ceived the same decision. The state court in Alabama had entertained proceedings to enforce a lien for breach of contract of affreightment, the statutes of that state having authorized the proceedings. Mr. Justice CLIFFORD, giving the opinion of the court, places the case on the authority of The Moses Taylor and The Hine, and says the difference between contract and tort is immaterial on the point of the exclusiveness of the jurisdiction of the federal courts. If the contract is maritime, and the lien attached to it is a maritime lien, not enforceable by common-law remedies, the jurisdiction of the district courts is exclusive of that of any other court, whether state or national.

Very many state courts, as well as district courts, have passed upon the question either directly or indirectly, and all seem to incline in one direction. This is now the settled policy of the supreme court, as foreshadowed, if not directly asserted, in all its recent decisions where the question is raised. As late as 1874, in the case of The Lottawanna, 21 Wall. 580, the doctrine of exclusive jurisdiction in the district courts was affirmed in the most emphatic terms. The court say: "It seems to be settled in our jurisprudence that so long as congress does not interpose to regulate the subject, the rights of material-men furnishing necessaries to a vessel in her home port may be regulated in each state by state legislation. State laws, it is true, cannot exclude the contract for furnishing such necessaries from the domain of admiralty jurisdiction, for it is a maritime contract, and they cannot alter the limits of that jurisdiction; nor can they confer it upon the state courts so as to enable them to proceed in rem for the enforcement of liens created by such state laws, for it is exclusively conferred upon the district courts of the United States. They can only authorize the enforcement thereof by common-law rem dies, or such remedies as are equivalent thereto. But the district courts of the United States, having jurisdiction of the contract as a maritime one, may enforce liens given for its security, even when created by the state laws. A lien on a sea-going vessel for repairs made upon her is a recognized admiralty lien. It is nothing else. But it is not known to or enforceabie by courts of common law. This lien, when applied to a domestic vessel, has not changed its nature. All the change there is, is this: it is extended to a class of persons not entitled to claim its benefits under the general maritime law. And such lien may lawfully be granted by the laws of a state in favor of material-men for furnishing repairs or materials to a domestic vessel, to be enforced by proceedings in rem in the district courts of the United States, but not in the courts of the state. The Lottawanna, 21 Wall. 559. The authorities which have been cited are sufficient to show the judicial sentiment upon the question. It has been followed and acted upon in several recent cases in the district courts. The Red Wing, 14 Fed. Rep. 869, decided in 1882; The Howard, 29 Fed. Rep. 604, decided in 1887; The Alanson Sumner, 28 Fed. Rep. 670; U. S. v. Ferry Co., 21 Fed. Rep. 331. Nor do the authorities deny that such liens may be enforced by common-law remedies, or such as are equivalent thereto, in the state courts. "But it is not a remedy in the common law courts which is saved, but a common-law remedy; not such as a legislature may confer upon a common-law court, but such as the common law itself (in 1789) was competent to give." Hayford v. Cunningham, 72 Me. 133. "It could not have been the intention of congress, by the exception in that section, to give the suitor all such remedies as might afterwards be enacted by state statutes, for this would have enabled the states to make the jurisdiction of their courts concurrent in all cases, by simply providing a statutory remedy for all cases. The Hine, 4 Wall. 571.

The proceedings in the case under consideration, as in Hayford v. Cunningham, supra, were not a common-law remedy, nor such as the common law was competent to give. The suit was against the vessel itself, and not against the interest of the owner in it. The characteristic feature of the proceeding is that the vessel proceeded against is itself seized and impleaded as

