with the above proposition (1) in any of the decisions of this court, which carry the exercise of admiralty cognizance beyond the limit marked by practice in England prior to, and at the Revolution, nor even in any of the opinions favoring such extension.

Genesee Chief v. Fitzhugh, 12 How., 455; New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How., 392; 18 How., 189.

No one at this day will propose to extend the admiralty jurisdiction to all cases which would fall within it, according to the practice of continental Europe. And unless it is defined by a reference to the true principles of that law on which our whole judicial polity is based, we shall be left without guide or precedent.

1 Kent's Com., 369, note, 8th ed. The laws of continental Europe, in respect to claims for repairs and supplies to ships or vessels, and in respect to the question of admiralty jurisdiction, do not discriminate between foreign and domestic vessels The law of England always has so discriminated, and this court has in like manner discriminated. In English and American law, the admiralty jurisdiction is confined to repairs, &c., furnished in a place other than the home port of the vessel.

The Nestor, 1 Sumn., 79; Justin v. Ballam, 2 Ld. Raym., 806, first resolution; 3 Hagg., 144 -3 Knapp P. C. R., 194; Act of 3d & 4th Vic., ch. 65, sec 6; The Alexander, 1 W. Rob., 288; Ib., 360; Ward v. Peck, 18 How.. 267; Ben. Adm., sec. 108; Zane v. The Brig Presi dent, 4 Wash. C. C., 456; The General Smith, 4 Wheat., 438; 12th Admiralty Rule of this court; 1 Curt. Com., secs. 51, 52.

The Roman civil law and the law of several modern nations, estimating less highly than the English common law the free and unrestricted circulation of property, gave a lien on solid grounds of natural equity to the producer, preserver and improver of a thing, and to him who lent money for any of these purposes. This policy extended alike to every description of property.

Cush. Domat., secs. 1741, 1745, 1765; The Nestor, 1 Sumn., 79; Bee's Ad., 78; Code Civil of Napoleon, sec. 2103, subs. 4, 5; French Com. Code, book 2, art. 191, sec. 8; Civil Code of Louisiana, art. 3194, 3204 to 3215; Vanleuwen's Roman Dutch Law, book 4, ch. 13, sec. 8.

or a foreigner is not within the reasons on which admiralty jurisdiction is founded.

The St. Jago de Cuba, 9 Wheat., 409; Shrewsbury v. The Two Friends, Bee, 435; Hurry v. The John and Alice, 1 Wash. C. C., 296; 2 Wood. & M., 110.

2. The builders had no lien by any rule of maritime law, nor by the common law, nor by any local law, nor by any contract.

The lien recognized in some of the maritime codes of continental Europe, is not admissible in this country.

They relinquished their builder's lien, under the common law, by parting with the posses sion.

There is no Statute or other local law in New Jersey giving a lien to shipwrights.

The laws of New York giving a lien to shipwrights, apply only to the case of debts contracted within the State of New York, and for work done or materials furnished in the State of New York.

2 R. S., 493, sec. 1.

The contract created no lien. The special provision on that subject contained therein was designed for other objects.

It was designed to settle this question in favor of the employer as security for his advances.

Andrews v. Durant, 11 N. Y., 45; Spanish Co. v. Bell, 34 Eng. L. & Eq., 188; Wood v. Bell, 36 Eng. L. & Eq., 148.

The second branch of this clause was designed to save the common law lien of the mechanic from the possible implication of a relinquishment, in consequence of the transfer of the ownership of the employer. The common law lien remained until the mechanic parted with the possession.

3. If any lien existed at common law, by local Statute or by express contract, it was not enforceable in the admiralty.

If there was a lien by force of the contract, it was not a maritime lien.

Leland v. The Medora, 2 Wood. & M., 107 to 113; Hurry v. The John and Alice, 1 Wash. C. C., 296; 2 Browne, Civ. & Adm. L., 116, 95; Bogart v. The John Jay, 17 How., 400: Schuchardt v. Angelique, 19 How., 241.

Where state law, either positive or customary, gives a lien. there is no ground for enforcing such lien by admiralty process.

When the lien is given by the state law, that same law provides adequate means for enforcit. i Pet. Adm. Dec., 228; The Chusan, 2 Story,

462.

