the

position to a judgment of this court; or by the person acting as master by virtue of an appointment derived from the pretended owner? Did the Government, the Marshal, or the Collector, previous to the sale to the claimant, recognize Mr. Schribner, as the owner, or Lightbourne as his master? Mr. officer, representing the government, contended, and this court decided on a former occasion, that the claim of Scribner was totally unfounded, and that the ship antecedent to the sale to Mr. Dearborn, was never out of the legal custody and possession of the Marshal. Upon what ground of law, reason, or justice, then, can this ship in the possession of the present owner be made liable for antecedent repairs? By parity of reasoning, she could be charged specifically, for repairs and supplies in England, or any other contract previous to her condemnation, which operates as alien.

It results, that the remedy which these libellants have is confined to the persons who contracted with them, and that the ship is discharged.

STEPHENS, J. This ship is libelled for sundry articles, work done and for a claim of wages due several seamen; to avoid a multiplicity of suits several claims are consolidated so as to bring the demands of all or either before the court, against the jurisdiction of which a plea is interposed in the claims of J. H. Dearborn. It was necessary to have a full knowledge of this case, not only to hear argument as to the jurisdiction, but to have authenticated and proven the demands of such of the libellants as were principally before the court, and from which investigation the following facts appears. The ship Levi Dearborn was formerly called the Little Sally, a ship owned by British subjects, libelled by the United States for violating the non-intercourse law, and condemned as forfeited to the United States, in form, and decreed by this court to be sold: which was carried into effect. It appeared that Mr. A. W. Scribner was the first purchaser of this vessel, and had permission from the collector to proceed to lade her, but it also appeared that Scribner failed to comply with his contract, whereby the Marshal re-advertised the ship, upon which some compromise took place between the parties interested, and John H

Dearborn became the purchaser, received the Marshal's title and on the 19th of June last received a register for the said ship from the Custom-house in Savannah. From the time Mr. Scribner undertook to be the owner of this ship he employs Capt. W. Lightbourn as master, and proceeds to prepare the vessel for sea, under the name of the Franklin. An account is opened with Woodruff and Brant for ships articles as appears by the exhibit, as also supplies of cordage by Fountain, and work and labour by Hewit a shipwright. All these accounts were opened by express direction of Scribner, and they are admitted to be just by Lightbourn the captain. It is also in evidence that at the time John H. Dearborn purchased this vessel he was apprised of some demands against her by the collector, which were satisfied, and hence became a fair bona fide purchaser. So far as the above relates to the libellants mentioned, appears to be the summary of their case. The demands of seamen will form another subject of enquiry to see if they can proceed for their dues in this

way.

The variety of authorities adduced to support the libel, and those opposed to it, it should seem have compressed all the reading on the subject, and which has been illustrated with great ability by the gentlemen on both sides; indeed, so much so as to leave very little research for the Judge on a question of real im. portance taken in every point of view.

It is to be understood that this court is of special jurisdiction and its exercise can only extend to maritime cases.

All the transactions between these libellants were with Scribner, the actual and reputed owner living in Savannah, the ship was on no voyage that caused the injury to repair her, or for the supplies to aid her, so as to create any lien on the vessel whatever the whole was a contract within the body of the county, a part of a sovereign state, whose constitution and laws afford daily an opportunity to seek redress in the very many tribunals of justice in this city.

Now as I cannot see this case to be of admiralty or maritime jurisdiction so as to work a lien on a ship lying in the river, because labour was bestowed and supplies furnished the person who exercised an ownership, and at his instance, I cannot sustain the

libel and subject, a vessel in the possession of a bona fide purchaser for valuable consideration, to claims which he never could have supposed to have attached to the ship.

The various opinions that have been afloat on the points before me, seem now to be very well understood and the reading and result well digested in the case before Judge Bee, of Shrewsbury and the sloop Two Friends, in Charleston, a case very similar to the present, and therefore the redress to the libellants must be at common law. The libel is dismissed, each party paying his

own costs.

As to the seamen, I find there is no ship articles or agreement signed by them, but they were daily labourers. They must be referred also to those who employed them, as divers others, who 'exhibited demands for various supplies to this ship.

Savannah, 17 July, 1811.

Mr. Noel, for Libellants.

Mr. Charlton, for Claimants.

W. STEPHENS,
Dis. Judge, Georgia.

CIRCUIT COURT OF THE U. S. GEORGIA.

DECEMBER TERM, 1811.

Woodruff & Brant, and Others, versus The Ship Levi Dearborne.

APPEAL FROM THE DISTRICT COURT.

The libel charges, that the ship is answerable specifically for materials furnished and work done, in refitting her, between the ninth of May and the seventh of June, 1811. That the ship Levi Dearborne, formerly the Little Sally, a British bottom, was forfeited to the United States, and a sale decreed to be made, on the eighteenth of April, 1811-that she remained unsold-that the materials and work were furnished by request of the master.

The claim states that the ship was forfeited, for a violation of the non-intercourse laws, and sold on the 18th of April, 1811.That the terms of sale not being complied with, she was resold on the 18th of June last; when the claimant (Dearborne) became the purchaser, and received from the Marshal, a bill of sale, dated April 18th. That he purchased on the faith of the government and its officers, without being notified of the supplies and repairs alleged in the libel. That Captain L. did not take charge of the ship, by authority from the claimant, nor was he authorised by the claimant to direct the supplies and repairs, but received his authority from Scribner, who was in possession.

Mr. Noel for the libellant. It is alleged in the libel and proved by the testimony, that when the materials and repairs were furnished, there was no responsibility to the libellants, except that of the ship. There was no actual ownership or existing operative title. The right acquired by the government, by seizure and condemnation, before sale, was imperfect. Scribner was in possession for a short time, but without title-he had not paid the purchase money. The actors in this suit did not know, or treat with Scribner, as the owner-they furnished the materials and work on the sole credit of the ship. The claim admits that Scribner was not the owner, and it is not proved that Scribner had assumed payment. Captain Lightbourne did not call for the repairs and materials, on the credit of any other person, but as master of the ship.

2d. The appellants have a specific remedy against the ship, admitting the statement of facts made by the respondent. The District Court has jurisdiction, as an Instance Court of Admiralty, to make the ship liable for repairs and materials. This jurisdiction is derived from the Civil Law. In maritime cases, the Courts of the United States are governed (except in questions of prize) by principles of the Civil Law, or by positive Statutes. Every man who has repaired or fitted out a ship, or lent money to be employed in those services, has by the civil law, a lien on the ship. Abbot, p. 151. Domat. B. 3d. It may be said that the maritime law is a part of the common law of Great Britain, and that the Common Law is the law of the United States, where not superseded by positive statutes. The correctness of these positions shall be considered, after having taken notice of the British adjudications, upon this subject.

There is no rule of the Common Law, which makes property subject to specific liability, or creates a lien by implication, as a security for the performance of a contract or payment of debt. This is a remedy peculiar to the Civil Law. The exercise of it by the Courts of Admiralty, early became a source of jealousy, and produced the statutes 13th and 15th Richard II. Yet, we find, that even the Courts of Common Law disregarded the restrictions intended by those statutes, for several centuries after they were enacted. It has uniformly since been held, that suit may be main