the defendant, which is substantially the proceeding in a court of admiralty in proceedings in rem. At common law, proceedings are against persons, and if property is seized or taken it is taken as the property of the person proceeded against, and the purchaser at the sheriff's sale gets only such title or interest as the defendant had. The process is against another as owner of the property, “and not against the property as an offending thing, as in the case where the libel is in rem in the admiralty court to enforce a maritime lien in the property." Leon v. Galceran, 11 Wall. 189; Johnson v. Elevator Co., 119 U. S. 397, 7 Sup. Ct. Rep. 254. The statute, therefore, so far as it authorized proceedings in rem in the courts of this state for the enforcement of a lien for labor, materials, or repairs upon a domestic or foreign sea-going vessel, must be held to be in contravention of the constitution and laws of the United States. The result is that the process under which this defendant attempts to justify was not such as would protect him in seizing the vessel. Sufficient appeared upon its face to show that it was not from a court of competent jurisdiction in reference to the subject-matter. The process disclosed upon its face that it was to enforce a lien claim by proceedings in rem for repairs upon the vessel against which the charges were made, as the specifications annexed to and forming a part of the proceedings plainly show. The process was not only irregular, but absolutely void. Such was the decision in Campbell v. Sherman, 35 Wis. 103, where it was held that a process in rem to enforce a maritime lien issuing from a state court will not protect the officer executing it, inasmuch as the state courts here have no jurisdiction in such cases. This principle is recognized in Fisher v. McGirr, 1 Gray, 45, where it is expressly held that if the court has no jurisdiction over the subject-matter, the process, though apparently irregular, is not merely voidable, but wholly void, and the officer taking property under it has no authority, and is therefore liable to an action of trespass. See, also, Cassier v. Fales, 139 Mass. 462, 1 N. E. Rep. 922; Elsemore v. Longfellow, 76 Me. 130, 131. And, moreover, it is settled that where the law, under which the officer acts, is "unconstitutional, it is void. Though having the form, it has not the force of law. The provisions professing to confer jurisdiction give no jurisdiction, and the proceedings even of subordinate officers under it cannot be justified. Warren v. Mayor, etc., 2 Gray, 97; Norton v. Shelby Co., 118 U. S. 442, 6 Sup. Ct. Rep. 1121; Virginia Coupon Cases, 114 U. S. 271, 5 Sup. Ct. Rep. 923, 962. The case shows that the plaintiff in this action, at the time when the seizure was made, and at the commencement of this suit, held a mortgage upon the vessel with the right of immediate possession in himself, the time having elapsed in which such right belonged to the mortgagor by the terms of the mortgage. He can therefore maintain this action. Welch v. Whittemore, 25 Me. 86; Holmes v. Sprowl, 31 Me. 76; Barrows v. Turner, 50 Me. 128; Staples v. Smith, 48 Me. 470; Codman v. Freeman, 3 Cush. 306.

The only remaining question is one of damages, and upon this the instructions given to the jury were undoubtedly correct. We have examined this question with considerable care, and are unable to arrive at any other conclusion than that the value of the vessel at the time of the conversion, with interest thereon to the time of the verdict, is the true rule of damages in this case. Such is the general and well-settled rule in actions of this nature. This rule applies where the plaintiff is general owner, or is answerable over to others. But where the defendant, although a wrong-doer, has a lien on the property, such amount as may be due on the lien is allowed to be deducted from the value, to avoid circuity of action, in mitigation of damages. Chamberlin v. Shaw, 18 Pick. 283. Or he may show in mitigation that the goods did not belong to the plaintiff, and that they have gone to the use or benefit of the owner. Squire v. Hollenbeck, 9 Pick. 552. But in such case it is essential to show that the property has actually gone to the use of the real owner, for although there may be a mere outstanding title in a third person,