Enforcing the lien of the state law by admiralty process, would lead to inconvenient conflicts of power.

The R. Fulton, 1 Paine, C. C., 623.

Furnishing repairs, &c., to foreign vessels, is the only case in which the maritime law gives a lien. That a lien for repairs, &c., in other cases is not needed, proves that such liens, when given by other laws are not in their nature maritime.

Although it has been often decided in the circuits that a lien for repairs, &c., not known to the general maritime law, and merely arising from State legislation, might be enforced in the admiralty, that point has never been conclusively determined in this court.

Peyroux v. Howard, 7 Pet., 341; The Chusan, 2 Story, 463.

The decrees should be reversed and the libel dismissed with costs.

Mr. E. C. Benedict, for appellees: 1. Liens upon vessels for maritime services to the vessel, are beneficial to the general interests of commerce, are found in natural equity, and are favored in law, especially in the admiralty.

Davies, 38, The Calisto; Crabbe, 442, The Atlantic. Emerigon, Mar. Loans, ch. 12, sec. 3. 2. The building of a vessel and the repairing of a vessel are in principle the same thing. Repairing is reconstruction pro tanto. They are both of them making fit for maritime service as a vessel, what was before unfit for that service. Both furnish to the owner a serviceable vessel for the purpose of commerce. Both are labor and materials made part of, or incorporated in the vessel of another. Both are necessaries in the legal sense of that word.

They are united and classed in the books of maritime law as like maritime causes of action, or services of the same nature, and declared to be a lien upon the vessel by the maritime law from its earliest period, "building, amending, saving, victualling."

Ben. Adm., secs. 95, 270, 271, 272: Fland. Mar. Law, secs. 242, 249; Dig., Lib. 42, tit. 6, sec. 11; 1 Boulay Paty, 121; Consulato, ch. 32; Ord de la Marine, art. 17; Cleirac, 351, 352; Davies, 29; 1 Sumn., 79; The Nestor.

The state laws give liens:

New York, for building, repairing, fitting, furnishing and equipping.'

2 Rev. Stat. N. Y., 491, sec. 1, subd. 1. New Jersey, same as New York.

Laws of New Jersey (1857), 382.

There was the express lien given by the contract, subject to a lien," &c., which was for the maritime cause of materials and labor for building.

For the work and labor done in New York, there was also a lien by the state law.

As the builders had the possession in this State as builders, they had also the common law or possessory lien in New York.

None of these liens ever existed by the mere possession or by the contract alone, but by the beneficial service to the boat, and for all these liens the remedy is complete in admiralty, because the lien has a maritime consideration or cause-the beneficial service in fitting the boat for the maritime service of the owner. No matter how the lien is acquired-if it be of a maritime character—the admiralty has the jurisdiction to enforce it.

1 Story, 68, The Marion.

5. This result of the ancient and modern authorities has, by repeated examination, become more and more clearly and firmly settled every year, for more than half a century. Ben. Adm., secs. 257-260.

6. The possession of the vessel was never surrended by Crawford & Terry.

Allowing Small's men to take temporary and divided charge of her to put in the engines preparatoy to finishing her, was not a delivery.

Attachment of her by one of the creditors of Crawford & Terry as their property, could have no effect upon the property or possession of the boat. She was the property of Small in the possession of the libelants.

Mr. Justice Catron delivered the opinion of the court:

This was a libel filed by Beers and Warner

Gilpin, 540, The New Brig.

Maine, building or repairing."

The Calisto, Davies, 29.

66

Louisiana, construction or repair"

7 Pet., 341, Peyroux v. Howard.

All matters that concern owners and proprietors of ships, as such, and shipwrights, are within the admiralty jurisdiction.'

Godol., 43; Ben. Adm., 264.

The civil law, the general admiralty law, the British admiralty law, the lien laws of the States, the decided cases in our own courts, all concur. For obvious reasons, cases to enforce the builders' lien are much more rare than those for repairs.

Nothing is so much favored as the price for building a ship; commerce and the State are interested in it. It is just that the builders should enjoy the lien which the law gives them. Emer. Mar. Loans, ch. 12, sec. 3.

