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upon the defendant to answer its several allegations touching this matter, and also certain specific interrogatories which are annexed. The defendant in his answer denies that the bonds and notes were intrusted to him for the purpose alleged, but avers that the bonds were placed with him as security for any liabilities which one Paine and himself might incur for the complainant, and for the payment of his three notes, exceeding in amount $3,000, and one for $90, upon which the defendant was surety for the complainant; that the complainant never paid either of these notes, and after repeated postponement made at his request, the bonds were, in June 1857, sold to pay them at public auction, after notice to him; that at the sale some of the bonds were purchased by third persons, but that the larger portion were bid in by the defendant; that the prices given were the full and fair value of the bonds at the time, and greater than their market value for years afterwards; that the amounts bid were indorsed on the notes of the complainant and an account of the sales showing the prices obtained and the names of the purchasers, was transmitted to him; that subsequently, in 1858, in an interview at Augusta, the defendant offered to obtain the bonds and return them to the complainant if he would pay his note, and that he replied that the bonds were not then worth as much as they were sold for, and that the defendant must keep what was obtained, and if he were ever able he would pay the balance; that subsequently the bonds were greatly depreciated in the market, and in 1858 and 1859 were sold as low as at the rate of $10 for the hundred.

With reference to the notes, the defendant meets the several allegations of the bill by direct denial, and avers that the corporation was hopelessly insolvent, and that all its property was mortgaged for more than it was worth, and that this fact was known to the complainant at the time the notes were placed in the defendant's hands; and that a suit was commenced against the corporation with a view of enforcing their collection from the stockholders, but was abandoned in consequence of a decision such attorney and for his failure to pay over money collected. In order to avoid this liability, claim must be received for transmission simply. Bradstreet v. Everson, 72 Pa. St., 124; Rhines v. Evans. 66 Pa. St., 192: Cox v. Livingston, 2 Watts & S., 103; 37 Am. Dec., 486; Kranse v. Dorance, 10 Barr., 462; Wilkinson v. Griswold, 20 Miss., 669; Lewis v. Peck. 10 Ala.. 142; Cummins v. McLain, 2 Ark., 402; Pollard v. Rowland, 2 Blackf., 22: Cummins v. Heald, 24 Kan., 600; 36 Am. Rep., 264 Attorney is liable for gross neglect to collect a claim received by him for collection. Oldham V. Sparks, 28 Tex., 425; Reilly v. Cavanaugh, 29 Ind., 435: Eccles v. Stevenson, 3 Bibb., 517; Dearborn v. Dearborn, 15 Mass., 316.

An attorney is not liable for a mistake on a point of law upon which there is doubt, or for an error of judgment into which a cautious man might fall. The question is, whether he exercised reasonable skill and care. Kemp v. Burt, 1 N. & M., 262; 4 B. & Ad., 424; Montrion v. Jeffreys, 2 C. & P., 113; R. & M., 317 Shillcock v. Passman, 7 C. & P., 289; Crosbie v. Murphy, 8 Ir. C. L. R., 301; Elkington v. Holland, 9 Mees. & W., 658; Lewis v. Collard, 27 L. J. C. P., 32.

An attorney is liable for bringing an action in a court which has uo jurisdiction, or in one which is not so constituted as to carry out the object of the action. Williams v. Gibbs, 6 N. & M., 788: 2 A. & W.. 241; Cox v. Leech, 1 C. B. N. S., 617: 3 Jur. N. S., 442; 26 L. J. C. P., 125.

An attorney is liable for neglect to prepare for or attend trial. Mercer v. King, 1 F. & F., 490; Reece

of the Supreme Court of the State that the stockholders were not liable.

The answer of the defendant is sustained in all material allegations by the evidence in the case, except in one particular, which we will presently mention.

