may well be, if the lien exists only by the law of the State under which the vessel has been already sold, that it cannot be afterwards enforced against the vessel, because in this case the right which the law of the State gave has been taken away by the giver.1

As to the power of admiralty to decree a sale of a ship for wreck, unseaworthiness, decay, or any similar cause, on petition of the master and proof of the fact, there seems to be some doubt. The common-law courts of England, who do not deny the efficacy of a judicial sale by admiralty, in cases where suits are brought in rem, and who have held such a sale as even prevailing over the right of seizure by the crown for a previous forfeiture,2 do, nevertheless,

would, however, notice one point taken by Nelson, J., which we consider as opposed to the first principle of a proceeding in rem; namely, that notice in some form must be given to all parties interested. The objection is overcome by saying that the owner of the vessel appeared and contested the proceedings throughout. But this is surely a novel doctrine to say that therefore the rights of all parties are concluded. Since the above was written, we have met with the learned opinion of Judge Treat, concurred in by Mr. Justice Catron, in which the law is stated as follows: "The acts of the various States creating municipal liens, - providing, as many of them do, for their enforcement in suits instituted against the vessels by name, instead of against the owners, prescribing, too, the modes of proceeding therein, and of divesting those municipal liens, declaring the rules of priority among domestic creditors, ordering the sale of the vessel and the appearance of the specified lien creditors to urge their demands against the proceeds when brought into the State courts, do not make those proceedings properly suits in rem, or give to those courts admiralty powers or jurisdiction. Hence, the judicial sales made under such acts by the order of State courts, divest only the liens created by those acts, and the municipal liens embraced within their terms. The purchaser in such cases takes, cum onere, as to existing maritime liens, and as to the municipal liens of other States." Hill v. The Golden Gate U. S. C. C. Missouri, 6 Am. Law Reg. 273, 302. See also Riggs v. The Sch. John Richards, 1 Newb. Adm. 73; Harris v. The Steamboat Henrietta, 1 Newb. Adm. 284; Ashbrook v. The Steamer Golden Gate, 1 Newb. Adm. 296.

1 Ashbrook v. The Steamer Golden Gate, 1 Newb. Adm. 296. Some of the libellants, in this case, sought to enforce liens under the general maritime law, and others liens under the statute of Missouri. The vessel had already been sold in a suit under that statute in the State court, and the question was as to the effect of the sale. The statute declared that the boat or vessel should, in the hands of the purchaser and his assigns, be free and discharged from all previous liens and claims under the act. The court held that the vessel was not liable after the sale for the claims of those who had a lien only under the statute, but that it was liable to those who had a lien under the general maritime law.

See Attorney-General v. Norstedt, 3 Price, 97.

very positively refuse to sanction any such sale for disaster or decay, on petition of the master. But Lord Stowell has declared that the courts of admiralty ought, in his judgment, to possess this power, and to be sustained in this exercise of it; but still held that they did not possess it. It might be expected that the admiralty of this country would assert this power. In one case it was so held; but it was also held that although the court had full power to decree such sale on the application of the master, yet it would not be conclusive against either the owner or third persons. And the courts of admiralty in neither country would hold such decree of sale as conclusive on the subject; or equally conclusive with one which was made necessary by a suit in rem.

Closely connected with this subject is that of surveys. A survey is often a document of great value in cases of insurance and loss, and in questions of a sufficient necessity of repair to justify loans on bottomry. And when a sale has been made by a master, or still more perhaps, when a master requests the interposition of a court of admiralty, to decree or justify a sale, then the survey becomes of the highest importance. It is a mercantile measure, with which all masters and merchants are familiar; and the courts of common law as well as of admiralty fully recognize its value.5 It should be noticed, however, that no report of surveyors is itself evidence at law, unless under peculiar circumstances. And if it were received as evidence in admiralty, as it would be for some purposes, its authority and efficacy would depend upon many cir

1 Reid v. Darby, 10 East, 143; Morris v. Robinson, 3 B. & C. 196.

The Fanny & Elmira, Edw. Adm. 117; The Warrior, 2 Dods. 288, 293; The Pitt, 1 Hagg. Adm. 240.

The Sch. Tilton, 5 Mason, 465, 474; Janney v. Columbian Ins. Co., 10 Wheat. 411, 418; Dorr v. Pacific Ins. Co. 7 Wheat. 581; Armroyd v. Union Ins. Co. 2 Binn. 394; Steinmetz v. United States Ins. Co., 2 S. & R. 293; The Dawn, Ware, 485, 487.

The Henry, Blatchf. & H. Adm. 465. See Robinson v. Clifford, 2 Wash. C. C. 1.

The Fortitude, 3 Sumner, 228, 261; Janney v. Columbian Ins. Co., 10 Wheat. 411, 417; The Warrior, 2 Dods. 288; Gordon v. Mass. Ins. Co. 2 Pick. 249; Orrok v. Commonwealth Ins. Co., 21 Pick. 456; Wright v. Barnard, 2 Esp. 700.