3. Any lien upon a vessel for a maritime service to the vessel, may be enforced in the admiralty.

1 Story, 73, The Marion; Ben. Adm., 270; Fland. Mar. Law, 242.

4. The lien in this case is established as follows:

The vessel, while building in New Jersey, was a foreign vessel, and so there was a lien by the maritime law.

She was in the builder's hands, and so by the common law, which is the law of New Jersey, they had the common law or possessory lien.

against a new steam ferryboat, called The Jefferson, for a balance due the builders on account of work done and materials employed in constructing the hull of the vessel. It is alleged that Crawford & Terry contracted to build for Wilson Small, of New York, three ferryboats, at Keyport, New Jersey, for $12,000 each; that they built one of them, to wit: The Jefferson; that they have a lien for the unpaid balance of the price, and that the vessel is now in the Southern District of New York.

Process having been issued, the Peoples' Ferry, Company of Boston intervened as owners, and filed their claim and answer, denying the facts alleged.

On the trial, the defendants proved and put in evidence a written agreement for building the hulls of three vessels, between Wilson Small, who was building under a contract for the Ferry Company, and Crawford, by which the latter was to construct, build and deliver at New York City, the hulls of the three vessels. The contract provides that the boats and materials, as soon as the same may be fitted for use, shall be the property of Small, subject only to the lien of Crawford for such sum or sums of money as may be due under the contract.

When The Jefferson was nearly finished, she was taken to New York and delivered to Small, to receive her engine; and afterwards, Crawford & Terry assigned their claim to the libelants, Beers & Warner. The balance due to the

builders was over $7,000, and for this sum the libélants obtained a decree of condemnation.

The only matter in controversy is, whether the District Courts of the United have juris diction to proceed in admiralty to enforce liens for labor and materials furnished in constructing vessels to be employed in the navigation of waters to which the admiralty jurisdiction extends.

The lien reserved by the contract, is not set up in the libel, nor can it avail, as it amounted to nothing more than a mortgage on the vessel for a debt.

Bogert v. John Jay, 17 How., 400. Nor could a maritime lien for work and materials be claimed by the local law, as no statute creating any lien existed in New Jersey when the vessel was built. We have then the simple case whether these ship carpenters had a lien, for work and materials, that can be enforced in rem in the admiralty.

The District Court held: "That it is very clear that the admiralty law creates a lien in favor of a party who does work or furnishes supplies to a foreign ship, and that a ship owned in another State is foreign.

"That in determining the question whether such lien is created also in favor of the builder of a ship, as well as of him who furnishes work and supplies to her after she is built, the court is not controlled by the restricted jurisdiction of the admiralty courts of England, as exercised by them under the supervising power of the common law courts. The rules and prin ciples of the admiralty law, as administered by the Admiralty Courts of this country, are more enlarged-more in conformity to the principles of the civil law, as administered by the maritime nations of continental Europe.

"That, according to the law, the interests of shipping and ships, not only in their creation, but in their preservation, are of paramount importance; that the importance of this consider ation is the reason why the material man who furnishes supplies for the preservation of the ship is entitled to a lien; and there is the like reason for giving a lien to him who has furnished necessaries to bring the ship into being. "That the English law gives only the common law possessory lien to a material man or to a builder; but the maritime law of continental Europe gives a maritime lien to those who build, supply, or repair a ship, at least when she is a foreign ship. This is expressly stated by Boulay Paty, and this principle was acted upon for a long time by the English Ad miralty, before it was overthrown by the courts of common law.

"That the right of a material man who has furnished necessaries for the preservation of a foreign ship, has been repeatedly acknowledged by the Admiralty Courts of this country; and as the like reason exists why a carpenter should have a lien on that which by his work and materials he creates, as on that which he preserves, after he has created it; and as by the general maritime law a lien exists in the one case, as in the other, the court must hold that Crawford & Terry had a lien upon the boat for the work done and materials furnished in building her."

Foreseeing that the cause would be brought up by appeal to this court, the Circuit judge

merely acquiesced in the decision of the District Court, and affirmed its decree.