So far as the notes are concerned the case may be dismissed from further consideration. The bill does not charge any fraudulent conduct on the part of the defendant in connection with them, but merely a neglect of professional duty in prosecuting them. The insolvency of the company, and the amount of its mortgages, are a sufficient answer to the charge for neg lecting to proceed against its property, and the decision of the Supreme Court justified the withdrawal of the proceeding instituted to charge the stockholders. As justly observed by the learned district judge who presided in the circuit court on the trial of this case, an attorney cannot be charged with negligence when he accepts, as a *correct exposi- [183 tion of the law, a solemn decision of the Supreme Court of the State. That decision was made in 1858, and was so generally acquiesced in, that numerous kindred suits were disposed of in conformity with it.

The particular in which the evidence fails to fully support the allegations of the answer relates to the transmission averred to have been made to the complainant of the account of the sales had, showing the prices obtained and the names of the purchasers. But in this particular we think the answer is so far responsive to the averments of the bill that it must be taken as evidence on behalf of the defendant. And there is much in the testimony, and the circumstances attending the sale, which leads to the conclusion that the complainant was informed of the prices received. He was deeply interested in this sale; he had notice of the time and place at which it was to be made; and it had been postponed on several occasions at his request. It is hardly credible that he did not ascertain the prices which the bonds brought when the sale was made. is not a reasonable inference that he lost all interest in the result when he was unable to v. Rigby, 4 B. & A., 202; Swannell v. Ellis, 8 Moore, 344; 1 Bing., 347; Hatch v. Lewis, 2 F. & F.. 407; S. C., 7 H. & N., 367; 31 L. J. Exch., 26; 7 Jur. N. S., 1085; 5 L. T. N. S., 254.

It

What amounts to gross negligence, such as will charge an attorney, must depend upon the particular facts of each case, and whether these facts amount to chargeable negligence or not, rests with the determination of the jury. Walker v. Goodman, 21 Ala., 647; Dearborn v. Dearborn, 15 Mass., 315; Caverly v. McOwen, 123 Mass., 574; Hunter v. Caldwell, 10 Q. B., 69; Evans v. Watrous, 2 Port., 205; Walpole v. Carlisle, 32 Ind., 415.

Where an attorney delayed so long that the debt became barred by the Statute of Limitations, he is chargeable. Oldham v. Sparks, 28 Tex., 425; Hunter v. Caldwell, 10 Q. B., 69.

Attorneys are liable for the negligence of their clerk or of an attorney employed by them and, when practicing in partnership, for their partner's want of skill or negligence, and each individual member is liable for the misconduct of any of the other members of the firm. Birkbeck v. Stafford, 14 Abb. Pr.. 285; Floyd v. Nagle, 3 Atk., 568; Poole v. Gist., 4 McCord. 250; Livingston v. Cox. 6 Pa. St., 360; Norton v. Cooper, 3 Sm. & G., 375; Simmons v. Rose, 31 Beav., 1; Dwight v. Dimon. 4 La. Ann., 490; Pollard v. Rowland, 2 Blackf.. 20; Wilkinson v. Griswold, 12 Sm. & M., 669; Cummins v. Heald, 24 Kan.. 600; 36 Am. Rep., 264.

Tiability to client for mistake-see note 52 L. R. A. 883.

obtain a further postponement of the sale. And if he ascertained the prices, it is highly probable that he ascertained the names of the purchasers also.

The sale of the bonds was made, as already stated, in June, 1857, and it was not until January, 1869, nearly twelve years afterwards, that the complainant asserted any claim to the bonds, or any claim that the defendant was accountable to him for any neglect of duty or misconduct in relation to them. The question, therefore, is whether the complainant under these circumstances after this long acquiescence in the acts of the defendant, with knowledge of the transaction, can call upon him to account for the present value of the bonds purchased by him. Most undoubtedly that sale was voidable. The character of vendor and that of purchaser cannot be held by the same person. They impose different obligations. Their union in the same person would at once raise a conflict between interest and duty, and, constituted as humanity is, in the majority of cases 184*] duty would be overborne in the *struggle. The law, therefore, wisely prohibits a party selling on another's account from becoming a buyer on his own at the sale, and will always condemn transactions of that character whenever their enforcement is attempted. The complainant could have treated the purchase made by the defendants as a nullity. He could have insisted that the relation of the defendant to the property was not changed by the proceeding, and that he stood charged with the same trust respecting it with which he was charged previously. And were there nothing more in the case than the fact of the sale and purchase, the complainant would be entitled to call the defendant to account for the full value of the bonds. But unfortunately for him there is more in the case. He has adopted and approved of

