pairing, fitting, furnishing or equipping ships or vessels, constitute a lien upon such ship or vessel, her tackle, apparel and furniture, and the provision is that they shall continue to be a lien on the same for nine months after the debt is contracted, and that such lien shall be preferred to all other liens except mariner's wages. Sess. Acts, 1857, sec. 382. the discharge of the schooner from the seizure under those proceedings. Process was served and the defendants appeared and pleaded as follows: (1) Non est jactum. (2) Nil debet. (3) That the respective demands were not subsisting liens when the application was made for the warrant. That the persons who contracted the debts were neither owners nor agents of the vessel. (5) That there was no such vessel in being at the time the warrant was issued. (4) Issues were tendered by the plaintiffs and were joined by the defendants as to all the. pleas. Subsequently the parties went to trial, and the jury returned a special verdict. Hearing was had upon the special verdict, and the court rendered judgment for the plaintiff's for the whole amount of the claims set up in the declaration. Jurisdiction is vested in the Court of Errors and Appeals to re-examine such a judgment and to correct any errors apparent in the record. Errors were accordingly assigned by the defendant in the said Court of Errors as follows: (1) That the Supreme Court improperly held that the lien law was valid and constitutional. (2) That the Supreme Court improperly decided that the builders of the vessel were the owners of the same and competent to charge the vessel with liens. (3) That the Supreme Court improperly ruled and determined that the respective claims of the plaintiffs were subsisting liens on the vessel at the time the same were exhibited to the magistrate or officer who issued the warrant. (4) That the Supreme Court erroneously rendered judgment for the plaintiff. Means are also provided to enforce such liens if the debt amounts to the sum of $20. Such a creditor for such a debt may make application to one of the magistrates therein named for a warrant to enforce the lien of such debts and to collect the amount. Applications of the kind must be in writing, but if drawn in due form, the officer or magistrate to whom the same is addressed is required to issue his warrant to the sheriff or other proper officer, commanding him to attach, seize and safely keep the ship or vessel, to be disposed of as directed in the same legislative Act. He must also make return within ten days to the officer who issued the warrant, of his doings in the premises, and make out, subscribe and annex thereto a just and true inventory of all the property so seized and to be signed by him and annexed to his return. Thereupon it is made the duty of the officer issuing the warrant, to direct that a notice containing certain prescribed requisites shall be published in one or more of the newspapers printed in the county, in order that any other person, having such lien upon the ship or vessel, may deliver to the said officer an account in writing of their demands, accompanied by the prescribed affidavits and proofs; and the Act provides that every such person shall be deemed an attaching creditor and shall be Appearance was also entered in the Court of entitled to the same benefit and advantage, and Errors by the original plaintiffs and they pleadbe subject to the same responsibilities and obli-ed in nullo est erratum, and prayed the court to gation as the creditor who made the first obli-examine as well the record and proceedings as gation; and the provision is that liens not so the matters assigned for error. Both parties presented and verified shall be deemed inopera- were again heard, and the Court of Errors aftive and cease. fimed the judgment of the Supreme Court. Due application for such a warrant was made Since that time the cause has been removed into by the first-named plaintiff, to enforce a sub-this court for re-examination under the Acts of sisting licn upon the schooner for materials Congress providing for a writ of error to a furnished in the State to the builders of the State Court. schooner, and it appears that he duly verified his demand, and that the requisite notice was published as required by law, and that the sheriff to whom the warrant was delivered duly attacked and seized the vessel as commanded; that the other plaintiff's also presented their demands of like character to the officer who issued the warrant, and that the same were duly verified by affidavits and proofs, showing that the respective demands were subsisting liens upon the same vessel. Pursuant to the notice the first named defendant appeared and applied to the officer who is sued the warrant, for an order to discharge the schooner under the 11th section of the same Act and that the order was passed, he, the applicant, having tendered the required bond in double the amount of the debt so verified, executed by himself with two sufficient sureties. Bonds of the kind are required to be held for the common benefit of all such attaching creditors, and it is enacted that they may prosecute the same jointly or