The question presented involves a contest between the State and Federal Governments. The latter has no power or jurisdiction beyond what the Constitution confers; and among these, it is declared that the judicial power shall extend to all cases of admiralty and maritime jurisdiction;" and by the Judiciary Act of 1789, this jurisdiction is conferred on the District Courts of the United States. The extent of power withdrawn from the States, and vested in the General Government, depends on a proper construction of the constitutional provision above cited. Its terms are indefinite, and its true limits can only be ascertained by reference to what cases were cogniza ble in the maritime courts when the Constitution was formed-for what was meant by it then, it must mean now; what was reserved to the States, to be regulated by their own institutions, cannot be rightfully infringed by the General Government, either through its Legislative or Judiciary Department. The contest here is not so much between rival tribunals, as between district sovereignties, claiming to exercise power over contracts, property, and personal franchises.

How largely these may be involved in the contest is most apparent when we take into consideration that the Admiralty Courts now exercise jurisdiction over rivers and inland waters, wherever navigation is or may be carried on, and extends to almost every description of vessel which may be employed in transporting our products to market. Over all these the admiralty jurisdiction is now exercised in proper cases; and the question is, whether the contract before us is a proper case, and within the grant of federal jurisdiction. The contract is simply for building the hull of a ship, and delivering it on the water. The vessel was constructed and delivered according to the contract, and was in the possession of the party for whom it was built when the libel was filed.

The admiralty jurisdiction, in cases of contract, depends primarily upon the nature of the contract, and is limited to contracts, claims, and services, purely maritime, and touching rights and duties appertaining to commerce and navigation. 1 Conckling, M. L., 19.

In considering the foregoing description, it must be borne in mind that liens on vessels encumber commerce, and are discouraged; so that where the owner is present, no lien is acquired by the material man; nor is any, where the vessel is supplied or repaired in the home port. The lien attaches to foreign ships and vessels only in favor of the carpenter who re pairs in a case of necessity and in the absence of the owner. It would be a strange doctrine to hold the ship bound in a case where the owner made the contract in writing, charging himself to pay by installments for building the vessel at a time when she was neither registered nor licensed as a sea going ship. So far from the contract being purely maritime, and touching rights and duties appertaining to navigation (on the ocean or elsewhere), it was a contract made on land, to be performed on land. The wages of the shipwrights had no reference to a voyage to be performed; they had no interest

or concern whatever in the vessel after she was delivered to the party for whom she was built; they were bound to rely on their contract. It was thus held by the first Judge Hopkinson, in 1781, who then declared, as respects ship builders, that "the practice of former times doth not justify the admiralty's taking cognizance of their suits." Clinton v. The Brig Hannah, Bee's Adm., App., 419. And we feel warranted in saying that at no time since this has been an independent nation, has such a practice been allowed. Turnbull v. Enterprise, Bee's Adm., 345.

It is proper, however, to notice the fact that district courts have recognized the existence of admiralty jurisdiction in rem against a vessel to enforce a carpenter's bill for work and materials furnished in constructing it, in cases where a lien had been created by the local law of the State where the vessel was built; such as Read v. The Hull of a New Brig, 1 Story, 244; and Davis & Lehman v. A New Brig, Gilpin, 473; lb., 536; Ludington & King v. The Nucleus, 2 Law Jour., 563. Thus far, however, in our judicial history, no case of the kind has been sanctioned by this court.

1. That the defense attempted to be interposed, was not properly set forth in the answer. 2. If properly made, it was no answer to the petition. It is admitted that the first plea to the amended answer is prolix and contains unnecessary matter; but by a careful examination it will be found that it has all the requisites of a good defense orderly set forth.

By its terms, the draft was not to be paid until 12 months after March 23, 1854.

It is true that according to the custom of merchants, such drafts may be presented for acceptance, and if not accepted, may be sued on, but this cause of action was intended to be provided against in the agreement set out and attempted to be set up by the amended answer. It must be that the defense is properly set out; but the question now comes up:

Is the defense set forth in the plaintiff's reply, if true, a good bar of the cause of the action of the plaintiffs below?

The draft was a Louisiana contract, subject to the law of that State in regard to its validity, force and effect.

Cited 3 Am. Rep., 734, 735 (43 N. Y. 554); 13 Am. Rep., 272 (23 O., 565); L'Am. Rep., 125 (100 Mass., 409).