re

the transaction. His declaration to the defendant at Augusta the year following the sale is evidence tending to that effect, and considered in connection with his long acquiescence in the transaction, must be deemed conclusive. Had he at once denied the validity of the transaction, or by any declaration or proceeding indicated dissatisfaction with it, or even frained from expressions of approval, he would have stood in a court of equity in a very different position. There is no doubt that the prices bid at the sale were all that the bonds were then worth, and there is no reason for imputing intentional fraud to the defendant. Under these circumstances he may very well have been justified in assuming, and in acting

upon the assumption, that the complainant was satisfied with his proceedings. The fact that the complainant never felt himself aggrieved until the bonds of the company had risen to their par value, which only occurred after this court had adjudged, on appeal from the Supreme Court of the State, that the stockholders were personally liable for its debts, leads to the inference that the present suit was prompted more by a spirit of speculation than any sentiment that injustice had been done to him. At any rate the claim now presented is a stale one. The complainant does not set forth specifically any grounds which could have constituted impediments to an earlier prosecution 185*] *of his suit. It does not even inform

us when he first became acquainted with his supposed wrongs. His language is that he was not aware of the purchase by the defendant until lately-language altogether too vague to invoke the action of a court of equity. The party, says this court in Badger v. Badger, 2 Wall., 95, 17 L. ed. 838, citing from previous decisions, who appeals to the conscience of the chancellor in support of a claim, where there has been laches in prosecuting it, or long acquiescence in the assertion of adverse rights, "Should set forth in his bill specifically what were the impediments to an earlier prosecution of his claim; how he came to be so long ignorant of his rights, and the means used by the respondent to fraudulently keep him in ignorance; and how and when he first came to a knowledge of the matters alleged in his bill; otherwise the chancellor may justly refuse to consider his case, on his own showing, without inquiring whether there is a demurrer or formal plea of the Statute of Limitations contained in the answer."

The reasons here stated apply to the present case, and justify the decree of the Circuit Court dismissing the complainant's bill; which is, therefore, affirmed.

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(See S.. C., "The Mohler," 21 Wall., 230-235.) Carrier, burden of proof to exonerate negligence in running against piers of bridge.

1. The burden of proof lies on the carrier to show that a loss occurred through a peril of navigation, excepted in the bill of lading, and nothing short of clear proof, leaving no reasonable doubt for controversy, should be permitted to discharge him from duties which the law has annexed to his employment.

2. Where the weather was boisterous, and it was difficult at all times to make the passage between duty of the master to stop until the weather became piers of a railroad bridge on a river, it was the calm. Failing in this duty, he is chargeable with the consequences of his negligence.

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The libel in this case was filed in the District Court of the United States for the District of Wisconsin, by the appellee, to recover for the loss of a certain cargo of wheat. A decree having been entered in favor of the libelant, and affirmed upon appeal by the circuit court, the claimants of The Mollie Mohler took a further appeal to this court.

The case is sufficiently stated by the court. Messrs. John W. Cary and J. P. C. Cottrell, for appellant:

There can hardly be said to be a dispute of facts here. The whole testimony shows that it had been a boisterous day; that the steamboat

laid up at Mendota before attempting to pass
either bridge, for the wind to go down, and re-
mained until sundown, when, so far as they
discovered, the weather had become sufficiently
calm to enable them to run the bridges safely;
that they then started on their voyage and
passed the bridge at Mendota safely, and felt no
wind until they came immediately upon the
piers where the accident occurred; and that
when they discovered or felt the wind seriously,
they were too near the piers to round to and
avoid going through in safety; and in that ex-
tremity decided to attempt the passage of the
piers. These facts are clearly shown by all
the testimony and the whole case.
The ques-
tion, therefore, is one of law, rather than a
disputed question of fact.