that would furnish no ground for reduction of damages to one who has wrong fully taken the property, or converted it to his own use. Case v. Babbitt, 16 Gray, 280; Lyle v. Barker, 5 Bin. 457; White v. Webb, 15 Conn. 302; Cres sey v. Parks, 76 Me. 534; Pierce v. Benjamin, 14 Pick. 356; Perry v. Chandler, 2 Cush. 242; Carpenter v. Dresser, 72 Me. 380. Or, in reduction, it may be shown that the defendant is entitled to the property after the plaintiff's mortgage has been satisfied. Sporr v. Holland, 8 Wend. 445; Üllman v. Barnard, 7 Gray, 558. But where the plaintiff is responsible over, by operation of law or otherwise, to a third person, or if for any cause the defendant is not entitled to the balance of the value, then the rule is that the value of the property should be assessed to the plaintiff. Chamberlin v. Shaw, 18 Pick. 284; Green v. Farmer, 4 Burrows, 2214. Or if the wrong-doer is a third person, and not the general owner. White v. Allen, 133 Mass. 424. In the case of Ullman v. Barnard, supra, the court say: "The measure of damages is the value of the flour, with interest from the time of its conversion. The right of property and possession were both in the plaintiff; and although he had only a special property in the flour, as security for the amount of the drafts, he is entitled to recover its full value. He is answerable over to the general owner. In this case the actual possession was not in the plaintiff, but he had the right of possession. The case of Codman v. Freeman, 3 Cush. 314, is very analogous to the question before us. The action was trespass by the mortgagees against an officer for attaching and selling certain personal property. Insolvency proceedings were instituted against the party owning the property, and thereby the attachments were dissolved; and the court say that the attaching creditors no longer had any lien by their attachment or interest in the goods, and that the interest of the officer created by the attachment was divested, and he and the creditors were then strangers. SHAW, C. J., by whom the opinion of the court was delivered, says: "By force of the mortgage, the plaintiffs became owners of the property, as against the mortgagor, with the right of present possession, by a defeasible title, indeed; still, by a title which made them owners until defeated. The sheriff takes them under claim of right to attach them in behalf of creditors; but that attachment is dissolved, and then the plaintiffs have the same right against the officer as they would against any other stranger; and, upon recovering damages, they are entitled to the full value.' See, also, Pomeroy v. Smith, 17 Pick. 86; Barrows v. Turner, 50 Me. 129, 130; Carpenter v. Dresser, 72 Me. 379. In this case the seizure was without right. The officer was a wrong-doer, and upon no principle of law can he claim any mitigation or reduction of damages from the real value of the vessel. The defendant stands in no position to show that he is entitled to the balance of the value, if any, above the plaintiff's mortgage. His position is that of a stranger and wrong-doer, and by the well-settled principles of law he is responsible to this plaintiff for the value of the property. But, notwithstanding the plaintiff is entitled to recover upon the law as appears to have been correctly given, yet we have no doubt from the evidence that a wrong has been done the defendant in the amount of the verdict. The case shows that the mortgagor has surrendered all his interest in the vessel to the plaintiff, with no consideration other than that of the original mortgage. Whatever the law may be as applied to other cases, the court in this case will not sustain a verdict for an amount larger than the mortgagee's interest in the vessel, and not even to that extent if the amount is greater than a fair value of the vessel. The schooner was 25 years old. Some of the witnesses place its value as low as $1,000. Others place a higher estimate upon it. While the plaintiff may be entitled to a fair compensation, certainly there is nothing in the case by which he should be entitled to any fancy value of the property. The equities of the case are most decidedly against it. The jury must have been influenced by bias or prejudice in returning the amount of their verdict. The motion for a new trial must be sus

tained, unless the plaintiff will remit from the amount of the verdict all above $1,700. If he shall remit all above that sum, and have such entry made upon the docket where the action is pending within 30 days from the time notice of decision in this case is received by the clerk, then the motion for a new trial is to be overruled, otherwise to be sustained, and a new trial granted. Exceptions overruled. Judgment accordingly.

PETERS, C. J., Walton, VIRGIN, LIBBEY, and HASKELL, JJ., concurred.

(80 Me. 454)

CLARK v. BRADSTREET.1

(Supreme Judicial Court of Maine. July 2, 1888.) BASTARDY-EVIDENCE-INFANT-COMPARISON OF FEATURES.

In bastardy proceedings it is error to allow an infant, six weeks old, to be introduced in evidence, and viewed by the jury, to enable them to judge from a comparison of its appearance, complexion, and features with those of the defendant, whether any inference could be legitimately drawn therefrom as to its paternity." Exceptions from superior court, Kennebec county.

Bastardy process. The verdict was in favor of the complainant. At the trial the complainant introduced the child, then six weeks old, in evidence, to show its resemblance to the alleged father. To this evidence the defendant alleged exceptions.

J. H. Potter, for plaintiff. H. M. Heath, for defendant.

FOSTER, J. This was a bastardy process, in which a verdict was rendered for the complainant. At the trial the child, then but six weeks old, was offered, admitted in evidence, and exhibited to the jury by the complainant, against the defendant's objection, and exceptions were taken. Notwithstanding the paternity of the child was sought to be established, and the putative father was defendant in the suit, we think the exceptions must be sustained. The only object for which it is claimed that the child was introduced in evidence and viewed by the jury, was to enable them to judge, from a comparison of its appearance, complexion, and features with those of the defendant, whether any inference could legitimately be drawn therefrom as to its paternity. In a case like this, where the child was a mere infant, such evidence is too vague, uncertain, and fanciful, and, if allowed, would establish not only an unwise, but dangerous and uncertain, rule of evidence. While it may be a well-known physiological fact that peculiarities of form, feature, and personal traits are oftentimes transmitted from parent to child, yet it is equally true, as a matter of common knowledge, that during the first few weeks, or even months, of a child's existence, it has that peculiar immaturity of features which characterize it as an infant, and that it changes often and very much in looks and appearance during that period. Resemblance then can be readily imagined. This is oftentimes the case. Frequently such resemblances are purely notional or imaginary. What may be considered a resemblance by one may not be perceived by another having equal knowledge of the parties between whom the resemblance is supposed to exist If there should be a likeness of features, there might be a difference in the color

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

2 Where, in a prosecution for bastardy, the prosecuting witness takes the child with her to the witness stand, it being at the time about seven months old, it is not error for the trial court to refuse to order the child to be removed, there being no reference made to it during the trial or argument, and no comparison being made between it and the alleged father. Hutchinson v. State, (Neb.) 27 Ñ. W. Rep. 113.

