Argument for Appellees.

wanna, 21 Wall. 558; Tug Boat, E. P. Dorr v. Waldron, 62 Illinois, 221; The Mary Bell, 1 Sawyer, 135; The Josephine Spangler, 9 Fed. Rep. 773; The Marcelia Ann, 34 Fed. Rep. 142; The Madrid, 40 Fed. Rep. 677.

The reasons why a maritime lien is given for supplies furnished in a foreign port, are obvious. To promote commerce and enable vessels in a foreign port to procure without delay needed supplies, there is a necessity for the pledging of the credit of the vessel. Vessel owners usually have no credit in a foreign port, and, if material-men in a foreign port had to inquire into the credit of the owner residing in the home port, or ascertain whether any mortgage was or was not there recorded, great delay and great loss to commerce would inevitably result. To make such inquiries in the home port, by material-men residing there, would cause no loss or delay, but would, on the contrary, save in many cases very great loss. The Madrid, 40 Fed. Rep. 677.

There is no allegation or proof that the supplies, repairs or services furnished in this case were necessary, or that they were furnished on the credit of the vessel. Under the general maritime law a lien could not attach in the absence of those facts. The Grapeshot, 9 Wall. 129; Pratt v. Reed, 19 How. 359; The Lady Franklin, 1 Bissell, 557; Williamson v. Hogan, 46 Illinois, 504; The Rapid Transit, 11 Fed. Rep. 322. In the opinion in the latter case it is said: "It seems to me a fair implication that whenever a State attaches a lien to a maritime contract to be enforced in the admiralty, whatever would operate under the maritime law of that court to waive, forfeit or postpone a lien of like character, whether considered in its relation to liens of another grade or in its relation to other liens in the same grade, should have the same effect on the lien created by the State, and that it is intended that the strict letter of the statute should be so construed."

II. The appellants have no lien other than the one given by the Illinois Statute of 1874, and such lien is subject to the prior mortgage of appellees.

Being a statutory and not a maritime lien, the question of its effect and extent depends, in a very great measure, upon

Argument for Appellees.

the statute creating it. The statutes of the various States differ materially in their several requirements necessary to create a lien, and also in the extent and effect of the lien created. These different requirements have been recognized by the Supreme Court of the United States in the case of The Lottawanna, 21 Wall. 558, where the requirement of the Louisiana statute for the recording of a lien not having been complied with, it was held that no lien was obtained. And

in the case of The Edith, 94 U. S. 518, it was held that the rights of the parties under the New York statute were governed and limited by the provisions of that statute. See also The Marcelia Ann, 34 Fed. Rep. 142.

In 1869, Judge Drummond, in deciding The Grace Greenwood, 2 Bissell, 131, said that, under the Illinois Statutes, such a mortgage as that of appellees would be "a valid and binding security upon the property, and one which the claims of material-men, under the state law, cannot supersede or override, and that the mortgage took precedence over supplies in the home port."

Judge Drummond again decided the same question in the same way in the case of The Skylark, 2 Bissell, 251, and said: "I wish it distinctly understood that I shall not hold, unless told to do so by the Supreme Court of the United States, that every claim which a state legislature may declare to be a lien against a vessel, shall override a mortgage properly recorded under the law of Congress."

In the case of The Kate Hinchman, Judge Blodgett, in the District Court, decided the same way. On appeal to the Circuit Court, Judge Drummond affirmed the decree of the District Court, and said, that although a lien existing only by the state law could be enforced in admiralty, "it by no means follows that, because a law of the State gave a lien, it is superior to a mortgage. It seems to me, as between these different liens existing in this case, that of the mortgage is paramount." 7 Bissell, 238.

Since the first decision of Judge Drummond in 1869, the question has been decided repeatedly in the Seventh Circuit in the same way, in spite of the numerous times when the

Argument for Appellees.

proctors, for negligent material-men, have endeavored to obtain the adoption of a contrary decision. Appeals have been taken from the District Court and argued four times in the Circuit Court of the Seventh Circuit, on one occasion before Justice Harlan, but the judges hearing such appeals have invariably refused to reverse the former decisions.

Upon two occasions the question has been passed upon by the Supreme Court of Illinois, and decided in the same way. In the case of The Great West (No. 2) v. Oberndorf, 57 Illinois, 168, the court held that the lien of the material-men upon vessels for supplies furnished in the home port was inferior to that of a prior mortgage. This decision was followed by that of The Hilton v. Miller, 62 Illinois, 230, in which the court says, that a prior mortgage of a vessel has precedence of the lien of a material-man subsequently acquired, is settled by the case of the Barque Great West (No. 2) v. Oberndorf, 57 Illinois, 168, The Illinois law, at the time of these decisions, was construed in the case last mentioned to create a lien on the vessel, which is all that the present statute of 1874 does.

