lien holders of the lowest rank to contest those of the highest, the rule ought to be amended.

§ 545. Proceeding Contradictorily. What right had even the seamen libellants, (appearing to vindicate a maritime lien of very high rank,) to judgment against the steamboat, without proceeding contradictorily with all appearers who had responded to invitation and avoided default? The validity of the decree in their favor was dependent upon the validity of the notice to all persons, and upon a trial with all the world as well as against the res.

What is the significance of the special "due notice to the adverse parties, if any," unless it implies that the first notice under which, holders of maritime liens may appear is insufficient to cite "all persons having or pretending to have any right, title or interest in or to the property libelled," to appear and assert their interests?

Chief Justice MARSHALL said: "It is a principal of natural justice of universal obligation, that before the rights of an individual be bound by a judicial sentence, he shall have notice, either actual or implied, of the proceedings against him.”1

Mr. Justice STORY said: “If a seizure is made and condemnation is passed without any public notice of the proceedings, so that the parties in interest have no opportunity of appearing and making defense, the sentence is not so much a judicial sentence as an arbitrary edict." And further: "If it does not appear from the face of the record of the proceedings in rem that due notice, by some public proclamation, or by some notification or monition, acting in rem or attaching to the thing, so that parties in interest may appear and make defense, and, in point of fact, the sentence of condemnation has passed upon ex parte statement without their appearance, it is not a judicial sentence conclusive upon the rights of foreigners;" and he might have included those of citizens.

Any other jus ad rem existing under a State law, or under a law of the United States, is entitled to enforcement against that

The Mary, 9 Cr. 126.

2 Bradstreet v. The Neptune Ins. Co., 3 Sumner, 607. Vide, ante, Book

i., chap. vii., "NOTICE," and cases cited therein.

upon which it rests, just as is the custom-house mortgage lien. We have used the latter by way of illustration for all non-maritime liens.

All such ordinary liens rank below maritime liens in the admiralty court. Though holders of the former have an interest in contesting the latter, and in putting the evidence of them to the test, yet they cannot enforce their rights till all the latter, if established by proof, have been satisfied.

It is sometimes

Manifestly no mere ordinary creditor of the owner of the res can intervene in the action in rem in admiralty, (as indeed he could not in a case in rem at law,) for the reason that he has no jus ad rem. § 546. Law or Admiralty Jurisdiction? difficult to decide whether a lien partakes of the maritime character, and whether action upon it should be instituted in admiralty or at law. Without recurring to cases concerning repairs and supplies to vessels in home ports, sufficient illustration of the nicety of questions, arising in practice, may be drawn from decisions in other causes. While a State statute lien for building a ship has been usually held vindicable only at law, the common-law lien of a shipwright, who retained possession of the vessel he had built, has been enforced in admiralty.1 The navigation of a raft of logs, on navigable waters, has been held not to create an admiralty lien; but it has also been held that such a raft, rescued when found floating upon navigable waters, was subject to admiralty process to enforce the salvor's lien. 8 Yet the raising of a submerged "floating dock," in navigable waters, was not deemed a salvage service. 4 While the vindication of an alleged lien for general average was denied, it was intimated that, had the libellants held possession of the res, there would have been a common-law lien, and that it would have been enforceable in admiralty.5 Whether there is a mari

1 The B. F. Woolsey, 7 Fed. Rep'r, 108; The Marion, 1 Story, 68.

2 A Raft of Logs, 9 Chic. Leg. News, 26. See A Cypress Raft, 2 Woods, 214.

8 Fifty Thousand Feet of Timber,

2 Low. 64; The Rock Island Bridge, 6 Wall. 216.

4 Salvor Wrecking Co. v. Sectional Dock Co., 3 Central Law Journal, 640.

The Mazurka, 2 Curt. C. C. 77

time lien or not, and therefore whether the jurisdiction is in admiralty or at law, seems to have been differently held in cases where there was a breach of charter-party concerning goods which were never put upon a ship.1

2

Under State statutes, the question of the maritime character of a lien is often very nice. Actions under such statutes, for. damages because of tort on navigable waters, resulting in death, have been maintained in admiralty, and have also been maintained at law. Tolls imposed upon vessels by State statute, have been held of maritime character, where the lien was expressly authorized; and, under State pilotage laws, the maritime lien has been held to exist in the absence of expression;* and it has been held that the maritime lien may be created by implication. 5

Claims presented for light money; for hire of anchors, cables, boats, sails, etc.; for quarantine expenses; for labor in cutting through ice; for scraping the ship's bottom; for labor of stevedores; for various services, if rendered upon the credit of a ship or steamboat, come properly under admiralty jurisdiction, by way of intervention at least certainly come under such jurisdiction when urged against remnants.