The loss arose from a peril of navigation, and not from the appellant's negligence.

Mr. N. J. Emmons, for appellee: Where the carrier's own negligence has brought him into danger, or subjected him to the influence of vis major, he is not excused. The principle was expressly declared in the case of New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How., 344, and has been frequently recognized and applied in subsequent cases, especially Holladay v. Kennard, 12 Ŵall., 254, 20 L. ed. 390.

This court will not reverse unless clear and palpable error in judgment upon the facts is

shown.

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The appellee was the insurer of a cargo of wheat shipped on a barge appurtenant to the steamer Mollie Mohler on the 13th of May, 1866, at Mankato in the Minnesota River in the State of Minnesota, and destined to St. Paul on the Mississippi. The barge was wrecked by collision with a bridge pier just above the City of St. Paul, and the cargo became a total loss which the insurance company paid; and filed its libel in the district court to recover the amount under its right of subrogation.

It is insisted that the loss occurred through a peril of navigation, which was one of the exceptions contained in the bill of lading and that,

therefore, the carrier was excused from a delivery of the wheat. Both the lower courts held

that this excuse was not justified by the evi

dence, and that the officers of the steamer were

guilty of a wrongful act in attempting to pass through the piers of the bridge in the state of the weather at the time. The burden of proof

driven her against the pier, but this does not solve the difficulty. The inquiry is, whether the passage should have been undertaken at all in the general bent of the weather on that day. If the carrier had sufficient warning to put him on his guard, and chose to neglect it and take the chances of a venture when common prudence told him there was danger in it, he cannot escape on the ground that the particular peril which finally overcame him was a sudden gust of wind. The general doctrine, that a carrier is not answerable for goods lost by tempest, has no application to such a case.

66

It is undeniable that the weather was boisterous during the after part of the day on which the loss occurred, and that the boat laid up at Mendota, near the mouth of the Minnesota River, on account of the wind. After sundown she proceeded on her voyage, the wind having "abated," the master says; or, according to the testimony of the mate, having calmed down some." There is a singular discrepancy in the testimony of these two officers as to the condition of the wind after the boat left Mendota ; the master swears there was no wind to affect the boat until The Julia, an ascending boat, got near The Mohler; while the mate says the wind rose after The Mohler left Mendota, and blew hard by spells all the way down. They also disagree as to the point where The Julia was met. The master says it was not more than a quarter of a mile above the piers, while the mate fixes the distance at one and a half miles. Both had equal opportunities of judging, and there is nothing in the record affecting the credibility of either. case the defense fails, for the respondents have no right to ask the court to prefer the tes

In such a

timony of one witness over the other when there is nothing in the record to show that one is more liable than the other.

dence to establish satisfactorily that the weathApart from this, there is enough in the eviwind changed, and that the boat should either er had not cleared, nor the direction of the landed at some proper point before the piers not have left her moorings at Mendota, or have were reached. It won't do to say that the wind had moderated, and that the officers of the boat They had no right to think so, for on such a thought they could get through without trouble. day squalls were likely to arise at any moment, and it was bad seamanship, being forewarned, to attempt to go through such a dangerous place in the river. It is difficult at all times to make the passage of these piers, and especthe south, which was the case on that day. ially so in sudden gusts of wind blowing from time, and when the current, by reason of high And this difficulty is enhanced in the night

lies on the carrier, and nothing short of clear
proof, leaving no reasonable doubt for contro-water, is increased.
versy, should be permitted to discharge him
from duties which the law has annexed to his
employment. This burden has been assumed
by the carrier, and the case was heard on the
testimony introduced by the respondents, the
libelant having called no witnesses.