The liens given in the various States are given by widely different statutes. The rule in Louisiana, for instance, is essentially different from that of Illinois. The lien given by the Illinois statute is a secret one, existing for the period of `nine months without requiring any notice to be given of it to any person, or the filing or recording of any such notice. The statute of Louisiana on the contrary, provides that such lien shall have no preference over third persons, unless it has been recorded in the parish where the vessel is, on the day when the contract was entered into. In the case of The Lottawanna, already cited, this recording was held essential to obtaining any lien.

The statutes of many other States also require, as a condition to the maintenance of a lien in similar cases, the filing or recording of a notice of the lien.

In North Carolina notice of the lien has to be filed in the same manner as notices of other statutory liens are.

In Massachusetts the lien is conditioned upon the filing of

Argument for Appellees.

a sworn statement of the claim with the clerk of the city or town where the vessel was, within four days after the vessel departs from port.

In South Carolina a similar statement has to be filed with the clerk of the Court of Common Pleas within the same time.

In Maryland also a statement of the claim must be filed under oath with the clerk of the Circuit Court.

In New York specifications of any such claim must be filed in the office of the clerk of the county in which the debts were contracted, and in the office of the auditor of the canal department, within thirty days after the debt was contracted.

In Pennsylvania the lien continues only between the contracting of such debts and the time when the vessel proceeds on her next voyage.

In Mississippi the case of The Josephine Spangler, 9 Fed. Rep. 773, held, that materials and supplies furnished at the home port are only liens, by force of the State's statutes, and therefore do not stand on the same footing with maritime liens, so that their priority depends upon whether they attach before or after the mortgage lien commenced. This position is sustained by Judge Drummond in The Grace Greenwood, which was followed by Judge Blodgett in The Kate Hinchman, and again by Judge Woods in The John T. Moore, 3 Woods, 61. This is still the rule in Mississippi and Maryland. The Marcelia Ann, above cited. See also as to the law of Ohio, Scott's Case, 1 Abbott U. S. 336.

Not only do the various state statutes differ in regard to the giving of notice of the lien claim, but they also differ materially in the effect and scope of the lien.

In Maryland the lien is not entitled to priority over a prior mortgage or bill of sale. In Vermont it has "precedence of all other claims and liens." In Pennsylvania it is to be "in preference to any other debt due from the owners" of the vessel. In New York it is provided that it shall be preferred to all other liens thereon, except mariner's wages. The Canada, 7 Fed. Rep. 730. In Massachusetts the lien is "preferred to all others on such vessel except that for mariner's wages." And so also in South Carolina. The Island City, 1 Lowell,

Argument for Appellees.

375. In Missouri such liens shall have precedence of all other liens and claims against such boat or vessel. In Kentucky the statute of 1852 gave the local lien preference over all other liens of like character, for work done out of the State (Kentucky), thus preferring them to maritime liens for supplies. The Rapid Transit, 11 Fed. Rep. 332. In Oregon the liens have precedence over all other liens and claims against such boat or vessel. In California they have preference over all other demands. The Harrison, 1 Sawyer, 353.

The statute of Illinois simply gives "a lien," so that no decision can be properly considered as contrary to the decisions in Illinois unless it appears that it was rendered upon a state statute in all respects similar to that of Illinois, giving a simple secret lien.

In 1872 the same question was presented for decision, in the Privy Council on appeal from the High Court of Admiralty, in the case of The Two Ellens, L. R. 4 P. C. 161. In an interesting opinion Lord Justice Mellish then said, p. 166: "There have been several cases in the Court of Admiralty on this point, and the decisions are to a certain extent conflicting.

The question has to be determined by their lordships, and it may be said, perhaps, that as far as authority is concerned, the authorities are very equally balanced." After a full discussion of the English cases the court decided in favor of the priority of the mortgage over claims for repairs and supplies.

In 1884 the question was again presented to the Privy Council, and decided in the same way, in the case of The Rio Tinto, 9 App. Cas. 356, so that the law of England as settled by the court of last resort is now that the claim of the mortgagee is superior to that of the domestic lien holder.

III. By repeated decisions in the Seventh Circuit, the priority of a prior mortgage over home supplies has become established, as the lex fori, and such priority is a right of property. The Lottawanna and The Madrid, above cited.

Whether one lien is entitled to priority over another depends upon the lex fori. The Union, Lush. 128; The Selah, 4 Sawyer, 40. The priority of liens in admiralty is according