severally at their election. All joined in the suit in this case, which is an action of debt founded upon the bond given to procure Nothing appears in the record to warrant the conclusion that any question re-examinable here was presented in the court of original jurisdiction, whether the proposition is tested by the declaration, the pleas filed by the defendant, the special verdict, or by the judgment, as all alike tend to show that the questions presented, examined and decided were questions of local law. Every suggestion of that kind, therefore, may be dismissed without further remark, as they are utterly destitute of support. Opposed to that statement is the suggestion in argument, that the presiding justice overruled the demurrer to the declaration; but it is a sufficient answer to that suggestion to say that this court cannot go out of the record to re-examine any question under a writ of error to a State Court. Suppose that is so, still it is contended that the defect is supplied by what occurred in the Court of Errors and Appeals. Tested alone by the errors assigned in that court; it is quite clear that the jurisdiction of this court could not be sustained, as the errors assigned in that court do not show, with sufficient definiteness, . that any question cognizable here under a writ | embodied in the transcript is not correct. Alterations of a very material character are made in the substituted judgment, as compared with the judgment originally entered, and which remained unchallenged at the time the 550*] Something more must be set forth in such a pleading, to raise a Federal question, than the mere allegation that the law is invalid and unconstitutional, as such an assign-writ of error was sued out and when the sument is satisfied if held to refer to the Constitution of the State, in which event the question raised is not one cognizable here under a writ of error to a State Court. Farney v. Towle, 1 Black. 351, 17 L. ed., 217; Hoyt v. Sheldon, 1 Black, 521, 17 L. ed. 66; R. R. Co. v. Rock, 4 Wall., 180, 18 L. ed. 382. persedeas bond was filed. Such alterations, it is insisted by the defendant, could not properly be made at that stage of the litigation, as the writ of error from this court to the Court of Errors brought up the judgment first mentioned as a part of the transcript annexed to the return made, to the writ of error, by the Court of Errors, to which it was addressed. If the case stopped there it would be clear that the writ of error must be dismissed for the Exceptions may arise to that proposition, as want of jurisdiction, but it does not stop there, broadly stated, but it is not necessary in this as plainly appears by the judgment of affirm-case to examine the question in so general an ance rendered in the Court of Errors, which aspect, as whatever may be the power of the shows that the State Court of last resort, de- Court of Errors to change or amend such a termined, among other things, the following judgment for the purposes of any proceeding propositions: (1) That the lien law of the under it in the exercise of their own appellate State is not in any respect repugnant to the functions, we are, nevertheless, of the opinion Constitution of the United States, as contended that the judgment brought here as part of the by the original defendants. (2) That the conreturn to the writ of error from this [*552 tract for building the vessel in question is not court must, under the circumstances, remain as a maritime contract, and that the remedy given the judgment which this court is called upon to by the lien law of the State does not conflict re-examine and review. Generes v. Bonnemer, 7 with the Constitution or laws of the United Wall., 564, 19 L. ed. 227; Avendano v. Gay, States. (3) That the said lien law does not 8 Wall., 376, 19 L. ed., 422; Flanders v. Tweed, violate the right of trial by jury nor conflict 9 Wall., 431, 19 L. ed., 680; Hozey v. Buchanan, with the Constitution of the State. 16 Pet., 215; Albers v. Whitney, 1 Story, 310; Brush v. Robbins, 3 McLean, 486; Medford v. Dorsey, 2 Wash. (C. C.), 433; Kanouse v. Martin, 15 How., 210; Cheang-Kee v. U. S., 3 Wall., 326, 17 L. ed. 74; Noonan v. Bradley, 12 Wall., 129, 20 L. ed., 281. Like every other pleading, an assignment of error is subject to a reasonable construction. Reasonably constructed it cannot be held that the first proposition of the judgment of affirmance involves a comparison of the state lien law with every separate provision of the Federal Constitution, and if not with every one, it is impossible to determine with which one, as there is nothing in the judgment or any other part of the record pointing to any particular part of the Constitution, except what is contained in the second proposition of the judgment, which, in view of the whole record, must be regarded as a more complete specification of what is meant by the first proposition. Viewed in the light of these suggestions, it must be understood from the two propositions that the State Court of Errors decided that the contract in this case for the building 551*] *of the schooner was not a maritime contract, and that the law of the state giving