Any prudent officer would have stopped until the weather became calm. At any rate it was the duty of the master of the boat in question to have done so and, failing in this duty, he is chargeable with the consequences of his negligence, which, in this case, were lamentable, for not only was the property in his charge de The answer sets up that the accident occurred through a sudden and unexpected gust of wind stroyed, but a human life lost. The officers of which overtook the boat as she was about pass- steamers plying the western waters must be held ing through the piers, and that she is, therefore, to the full measure of responsibility in havigatnot answerable for the consequences of the col-ing streams where bridges are built across them. lision. It may be true that the boat would have These bridges supported by piers, of necessity safely made the passage if the wind had not increase the dangers of navigation, and river

tribunals.

6. State Legislatures have no authority to create a maritime lien, nor can they confer any jurisdiction upon a State Court to enforce such a lien by a suit or proceeding in rem, as practiced in the admiralty courts. The original jurisdiction to enforce such a lien by that mode of proceeding is exclusive in the U. S. District Courts. building, or furnishing materials for building a 7. The States have power to create such liens for ship, as their Legislatures may deem just and expedient, not amounting to a regulation of commerce, and to enact reasonable rules and regulations prescribing the mode of their enforcement.

8. The provision of the Federal Constitution which secures to every party, where the value in does not apply to trials in the State Courts. controversy exceeds $20, the right of trial by jury,

men instead of recognizing them as lawful such contracts are purely local and are governed structures built in the interests of commerce, by state laws, and should be enforced by the state 235*]* seem to regard them as obstructions to it, and apparently act on the belief that frequent accidents will cause their removal. There is no foundation for this belief. Instead of the present bridges being abandoned, more will be constructed. The changed condition of the country, produced by the building of railroads, has caused the great inland waters to be spanned by bridges. These bridges are, to a certain extent, impediments in the way of navigation, but railways are highways of commerce as well as rivers, and would fail of accomplishing one of the main objects for which they were created-the rapid transit of persons and property-if rivers could not be bridged. It is the interest as well as the duty or all persons engaged in business on the water routes of transportation to conform to this necessity of commerce. If they do this and recognize railroad bridges as an accomplished fact in the history of the country, there will be less loss of life and property, and fewer complaints of the difficulties of navigation at the places where these bridges are built. If they pursue a different and contrary course, it rests with the courts of the country, in every proper case, to remind them of their legal responsibility.

The decree of the Circuit Court is affirmed.

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IN

[No. 62.]

Argued Nov. 12, 1874. Decided Nov. 30, 1874.
IN ERROR to the Court of Errors and Ap-
peals of the State of New Jersey.
The case is fully stated by the court.
Mr. Dennis McMahon, for plaintiffs in
error:

A contract to build a vessel, or to furnish materials to a new vessel in process of construction, is of a maritime character.

(a) This question arose in The People's Ferry Co. v. Beers, 20 How., 393, 15 L. ed., 961, and in Roach v. Chapman, 22 How., 129, 16 L. ed., 294.

At the time the state of the facts arose under

which Beers' assignors claimed the lien on the steamboat Jefferson, there was no lien law in existence in New Jersey (the Act was passed in 1857); consequently, under the then existing decisions of this court, in cases of alleged liens

sought to be enforced on vessels for work done in their home port, where no lien was given by the local law, it was clear that in the admir

was of a maritime nature, no lien existed in rem, and the case could have been decided on that point; but the court went further, and decided that the contract was of a maritime character.

State judgment—when reviewed-Federal ques-alty, conceding that the contract in question tion-amended judgment-contract for shipbuilding or materials, not maritime-maritime lien, how enforced-state lien for build ing, or materials, for ship-trial by jury. 1. This court cannot go out of the record to reexamine any question under a writ of error to a State Court.