TAYLOR BROWN, Piff. in Er.,

v.

LEROY M. WILEY, HUGH R. BANKS, WM. G. LANE, HENRY VAN DERZEE, AND EDW'D H. LANE, Merchants, trading under the Name and Style of L. M. WILEY & Co.

(See S. C., 20 How., 442-448.)

its essential terms; and this is believed to be the rule of the Louisiana law. But the agreement in question did not, in any sense, propose to alter, vary, or change the written agreement between the parties. It does, however, restrain the holder, in raising a cause by an act to be done by him; which was an act that he might or might not, at his election, perform, and which, of course, it was competent for him upon sufficient consideration, to agree not to do, and the draft. such an agreement would be collateral only to

In a case in Louisiana, evidence was admitted to prove that the defendant's indorsement on the note sued on was merely as security, and that the same was to be paid out of the collection of claims due to the drawer. "The evi

of exchange, inadmissible.

Proof of a parol contract, that a bill of exchange should not be presentable till a distant, uncertain, or undefined period, tends to alter and vary, in a very material degree, its operation and effect, and is inadmissible in evidence. Argued Apr. 28, 1858.

plain a written instrument, but to prove a collateral fact in relation to it."

Dioight v. Linton, 3 Rob. La., 57.

N ERROR to the District Court of the Unit

to

of t

This case arose upon a petition filed in the court below, by the defendants in error, to recover on a certain bill of exchange.

The trial resulted in a verdict and judgment in behalf of the plaintiffs, for $2,578.02, with costs; whereupon the defendants brought the case here on a writ of error.

Messrs. Rob. Hughes and Reverdy Johnson, for the plaintiff in error:

The plaintiff in error relies on the error, if any, by reason of the ruling of the court in allowing the exception in the defendants' anThose exceptions may be resolved into two grounds:

swer.

NOTE.-Party to bill or note cannot vary his contract by parol." Parol evidence, admissible for what

purposes. See note to B'k of U. S. v. Dunn, 31 U. S. (6 Pet.), 51.

Robertson v. Nott, 2 Mart. N. S., 122.

In that case there was nothing to alter, vary or change a written instrument, but an agreement to waive a right conferred by law, by reason of the nature of the instrument, within the reason of which this case is clearly embraced.

Messrs. J. Larocque and Barlow, for defendants in error:

The evidence offered was incompetent and inadmissible. It was to prove a parol agreement made at the time of drawing the draft and not embraced in it, inconsistent with its terms and legal effect. This would be contrary to the well settled rule of law on the subject.

Bank of U. S. v. Dunn, 6 Pet., 51; Bank of Metropolis v. Jones, 8 Pet., 12; Rockmore v. Davenport, 14 Tex., 602; Creery v. Holly, 14 Wend.,30; Thompson v. Ketchum, 8 Johns., 190.

It is the lex fori which governs as to the admissibility of the defense offered. The effort is not to show that by the law of Louisiana the legal import of the bill in question is different from the signification attached to it by the general commercial law, but that an agreement by parol, contrary to that legal import, was made at the same time.

Story Conf. Laws, secs. 634, 635. Cases cited; Yates v. Thompson, 3 Clark & F., 577, 580; Shewell v. Raguet, 17 La., 457.

The cases cited from Louisiana (Dwight v. Linton, 3 Rob., 57; Robertson v. Nott, 2 Mart. N. S., 122) cannot be sustained. They have not since been followed even in that State, but substantially, though tacitly, overruled,

Police Jury v. Haw., 2 La., 42; Robechot v. Folse, 11 La., 133; Arnous v. Davern, 18 La.. 42; Barthet v. Estebene, 5 La. Ann., 315; Gosserand v. Lacour, 8 La. Ann., 75; Williams v. Hood, 11 La. Ann., 113.

2. Nor was the defendant entitled to have the jury instructed as he requested on the trial. The draft being a date, and not a sight draft, no presentment before maturity was necessary; but the holder was entitled, at his election, to present it and insist upon its acceptance at any time before its maturity, and in default of acceptance, to bring his action immediately against the drawer; besides, no such defense was taken.