the remedy which was pursued by the plaintiff's does not conflict with the Federal Constitution or with Federal laws. Such an allegation in the judgment of the State Court is sufficient to give this court jurisdiction under the writ of error to re-examine that question. Well founded doubt upon that question cannot be enter tained, unless it be assumed, as contended by the plaintiffs, that the copy of the judgment Enough has already been remarked to show that the judgment of affirmance, first rendered, raises the question whether the contract under which the vessel was built is a maritime contract, and whether the law of the State which gives the remedy pursued by the plaintiffs is in conflict with the Federal Constitution. Beyond all doubt that question was presented to the State Court of Errors, and was decided by that court adversely to the defense set up by the defendants in the court of appellate jurisdiction. Elliott v. Edwards, 35 N. J. Law, 266; Edwards v. Elliott, 34 N. J. Law, 96. Materials were furnished by the plaintiffs to the persons who contracted to build the schooner, during the progress of the work. Payment for the materials being refused, they instituted the described proceedings to enforce the lien given them by the state law, in such a case, against the vessel for which the materials had been contracted. When the proceedings were commenced, the schooner was only partially constructed and was resting on her original stocks, having never She was withbeen launched into the water. out a name and had never been registered or enrolled, nor had she ever been licensed or surveyed, and she was without a master or crew, and the record shows she had never had a commander. Concede all that, and still the defendant contend that the plaintiffs, as the furnishers of the materials, had a maritime lien for their respective claims which may be enforced in the admiralty, and that the state law giving the remedy which the plaintiffs pursued is in conflict was that clause of the Federal Constitution 553*] which provides that the judicial *power of the United States shall extend to all cases of admiralty and maritime jurisdiction. They admit, in effect, that to maintain that proposition it is necessary to show that a contract to furnish materials for the construction of a ship is a maritime contract, and they accordingly submit the affirmative of that proposition and insist that all such contract are maritime, if it appears that the vessel to be constructed is designed for use upon navigable waters. Maritime contracts are such as relate to commerce and navigation, and unless a contract to build a ship is to be regarded as a maritime contract, it will hardly be contended that a contract to furnish the materials to be used in accomplishing that object can fall within that category, as the latter is more strictly a contract made on land, and to be performed on land, than the former, and is certainly one stage further removed from any immediate and direct relation to commerce and navigation. structed and before they are equipped for navigation, and no reason is perceived why a contract to build a ship, any more than a contract for the materials of which a ship is composed, or for the instruments or appurtenances to manage or propel the ship, should be regarded as maritime. Attempt is made in vain to point out any distinction in principle between a contract to build a ship and a contract for the materials, as the latter are included in the former, and both fall within the same category under the rules of the civil law. Everyone who had built, repaired or fitted out a ship, whether at home or abroad, or lent money to be employed in those services, had by the civil law a privilege or right of payment, in preference to other creditors, upon the ship itself, without any instrument of hypothecation, or any express contract or agreement subjecting the ship to any such claim, and that privilege still exists in all those countries which have adopted the civil law as the basis of their jurisprudence. Authorities to support that propositions are unnecessary, as the proposition is conceded by both parties in this controversy, but that rule was never adopted in England, and the reverse of it is the settled rule in our jurisprudence in respect to the question under consideration. Conclusive support to that proposition is found in the case of The Jefferson, 20 How., 393, Ferry Co. v. Beers, 15 L. ed., 961, in which the opinion of the court is given by Mr. *Justice [*555 Catron. By the statement of the case it appears that it was a libel filed by the assignees of the builders against a new steam ferry boat for a balance due to the builders on account of work done and materials used in constructing the hull of the ferry boat. They claimed a lien for the unpaid balance of the price, and the decree was in their favor in the circuit court, but the claimants appealed to this court. When the cause came up for argument the first point made for the claimants was that a contract to build a ship is not one within the jurisdiction of the admiralty courts, even though it be intended to employ the vessel in ocean