2. The jurisdiction of this court cannot be sustained, where the errors assigned in the State Court do not show with sufficient definiteness that any question cognizable here under a writ of error to a State Court was presented to the State Court for

decision.

3. Where the State Court decided that a contract for the building of a schooner was not a maritime contract, and that the law of the State giving a lien for its building does not conflict with the Federal Constitution or with Federal laws, it is sufficient to give this court jurisdiction.

4. Where the State Court amended its judgment after the writ of error, the judgment brought here as part of the return to the writ of error from this

court must remain as the judgment which this court is called upon to re-examine and review.

5. A contract for building a ship or for supplying engines, timber or other materials for her construction, is not a maritime contract. In this country NOTE-Trial by jury, how affected by Seventh Amendment to the U. 8. Constitution-see note to 19 L. ed. U. S. 658.

Jurisdiction of U. 8. Supreme Court where fed eral question arises, or where is drawn in question statute, treaty, or Constitution of U. S.-see notes, 2 L. ed. C. S. 654; 4 L. ed. U. S. 97; 6 L. ed. U.

S. 571.

What the record must show upon writ of error to a state court-see notes, 63 L. R. A. 329; 63 L. R. A. 471.

Admiralty jurisdiction of contracts-see note, 66

L. R. A. 193.

The language of Justice Catron, in measuring the sources of admiralty and maritime jurisdiction, has not been sustained by the subsequent decisions of this court in The St. Lawrence, 1 Black, 522, 17 L. ed., 180, and in the very late cases of The Maggie Hammond, 9 Wall., 435, 19 L. ed., 772, and of Ins. Co. v. Dunham, 11 Wall., 1, 20 L. ed., 90.

The case in 11 Wall. affirmed De Lovio v. Boit, 2 Gall., 398.

Beginning this case by the test presented by Ins. Co. v. Dunham, the contract for building this vessel had direct reference to maritime service, and maritime transactions and materials furnished to such a vessel towards its construction, was as much maritime as the furnishing materials to any vessel undergoing process of rebuilding or thorough repairing. In the decisions or practices of our admiralty courts under the Colonial rule and after the formation of our government, contracts relating to the building of a new ship or furnishing materials for that purpose, were well recog nized subjects of admiralty jurisdiction, and our district courts for many years entertained jurisdiction over such cases.

Davis v. A New Brig, Gilp., 473; Harper v.

The New Brig, Gilp., 536; The Hull of a New Ship, Davies, 199; The Richard Busteed, The maritime law, as laid down by all the great civilians and jurists, embraced contracts for building, repairing, supplying and navigating ships.

The Digest, Lib. 42, tit. 6, arts. 26-34; The Consulat de la Mer. ch. 32; Cleirac Jur de la Marine, 351, art. 6; Marine Ordinance of 1691 1 Valin, 113; Emerig. Tr. Mar. Loans, ch. 12, secs. 3-5, p. 566, quarto ed., Boulay-Paty, secs. 1, 2, English Judges with the King and Counsel on the Resolutions of 1632, Resolution 3; Pardessus, 6th vol., quarto collection de Loix Maritimes.

See, also, in the case of The Richard Busteed, 1 Sprague, Dec., 444, reviewing the case of The People's Ferry Co. v. Beers, 20 How., 393, 15 L. ed. 961, and, also, reviewing the two cases of Clinton v. The Hannah, Bee, 419, and of The Turnbull v. The Enterprise, Bee, 345, quoted in the opinion of The People's Ferry Co. v. Beers,

supra.

Mr. A. Q. Keasbey, for defendants in er

ror:

The question of the constitutionality of the Act was not before the court and was not decided.

It is not sufficient that it might have arisen or been applicable to the case, unless it is further shown by the record that it did arise, and was applied by the court to the case.

The Victory, 6 Wall., 382, 18 L. ed., 848; Hamilton Co. v. Mass., 6 Wall., 632, 18 L. ed. 904; Steines v. Franklin Co., 14 Wall., 15, 20 L. ed. 846.