1 Oakes v. Richardson, 2 Low. 173; The Asa Eldridge, 8 Fed. Rep'r 720.

2 Ante, chap. xlix., and cases there cited; The Garland, 5 Fed. Rep'r, 924; In Re Long Island, etc., Trans. Co., Id. 607; The Catsop Chief, 8 Id. 163; The Sylvan Glen, 9 Id. 335.

The St. Joseph, 10 Chic. Leg. News, 269.

The California, 1 Saw. 463; The Glencame, 7 Fed. Rep'r, 604.

5 The America, 1 Low. 176; The Geo. T. Kemp, 2 Low. 485; The Guiding Star, 9 Fed. Rep'r. 521.

CHAPTER LIII.

THE ACT OF CONGRESS TO PROTECT LIENS BY AUTHORIZ ING INTERVENTIONS IN CASES UNDER THE INSURRECTION LAWS.

§ 547. The Statute of Congress Allowing Lien Holders to Intervene. Authority is expressly given by Congress, to mortgagees and all lien holders to assert their claims against Things Indebted when those things are proceeded against as hostile, provided they bring themselves within the act authorizing such intervention; and jurisdiction is, by statute, conferred upon the United States courts, to enforce liens and foreclose mortgages against such property. Whenever hostile property is indebted, and is seized for confiscation as hostile, the indebtedness may be sued upon by way of intervention between the libellant and the res, by the mortgagee or other lien holder or privileged creditor. While such property, as to the government, is hostile, it is, as to the creditor, indebted property. The hostility, in such case, has reference to the sovereign: the indebtedness, to the creditor. It is in place to consider interventions to enforce

liens against hostile property, here in this book devoted to Indebted Things.

The statute by which lien holders are allowed to intervene in confiscation proceedings, and by which United States District Courts have original jurisdiction to adjudicate such interventions and to foreclose mortgages, 1 applies to all three of the confiscation acts: that of July 13, 1861, with its amendment of May 20, 1862; that of August 6, 1861;4 and that of July 17, 1862, with its "Resolution Explanatory" of the same date. All of these confiscation statutes concern enemy property; and Congress, to protect liens and mortgages resting upon such hostile property, authorized, by the act of 1863, above cited, the creditor to assert against such indebted-hostile things, his jus ad rem, and expressly gave him rank above the government, since it is enacted that "the court rendering judgment of condemnation shall, notwithstanding such condemnation, and before awarding such ship, vessel or other property, or the proceeds thereof, to the United States or to any informer, first provide for the payment, out of the proceeds of such ship, vessel or other property, of any bona fide claims which shall be filed by any loyal citizen of the United States, or of any foreign State or power at peace and amity with the United States, intervening in such proceeding, and which shall be established by evidence as a valid claim against such ship, vessel or other property, under the laws of the United States or of any loyal State thereof."7 And it is further provided that claimants who have illegally used such property shall be not allowed to intervene and that claims must be such as might have been specifically enforced: i. e., they must not be ordinary personal debts, but property debts, such as liens or mortgages.

§ 548. Jurisdiction Confined to United States Courts to Foreclose Mortgages, Etc., Against Confiscated Property. Jurisdiction is conferred by this statute, upon the Federal courts to

1 U. S. Rev. Stat. § 5322; U. S. Stat.

at L., vol. xii., p. 762.

2 12 Stat. at L., p. 256.

8 Id., 404.

* Id., 319.

Б

" Id., 589.

• Id., 627.

7 R. Stat. U. S., § 5322; 12 Stat. at L., 762.