navigation. Sufficient appears in the report of the case to show that libelants took direct issue upon that proposition, and the court say, in disposing of whether the district courts have jurisdiction 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. Building materials for such a purpose come very largely from the forest and miners, but if it be admitted that a contract to build a ship is a maritime contract, it is difficult to affirm that a contract to furnish the materials for the same is not of the same character, although its breach and even its performance may involve judicial inquiries into the business transactions of men, as well in the forest and mines as in the manufactories and workshops of the whole civilized world. Whenever the question, therefore, involved in the present assignment of error, has been considered, the decision has uniformly turned upon the solution of the inquiry whether a contract for building a ship is or is not a maritime contract. Unless the contract to build a ship is a maritime contract, no one, it is pre-it, that the only matter in controversy, is, sumed, would contend that the furnishers of the materials for such a purpose can successfully support such a claim; and if it be admitted that the builders of a ship may enforce the payment of the contract price in the admiralty, it would be difficult to maintain that the furnishers of the materials for the purpose are not entitled to pursue their remedy to enforce payment in the same jurisdiction. 554*] *Ship-building is an occupation requiring experience and skill and, as ordinarily conducted, is an employment on land, as much as any other mechanical employment, and men en-pertaining to commerce and navigation. Apgage in the business for a livelihood just as they do in other mechanical pursuits and for the same purpose. Shipwrights, unlike the seamen, have their homes on the land, and not on the seas, and they are seldom ship-owners, and not more frequently interested in commerce and navigation than other mechanics. Ships are bought and sold in the market just as ship tim ber, engines, anchors or chronometers are bought and sold, even before they are fully con Neither ship builders nor furnishers of materials for ship-building, had any lien at that date under the state law, but the court unanimously decided that the admiralty jurisdiction was limited to contracts, claims and services which were purely maritime, and to such as had respect to rights and duties ap plying that rule to the case then under consideration, the court say: "So far from the contract being purely maritime and touching rights and duties appertaining to navigation, it is a contract made on land to be performed on land." Convinced or not, every candid inquirer must dmit that this court did decide in that case that neither a contract to build a ship nor to furnish materials for the purpose is a mari time contract. Nor does that decision stand | the State Courts, or in the Circuit Court of the alone, as, the same question since that time has United States, if he can make proper parties to more than once come before the court and been give that court jurisdiction of the case. But a decided in the same way. Such was the view of maritime lien does not arise in a contract to the court in the case of Roach v. Chapman, 22 build a ship or in a contract to furnish mate556*] How., 129, 16 L. ed., 294, in which the rials for that purpose; and in respect to such opinion of the court was given by Mr. Justice contracts, it is competent for the States, under Grier. the decisions of this court, to create such liens as their Legislatures may deem just and expedient, not amounting to a regulation of commerce, and to enact reasonable rules and regulations prescribing the mode of their enforcement, if not inconsistent with the exclusive jurisdiction of the admiralty courts. Proceedings in that case had been instituted in the District Court against a steamer to enforce a lien for a part of the price of the engine and boiler, which had been furnished to the builders in another State, where the steamer was built. Process was served and the claimants appeared and filed a plea to the jurisdiction of the court, which was sustained by the Circuit Court, and the libelants appealed to this court. Able counsel appeared for appellants, but this court decided that a contract for building a ship or for supplying engines, timber or other materials for her construction is clearly not a maritime contract, and the court remarked that any former dicta or decisions which seem to favor a contrary doctrine were overruled. The Jefferson [Ferry Co. v. Beers], 20 How., 400, 15 L. ed., 964. During the same session of the court, the same question was again presented, and was again decided in the same way. Morewood v. Enequist, 23 How., 494, 16 L. ed., 517. Express reference is there made to the case of The Jefferson [Ferry Co. v. Beers], and the remark of the court is, that the court there decided that a contract to build a ship is not a maritime contract; that in this country such contracts are purely local and are governed by state laws, and should be enforced by the state tribunals. Decisions