See Hall v. Franklin Ins. Co., 9 Pick. 466, 477, and cases cited, 2 Parsons on Ins. 529, n. 1.

cumstances, as upon the character of the report itself, and especially upon the careful observance of all rules and usages which are, as it were, established by the law merchant in relation to the calling of the survey, the appointment of surveyors, the manner of their proceedings and the making up of the report, because these rules are found to be of much use in making the report correct and trustworthy. Thus, the reasons for calling the survey should be plainly set forth; it should be called by one having authority as port warden, if there be any such officer in the port, or by a consul or commercial agent, or in the absence of these, by some one of proper standing and character. The surveyors should be responsible and skilful men, with the knowledge and experience the service requires. They should proceed carefully and examine thoroughly; and in their report detail the steps they take, and give, not their conclusions only, but their reasons for them, and the facts on which these reasons rest.1

To return, however, to a judicial sale of a ship by order of admiralty, a difficult and perhaps undetermined question arises, to which we have already given some consideration. It exists when part-owners who hold a moiety in interest petition a court of admiralty to decree a sale of a ship against the will of other and dissentient owners. By an early case in England, it appears that a suit had been instituted in admiralty by part-owners, constituting a minority in interest, praying that the ship might be sold, or that they might have some other remedy, as the court might deem proper; and the other part-owner applied to the King's Bench for a prohibition. Lee, C. J., said: "The admiralty has no jurisdiction to compel a sale, and if they should do that, you might have a prohibition against selling, or compelling the party to sell, or to buy the shares of the others." The reporter adds: "Which was agreed to per totam curiam, and the rule as to that was made absolute, but as to compelling a security to be given, the rule was discharged." And so the law seems to be settled in England. But in this country, the current of authority, and, as we think, of reason, is in favor of the admiralty possessing this power, on the ground that it is one of the natural and essential elements of admiralty jurisdiction, which belongs to it by the common consent

2

1 See cases supra.

2 Ouston v. Hebden, 1 Wils. 101.

of the maritime world, and is expressly incorporated in many maritime codes, and was taken from or denied to admiralty in England by the King's Bench without any sufficient reason or authority. It is true that one of the ablest and most learned judges in admiralty we have ever had, refused to exercise this power, and denied the jurisdiction of the court. In that case the part-owners were equally divided, each of them wishing to employ the ship upon a voyage which the other disliked; and we must confine his remarks to the circumstances of the case. And when that very case was taken by appeal to the circuit court, Mr. Justice Washington, although declaring that when he had first read Judge Hopkinson's decision he was entirely satisfied with it, finally reversed the decree, and ordered the sale, being convinced by the arguments offered and a further investigation, that the court possessed the power and ought to exercise it in such a case as that then before them.2

In the District Court of South Carolina, in 1793,3 and in the District Court of Maine, in 1851, similar decisions have been made. And Mr. Justice Story, in his work on Partnership, examines into the question, and expresses a decided opinion that the American courts of admiralty possess this power, and that it belongs essentially to their jurisdiction. And upon the whole,

we cannot doubt that our courts would, generally, at least, adopt similar views.

After a sale is made by order of a court of admiralty, the court will not, except in a very peculiar case, set the sale aside, and it is doubtful whether they would do so in any case.

1 1 Davis v. Brig Seneca, Gilpin, 10. See also Willings v. Blight, 2 Pet. Adm. 288.

Davis v. Brig Seneca, 18 Am. Jurist, 486.

Skrine v. Sloop Hope, Bee, 2.

The Vincennes, decided by Judge Ware, but not reported. We are informed that in this case there were three part-owners, one owning a moiety, and the other two a quarter each. The owner of the moiety was in possession, and was ship's husband, but the parties disagreed as to the voyage, and on application of the two part-owners of the one moiety, the vessel was ordered to be sold. • Story on Partnership, § 438.

• Pease v. The Propeller Napoleon, 1 Newb. Adm. 37.

CHAPTER XI.

OF THE EQUITY JURISDICTION AND PRACTICE OF COURTS OF ADMIRALTY.

COURTS of admiralty are not, strictly speaking, courts of equity; thus, if a libellant disclose that his case rests upon a trust, he, in general, destroys his own right of action in admiralty, because the court cannot take cognizance of a bill in equity in the disguise of a libel in admiralty. But they have still very general and extensive powers, analogous to those which belong to courts of equity, and in general govern themselves by similar principles.2 Thus no party prevails there who does not come into court with clean hands and make out a case ex æquo et bono.3 So a condemnation

1 Davis v. Child, Daveis, 71, 80. In Andrews v. Essex Ins. Co. 3 Mason, 6, it was held that although a court of admiralty had jurisdiction over a contract of insurance, yet it could not reform the policy, that being the province of a court of equity. Mr. Justice Story said: "To be sure, in a certain sense, and in the exercise of their general jurisdiction, courts of admiralty may be said to be courts of equity, that is, courts proceeding ex æquo et bono, and not confined to the narrow notions of the common law. But courts of admiralty have no general jurisdiction to administer relief as courts of equity. They cannot entertain an original bill or libel for specific performance, or to correct a mistake, or to grant relief against a fraud, though they may perhaps, sometimes, like courts of law, perform what may be deemed analogous functions. They may give the same benefit, as if there were no fraud or mistake, or omission of performance; but this can be in a few cases only, which fall in all their circumstances completely within their general jurisdiction." See also Bernard v. Hyne, 6 Moore, P. C. 56, 74, per Lord Langdale; The David Pratt, Ware, 495, 500; Deane v. Bates, 2 Woodb. & M. 87, 92; Kellum v. Emerson, 2 Curtis, C. C. 79. In this latter case the rule is said to be, that a court of admiralty has not the equitable jurisdiction of a court of chancery, but merely applies principles of equity to subjects within its jurisdiction. And in Kynoch v. S. C. Ives, 1 Newb. Adm. 205, the court refused to decree the specific performance of a contract for the sale of a ship.

In Brown v. Lull, 2 Sumner, 443, 449, the court said, concerning mariners' contracts: "Courts of admiralty are not, by their construction and jurisdiction, confined to the mere dry and positive rules of the common law. But they act upon the enlarged and liberal jurisprudence of courts of equity; and, in short, so far as their powers extend, they act as courts of equity."

In The Schooner Boston, 1 Sumner, 328, 341, Story, J., said: "I take it to