The judgment of the Supreme Court states clearly the ground of the decision, that the claims were subsisting liens under the laws of New Jersey.

And the record of the Court of Errors as amended shows that the question, whether the builders were owners at the time the claims were liens, was the sole question before the court.

If the court had decided the Act valid on the ground that a contract for building a vessel was not a maritime contract, such decision would have been in conformity with the uniform decisions of this court, and would have been correct.

People's Ferry Co. v. Beers, 20 How., 393, 15 L. ed. 961; Roach v. Chapman, 22 How., 129, 16 L. ed. 294; Morewood v. Inequist, 23 How., 494, 16 L. ed. 517; The Belfast, 7 Wall., 624, 19 L. ed. 266; Cunningham v. Hall, 1 Cliff., 43; Young v. The Orpheus, 2 Cliff., 29; The Norway, 3 Ben., 163; The Revenue-Cutter, 21 Law Rep. 24.

It is true that there has been a constant tendency to throw off the fetters imposed upon the admiralty courts by the English tradition, and that, by a series of decisions, culminating in the case of The Ins. Co. v. Dunham, supra, and Wilson v. Bell (The Lottawanna), Oct. Term, 1873, ante, 259, it is now settled that, as to locality, the admiralty jurisdiction extends not only to the main sea, but to all the navigable waters of the United States, whether land-locked or open, salt or fresh, tide or no tide; and that as to contracts, the fundamental inquiry is, whether it is or is not a maritime contract; and that that question depends not

upon where the contract was made, but upon its subject-matter.

It is enough to say that during all the changes of opinion manifested by the court, the positions then taken upon this particular point have never been impugned or modified.

If every contract relating to the building of a ship, steam boat, ferryboat or canal-boat or other structure intended to float upon the water, is a maritime contract, then the jurisdiction of the admiralty courts will indeed be widely extended.

If a man built two engines just alike, and sold one to turn the wheels of a boat, and the other to turn the wheels of a mill, one would be a maritime contract and the other not.

The state law gave a lien for materials so furnished, as it does for materials for a house

or dock.

used in building a ship, for which that law gave The contract for furnishing materials to be fore, the law, giving the lien and prescribing a lien, was not a maritime contract, and, therethe remedy, is not invalid, and the judgment of the Court of Errors ought to be affirmed.

Mr. Justice Clifford delivered the opinion of the court:

Judicial power, as vested in the Federal Courts was created by the Constitution; and the Constitution provides, among other things, that the judicial power shall extend to all cases of admiralty and maritime jurisdiction, and the District Courts, as provided by the 9th section of the Judiciary Act, have exclusive original cognizance, except where the common law is competent to give to suitors a remedy of all civil cases of admiralty and maritime jurisdiction, including all seizures under laws of imposts, navigation or trade, where the seizure is made on waters which are navigable from the sea by vessels of ten or more tons burden, within their respective districts as well as upon the high seas.

Certain persons named in the record contracted with a firm composed of two ship-builders to build for them a center-board schooner, of the dimensions and for the price specified in the written agreement referred to in the declaration. By the terms of the agreement, payments were to be made by installments as follows: $2,500 were to be made when the keel was laid; $3.000 when the frame was up; $3,500 when the vessel was sealed, deck beams in, and she was kneed off; $3,500 when her poopdeck was completed; $2,000 when she was ready to be launched, and the balance when she should be delivered. Individual owners were to pay for the respective installments in proportion to the interest they respectively represented, the contract price for the vessel when completed being about $21,000.

Large advances, it seems, were made to the first named contractor, even greater than the contract price, whether before or after the work was commenced does not appear; but it does appear that he subsequently assigned the original contract to the first-named defendant, together with all his right, interest and claim unto the same, authorizing and empowering the assignee to take possession of the schooner and to complete the building of the vessel.

Work done or materials or articles furnished in that State for or towards the building, re

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