to the same effect have been made in the Circuit Courts, of which the following are examples: Cunningham v. Hall, 1 Cliff., 45; The Orpheus, 2 Cliff., 35. The Belfast, supra; Sheppard v. Steele, 43 N. Y., 55; Ferran v. Hosford, 54 Barb., 208. Objection is also taken to the validity of the state law, upon the ground that it is in conflict with the provision of the Federal Constitution which secures to every party, where the value in controversy exceeds $20, the right of trial by jury. Two answers may be made to that objection, either of which is decisive: (1) That it does not apply to trials in the State Courts. Barron v. Baltimore, 7 Pet., 247; Twitchell v. Com., 7 Wall., 326, 19 L. ed., 224; Livingston v. Moore, 7 Pet., 551; Fox v. Ohio, 5 How., 434; Smith v. Maryland, 18 How., 76, 15 L. ed., 271; Cooley, Const. Lim., 2d ed., 19. (2) That no such error was assigned in *the Court of Errors [*558 and that the question was not presented to, nor was it decided by, the Court of Errors. Jurisdiction is not shown unless it appears that some one of the specified questions did arise in the State Court and that the question was decided adversely to the party assigning error in this court. Crowell v. Randall, 10 Pet., 392; Suydam v. Williamson, 20 How., 440, 15 L. ed., 933. Judgment affirmed, with costs. Appts., v. State Legislatures have no authority to create HENRY R. JACKSON, Moses D. Wadley et al., a maritime lien, nor can they confer any jurisdiction upon a State Court to enforce such a lien by a suit or proceeding in rem, as practiced in the admiralty courts. The Belfast, 7 Wall., 644, 19 L. ed., 272; The Moses Taylor, 4 Wall., 411, 18 L. ed., 397; Hine v. Trevor, 4 Wall., 555, 18 L. ed., 851. Other support to that proposition than the Act of Congress is not needed, as the provision is to the effect that the District Courts shall have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, 557*] except *where the common law is competent to give to suitors a common law remedy. Common law remedies are not applicable to enforce a maritime lien by a proceeding in rem and, consequently, the original jurisdiction to enforce such a lien by that mode of proceeding is exclusive in the District Courts. Brookman v. Hamill, 43 N. Y., 554; The Josephine, 39 N. Y., 19. Taken together and properly construed, those provisions warrant the conclusion that such a party wishing to enforce such a lien may proceed in rem in the admiralty, or he may bring a suit in personam in the same jurisdiction, or he may elect not to go into admiralty at all, and may resort to his common law remedy in JOHN T. LUDELING, The Vicksburg, Shreveport & Texas Railroad Company, et al. (See S. C., 21 Wall., 616–635.) Joint owner-duty of-fraudulent combination of directors-sacrifice of the property-purchase by them-when fraudulent and voidnew company-homologation. 1. When two or more persons have a common interest in a security, equity will not allow one to appropriate it exclusively to himself, nor to impair its worth to the others. 2. A person owning part of bonds of a railroad company secured by a mortgage, has no right so to use that fact as to obtain an advantage for himself over the other bond holders, nor to employ it as an instrument by which to become the owner of the leaving the bonds held by his associate holders unproperty mortgaged at the lowest possible price, paid. 3. He has no right to enter into an agreement which had for its object the purchase of the railroad and mortgaged property at the lowest possible price, for the exclusive benefit of the parties to the agreement, with no reference to the other bond holders. NOTE.-Fiduciary relations of officers and their dealings with corporate property-see note, 36 L. ed. U. S. 1079, Liability of directors to corporation-see note, 55 L. R. A. 751. 4. Directors and officers of the company have no right to enter into or participate in a combination, the object of which is to devest the company of its property and obtain it exclusively for themselves at a sacrifice, or at the lowest price possible, and thus seek their own profit at the expense of the company, its stockholders, creditors and bond holders. They have no right to obtain the property for themselves by a hurried sale conducted with the least possible opportunity for notice of the proceed ing to those stockholders and bond holders resident at a distance, who had the greatest interest, nor to make an agreement whose obvious purpose was to remove competition at the sale. 6. Directors of the company, owing duties to its stockholders and creditors, cannot combine to obtain the company's property for themselves at a sacrifice, through the formality of a judicial sale, nor become active participants in successful efforts to defeat a sale for a large sum in order that they might become the purchasers for a small amount; and they can take nothing from such a sale, thus made. The bill is for discovery and relief against certain alleged frauds of the grossest character. The presumption of law is against all fraud— all vicious and dishonest conduct. Odiosa et inhonesta non sunt in lege præsumenda. The answers of the defendants to the bill and to the interrogatories are evidence. The complainants make the sixteen defendants witnesses, jointly and severally, to prove the charges of the bill. One and all, they unhesitatingly say that there is no truth in any of the charges. Their answers are clear, full, concurrent and uncontradicted. The effect of this evidence is familiar. The elementary rule in equity is: "That an answer, which is responsive to the allegations and charges made in the bill, and contains clear and positive denials thereof, must prevail, unless 7. A new company, formed by the purchasers at overcome by the testimony of two witnesses to this illegal and void sale, has no other or better the substantial facts, or at least by one wittitle than that of these purchasers. 