Chit. Bills, 299, 370; Townsley v. Sumrall, 2 Pet., 178; Evans v. Gee, 11 Pet., 80; Young v. Bryan, 6 Wheat., 146; Union Bank v. Hyde, 6 Wheat., 572; Burke v. McKaig, 2 How., 66.

Fourth. The exception to the charge being a general exception only, to a charge containing several distinct propositions, is entirely unavail

able on this writ of error.

The charge is, moreover, free from error. Rule 35, Jan. Term, 1832; Magniac v. Thomp son, 7 Pet., 348.

Mr. Justice Grier delivered the opinion of the court:

Wiley & Co., plaintiffs below, declared on a bill of exchange drawn by Taylor Brown on Messrs. Campbell & Strong, of New Orleans, to order of plaintiff, dated 23d of March, 1854, and payable on the 1st of May, 1855. It was presented for acceptance on the 10th of June, 1854, and was protested for non acceptance; of which the drawer had due notice.

It is admittted the bill was given for full value; but the defendant set up by way of special plea, and offered to prove to the jury, a parol agreement between him and the plaintiffs, that this bill should not be presented for acceptance till after a certain other draft, payable in May, 1854, was provided for, by placing funds in the hands of the drawees, who had agreed to accept the last bill after funds had been received to meet their acceptance of the first.

It is the rejection of this defense by the court below that is the subject of exception. It presents the question, whether parol evidence should have been received, to vary, alter or contradict that which appears on the face of the bill of exchange.

When the operation of a contract is clearly settled by general principles of law, it is taken to be be the true sense of the contracting parties. This is not only a positive rule of the

common law, but it is a general principle in the construction of contracts. Some precedents to the contrary may be found in some of our States originating in hard cases; but they are generally overruled by the same tribunals from which they emanated, on experience of the evil consequences flowing from a relaxation of the rule. There is no ambiguity arising in this case which needs explanation. By the face of the bill, the owner of it had a right to demand acceptance immediately, and to protest it for nonacceptance. The proof of a parol contract, that it should not be presentable till a distant, uncertain, or undefined period, tended to alter and vary, in a very material degree, its operation and effect.

See Thompson v. Ketchum, 8 Johns., 192. Any number of conflicting cases on this sub ject might be cited. It will be sufficient to refer to the decisions of this court, those of Texas, where the suit was brought, and of Louisiana, where the contract was made.

In The Bank of United States v. Dunn, 6 Pet., 56, this court have declared that there is no rule better settled or more salutary in its application than that which precludes the admission of parol evidence to contradict or substantially vary the legal import of a written agreement.' The case of Brochmore v. Datenport, 14 Tex., 602, a case precisely similar to the present, adopts the same rule. The case of Robishat v. Folse, 11 La., 133, and of Barthet v. Estebene, 5 Ann., 315. and several others, acknowledge the same doctrine, thereby overruling some early cases in Louisiana which had departed from it.

This being the only point urged by plaintiff in error as a ground of reversal, the judgment of the court below is affirmed.

Cited-95 U. S., 480; 28 Am. Rep., 605 (44 Wis. 569).

JAMES STINSON, Piff. in Er.,

0.

HERCULES L. DOUSMAN.

(See S. C., 20 How., 461-467.)

Contract, recovery on failure to perform—Time, when essence of-Jurisdiction as to amount.

Under a contract for land, containing the clause that in case the vendee fails to perform any covenant on his part, the vendor may declare the contract void, and recover by distress or otherwise, ail the interest due on the contract as rent: on failure or to insure, as agreed, the vendor may recover of payment of the first installment, or of the taxes, such interest as rent.

When time is of the essence of the contract. Although the rent claimed was not of the value

of $1,000, yet as the title to land valued at $8,000 was in dispute, this court has jurisdiction. Argued Apr. 16, 1858. Decided May 10, 1858.

IN ERROR to the Supr

N_ERROR to the Supreme Court of the

The case appears in the opinion of the court.

Mr. James Cooper, counsel for plaintiff in error:

The promissory note for $2,000 given by Stinson to Dousman, was in payment of the first installment, and the draft drawn by Thomas Stinson was in payment of the note. The draft was prematurely protested by the