In bastardy proceedings, where the attorney for the prosecution instructs the prosecuting witness to turn the face of the bastard child so that the jury could observe it, which, upon objection, the court holds improper, there is no error of which defendant can complain. Ingram v. State, (Neb.) 37 N. W. Rep. 943.

of the hair or eyes. As was said by the court in People v. Carney, 29 Hun, 47: "Common observation reminds us that in families of children different colors of hair and eyes are common, and that it would be a dangerous doctrine to permit a child's paternity to be questioned or proved by the comparison of the color of its hair or eyes with that of the alleged parent." Mr. Justice HEATH, in the case of Day v. Day, at the Huntingdon assizes in 1797, upon the trial of ejectment, where the question was one of partus sûppositio, admitted that resemblance is frequently exceedingly fanciful, and therefore cautioned the jury in reference to such evidence. And in a trial in bastardy proceedings the mere fact that a resemblance is claimed would be too likely to lead captive the imagination of the jury, and they would fancy they could see points of resemblance between the child and the putative father. As in the case at bar, where the infant was but a few weeks old, such evidence, if allowed in determining the paternity of the child, would be exceedingly fanciful, visionary, and dangerous. The testimony of witnesses, where they have no special skill or knowledge in such matters, has never been admitted in this state or Massachusetts to prove a resemblance in the features between the child and the alleged father. Keniston v. Rowe, 16 Me. 38: Eddy v. Gray, 4 Allen, 438. Nor points of dissimilarity, not implying a difference of race. Young v. Makepeace, 103 Mass. 54. We are aware that in New Hampshire, Massachusetts, and North Carolina, and perhaps some of the other states, on an issue of bastardy, the courts have allowed the jury to judge of likeness by inspection. Gilmanton v. Ham, 38 N. H. 108; Finnigan v. Dugan, 14 AIlen, 197; State v. Arnold, 13 Ired. 184; State v. Woodruff, 67 N. C.89. And in deciding with regard to the color of the child, whether of negro blood or not, it has been held proper to exhibit it to the jury. Warlick v. White, 76 N. C. 175; Garvin v. State, 52 Miss. 207. No one will doubt the propriety or reason upon which these decisions are based when the question is one of race or color, for it is well understood that there are marked distinctions, physical and external, between the different races of mankind, which may enable men of ordinary intelligence and observation to judge whether they are of one race or another. In State v. Smith, 54 Iowa, 104, 6 N. W. Rep. 153, the child was two years and one month old, and the court there held that a child of proper age might be exhibited to the jury, and that it was not error to exhibit a child of that age, with instructions to the jury to disregard the evidence unless they could see the resemblance claimed. In the decisions from New Hampshire and Massachusetts nothing appears to show the age of the child of which the court speak. Our attention has been called to no other decisions in New England, nor have we been able to find any where this question has came before the courts. But from a careful examination of the cases in those states where the question has arisen, we are satisfied that the weight of authority is against the admission in evidence of a mere infant, where race or color is not involved. Thus, in Hanawalt v. State, 64 Wis. 84, 24 N. W. Rep, 489, a child less than one year old was exhibited to the jury for their inspection. This was held error, and the court say: "When applied to the immature child, its worthlessness as evidence to establish the fact of parentage is greatly enhanced, and is of too vague, uncertain, and fanciful a nature to be submitted to the consideration of a jury." In State v. Danforth, 48 Iowa, 43, where the child was but three months old, the court say that the resemblance of infants to the father is too uncertain and ind.stinct to be allowed as evidence, and that it would be an unwise and dangerous rule to permit the admission of a child of that age. In Risk v. State, 19 Ind. 152, the court doubted the right to introduce an infant in evidence, saying that it had seen no authority on the point; that it would be an uncertain rule, and would involve the necessity of giving the alleged father in evidence. The same question was before that court in Reitz v. State, 33 Ind. 187, where the child was held up before the jury for inspection, but the court decided it