8. The proceeding to homologate a sheriff's sale ness, and other attendant circumstances which peculiar to Louisiana, does not conclude the ques- supply the want of another witness, and thus tion whether the purchasers have obtained their destroy hte statements of the answer, or demontitle by fraud, or whether they are trustees malastrate its incredibility or insufficiency as evifide for others. dence." [No. 58.] 3 Greenf. Ev., § 289; Mills v. Gore, 20 Pick., 28; Field v. Holland, 6 Cranch. 8. No Argued Nov. 9, 10, 1874. Decided Nov. 23, 1874. APPEAL from the Circuit Court of the The law of Louisiana governs this case. United States for the District of Louisiana. principle is better settled than that a title or The bill in this case was filed by the appel- interest in land or real estate can only be aclants in the court below, where a decree of dis-quired or lost agreeably to the law of the place missal was entered, whereupon they took an where the same is situated. appeal to this court. The case is fully stated by the court. Messrs. J. A. Campbell, H. M. Spofford & Campbell, for appellants: Irregularities, defects and informalities must Story, Conf. L., § 365; Kerr v. Moon, I Wheat., 570; U. S. v. Crosby, 7 Cranch, 115; McGoon v. Scales, 9 Wall., 27-31, 19 L. ed. 546-548; Miles v. Caldwell, 2 Wall., 36, 17 L. ed., 755. The judicial proceedings, under which the be cured by the monition process, or by pre-defendants acquired their title, are in strict scription of five years. This point is very plainly stated and decided in 1 Ann. Rep., 46. The court says: The Act of 1834 was passed for the protec tion of bona fide purchasers at judicial sales, from litigation concerning matters of form, a non-observance of which frequently exposed purchasers to unreasonable and vexatious suits. Neither in the bill nor in the argument have we insisted upon any informalities in the order of sale, the advertisement of the sale, or of any of the formal acts which were authorized or appointed. The foundation of this claim is to be found in the conduct of the plaintiff, Gordon, and those who combined with him to use the mortgage of the large number of plaintiffs in this suit, so as to transfer to him and his associates the property pledged to the enlargement of their estates, and the diminution of the estates of other bond holders than himself; that there was unfairness, concealment, surprise, fraud and breach of obligation and duty in that conduct, to their prejudice. This case could not have been propounded in the monition suit. Branner & Co. attempted to do it. The opposition of this party was excepted to by these defendants, who were plaintiffs to the monition, for the reason that such objections are not objections to matters of form in the proceedings connected with the sale, but are objections to matters dehors the proceedings and of substance, if valid at all. This was successful, and the court dismissed the opposition. Messrs. Wm. H. Hunt, Randell Hunt and John Kay, for appellees: conformity to the laws of Louisiana. This has been expressly decided by the courts in Louisiana in this very instance. Branner v. Hardy, 18 La. Ann., 537; Gordon v. The Vicksburg 8. & T. R. Co., 18 La. Ann., 550. These decisions disposed of the very objections now urged by these complainants to the defendants' title. But the judgment in the monition suit, confirming, and homologating the sale, is, by the laws of Louisiana, a complete bar against all persons, whether of age or minors, present or absent. The proceedings are in the nature of proceedings in rem; and, therefore, on principle as well as by the express terms of the statute, bind all the world. Mr. Justice Strong delivered the opinion of the court: The complainants are holders of six hundred and sixty *out of seven hundred and [*618 sixty-one bonds of $1,000 each, issued by the Vicksburg, Shreveport and Texas Railroad Company, and secured by a mortgage upon the railroad and its appurtenances, and upon the franchises and personal effects of the Company, together with more than four hundred thousand acres of land. Their bin is filed as well for themselves as for all other bond holders whose situation is similar to theirs. Some of them are also preferred stockholders of the Company to a large amount, The mortgage was made by an authentic Act on the first day of September,. A. D. 1857, to John Ray or bearer, to secure the |