings in rem. The liens created, and the proceedings authorized, had the character and incidents of admiralty liens and proceedings. The steamer Moses Taylor was seized, and libeled in the state court of California, by a proceeding in rem to enforce a lien for the breach of a contract to transport a passenger from Panama to San Francisco. The state court sustained jurisdiction, and the case was taken to the supreme court of the United States. The question was directly whether a state court can sustain an admiralty suit in rem to enforce an admiralty lien. The court was unanimous in holding that such jurisdiction was exclusively vested in the district courts of the United States, and that the provision in the constitution, by which the judicial power of the United States "shall extend * * * to all cases of admiralty and maritime jurisdiction," had of itself the effect to take such jurisdiction from the courts of the states. And it was further held that, whether that was so or not, the constitution at least authorized congress to vest the admiralty jurisdiction in federal courts exclusively of the state courts, and that congress had done this by the judiciary act of 1789, which provides that "the district courts shall have, exclusively of the courts of the several states, cognizance * * * and shall also have exclusive original cognizance of all civil causes of admiralty and marine jurisdiction." It was contended in argument, however, that a concurrent jurisdiction in the state courts was reserved for proceedings of this nature by the last clause of the judiciary act, "saving to suitors, in all cases, the right of a common-law remedy where the common law is competent to give it." But the court held that this does not save a proceeding in rem, as used in the admiralty courts, and that such a proceeding is not a remedy afforded by the common law. At the same term of the court came the decision in The Hine, 4 Wall. 555. The statutes of Iowa, like those of California, provided for its courts remedies and processes for enforcing liens on vessels, and under them proceedings had been had against the Hine for a collision on the Mississippi river. The state court sustained jurisdiction, and the case was taken to the supreme court of the United States. Following the decision in The Moses Taylor, the court held exclusive jurisdiction in the district courts of the United States. "It is a little singular," say the court, "that at this term of the court we should for the first time have the question of the right of the state courts to exercise this jurisdiction raised by two suits of error to state courts, remote from each other. The claim was also set up in that case that the proceedings authorized by the statutes of Iowa came within the clause of the judiciary act, which saved to suitors the right of a common-law remedy. But the court say that "the remedy pursued in the Iowa courts, in the case before us, is in no sense a common-law remedy. It is a remedy partaking of all the essential features of an admiralty proceeding in rem." In 1868 the same question arose in a case of contract in The Belfast, 7 Wall. 624, and re