The ship Robert Fulton.

premises, prayed the advice and protection of the Court, in regard to their priority of claim, in virtue of the said attachment; and that if the Robert Fulton should be condemned under a decree of the Court, the proceeds of the sale might be first applied in payment of the claimants' demand and costs, and for other relief.

The claim of Edwin Bergh and Beach Ivers stated, that on the 11th of May, 1826, they had attached the vessel, under the act of the state, and that she was in the custody of the Sheriff: That she was a domestic ship, and the supplies for which she was libelled, were furnished in the port of NewYork. They therefore prayed the Court to preserve all their rights and priorities, and in the event of a sale, that the vessel should be sold subject to the claimants' lien and attach

ment.

The Court below decreed, that all the claimants, except Bergh & Ivers, and Birkbeck & Co, and Abeel & Dunscomb, (who had filed claims similar to that of Bergh & Ivers,) had by their respective claims, duly submitted themselves to the jurisdiction of the Court; and that the proceeds of the sale of the vessel should be paid over by the clerk in the following manner-1st. The costs of the officers of the Court, and of the proctors of the libellants and claimants: 2d. All the demands of the libellants and claimants, if the proceeds should be sufficient; but if not sufficient, then the libellants and claimants respectively, such amount pro rata, on their demands, as the proceeds would suffice for: And in case the said Bergh & Ivers, Birkbeck & Co., and Abeel & Dunscomb should not elect to receive their proportions, that the clerk should pay the same to the purchaser of the vessel, and they be at liberty to pursue their claims in the Court of Common Pleas, for the whole or residue of their demands, according as they should elect to receive or not their said dividends.

The ship Robert Fulton.

From this decree the claimants, Wheelwright & Johnson, appealed.

H. WILKES and E. WILKES for the appellants.

J. O. HOFFMAN for the respondents.

THOMPSON, J. THE material inquiry in this case is, whether the appellants, by their petition and claim presented to the District Court, have so far submitted to the jurisdiction. of that Court, as to be deemed to have waived all rights acquired by virtue of their attachment against the ship, under the laws of this state."

By these laws, all ships or vessels built, repaired, or equipped in this state, whether owned by residents or non-residents therein, are made liable for all debts contracted on account of any work done, or any supplies or materials furnished by any mechanic, tradesman, or others, towards the building, repairing, fitting, furnishing, or equipping the same. And such debts are made a lien on the vessel, and declared to have preference to all other debts, due and owing from the owner thereof, except mariners' wages. And any person or persons whose demands amount to one hundred dollars, may apply to a Judge, and make oath to their account, upon which the Judge is authorized to issue his warrant, directed to the Sheriff, commanding him to attach, seize, and safely keep such ship or vessel. And upon the return of the attachment, the act directs what further proceedings are to be had.

On the 11th of May, 1826, the respondents filed their libel in the District Court, against the ship Robert Fulton, on a claim for materials furnished in repairing the ship; and the usual process of monition and attachment was issued to the Marshal, who thereupon returned, that he had attached the

a Act 10th August, 1798, and the amendment, 28th February, 1817.

The ship Robert Fulton.

ship; and such further proceedings were thereupon had, that the vessel was ordered to be sold by the Marshal, and the money brought into Court, and to be distributed towards satisfying the several claims that had been put in.

By the petition and claim of the appellants, it appears, that on the 10th of May, 1826, the day before the libel of the respondents was filed, an attachment was issued by the first Judge of the Court of Common Pleas of the city and county of New-York, against the said ship, on the application of the appellants, under the state laws above referred to, which attachment was duly served by the Sheriff, on the said 10th of May, and before the filing of the libel. And the appellants pray to have their priority of claim in virtue of the attachment preserved; and that if the ship should be condemned by a decree of the Court to be sold, that the proceeds of such sale may be first applied to their claim.

There were several other claimants, who, on the same day the libel was filed, but whether before or after, does not appear, had procured attachments to be issued under the state law, by virtue of which the vessel was held under the custody of the Sheriff; and they also pray the Court to preserve their rights and priorities acquired by the attachments. And the decree of the District Court, with respect to these latter claimants, leaves it at their election to accept the pro rata distribution of the proceeds of the vessel, or to proceed in the Court of Common Pleas, under their attachments. But with respect to the appellants, no such election is given; and they are put on the same footing, with respect to their claim, as those who had not procured any attachment under the state law.

I do not perceive the ground upon which this distinction was made by the District Court. The assertion of the right and priority acquired by the appellants, under their attachment, is in substance, although not precisely in form, the

The ship Robert Fulton.

same as the others. And indeed, if any priority was acquired by proceedings under the state laws, the appellants had secured it, for theirs was the first attachment taken out and executed. This priority might undoubtedly be waived if the appellants had chosen to come into the District Court, and unreservedly submit their claims to that Court. But I do not discover that they have so done. The decree asserts, that all the claimants, except Bergh & Ivers, Birkbeck & Co., and Abeel & Dunscomb, had, by their several and respective claims, duly submitted themselves to the jurisdiction of the District Court. This appears to me to be a misapprehension, or an erroneous construction of the petition and claims of the appellants. They appeared, as they were bound to do, and set forth their claim, and prayed the protection of the Court, in regard to the priority, by virtue of their attachment. The District Court appears not to have noticed this allegation, nor to have decided whether the appellants had acquired any priority or not.

The case as it now appears is certainly involved in some difficulty. And I am unable to account for the returns, which have been made by the Sheriff and the Marshal upon the process issued to them respectively. If the Sheriff, by virtue of his warrant, had attached and taken into his possession, the ship, on the 10th of May, as he has returned, it is in no way explained how the Marshal could the day after seize and take into his possession the same vessel, and proceed to sell the same, under the orders of the District Court. The right and authority of the Sheriff, under the process directed to him, to attach the vessel, cannot be questioned, and if he had so done, the ship was in the custody of the law, and the Marshal could certainly have had no authority to take it out of the possession of the Sheriff. If he found the vessel held by the Sheriff under his attachment, he should have so returned to the District Court upon his process: And all further pro

The ship Robert Fulton.

ceedings of the District Court would have been arrested, and no conflict of jurisdiction could have arisen. The proceedings were in rem, and the sentence of the Court must act upon the thing itself, and could not be executed, unless possession of it was taken. It is the necessary result of proceedings in rem, that the thing in litigation must be placed in the custody of the law; it must be in the possession or under the control of the Court."

case.

The District Court is bound as much by these state laws as the state tribunals, and must give relief in conformity to them: And indeed in the present case the whole authority of the Court is derived from the state laws. This was a domestic vessel, the owners residing here. The District Court as a Court of Admiralty has a general jurisdiction in suits by material men in rem. But when the proceedings are to enforce a specifie lien, such lien must be established in the particular Where the claim is against a foreign ship, or a ship in the ports of a state to which she does not belong, the general maritime law gives a lien on the ship, which may be enforced in the District Court. But where the repairs or necessaries have been made or furnished in a port or place to which the vessel belongs, the case is governed by the local law of the state and no lien is implied unless given by that law. And if the local law gives a lien, it may be enforced in the District Court; otherwise not. This was the doctrine of the Supreme Court in the case of the General Smith.

That the state tribunals had authority also to enforce the lien in the present case, is very certain from the express provisions of the law. There was then a concurrent jurisdiction in the two Courts; and the proceedings under the state authority were in the nature of proceedings in rem. And the right to maintain the jurisdiction, must attach to that tribunal . which first exercises it, and takes possession of the thing in