United States District Court, Southern District of New York. The Steamship Circassian

1873 The American Law Register (1852-1891)  
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more » ... out Early Journal Content at http://about.jstor.org/participate--jstor/individuals/early-journal--content. JSTOR is a digital library of academic journals, books, and primary source objects. JSTOR helps people discover, use, and build upon a wide range of content through a powerful research and teaching platform, and preserves this content for future generations. JSTOR is part of ITHAKA, a not--for--profit organization that also includes Ithaka S+R and Portico. For more information about JSTOR, please contact support@jstor.org. THE STEAMSHIP CIRCASSIAN. THE STEAMSHIP CIRCASSIAN. this case, and that arises under the sixth exception, and also on the defendant's second prayer, contained in the seventh exception. In regard to the alleged injury to the wall of the plaintiff, complained of as a trespass in the second count of the declaration, the defendant offered to prove, in bar of the right of action therefor, that such wall was used by him in the erection of an adjoining building, in the manner testified to, under and by authority of an express parol agreement with the plaintiff; the plaintiff agreeing and directing that the wall should be used in the manner it was by the defendant. This evidence was excluded, as being insufficient under the pleadings, to bar the right to recover for the alleged trespass, but was admitted in mitigation of damages. We think the Court committed no error in ruling as it did in regard to this question. The case was tried on the general issue plea alone. If license had been specially pleaded, as must be done in actions of trespass when the defendant seeks to justify by the authority of the plaintiff, or those under whom he claims (1 Chit. P1. 491, 505), the evidence offered would have been clearly admissible in bar of the right to recover. The right to maintain the plea of license by such evidence as was here offered, is fully sustained by the authorities; the Statute of Frauds in such case not applying: Crosby v. Wadsworth, 6 East 611; Carrington v. Roots, 2 M. & W. 248; 2 Greenl. Ev., sec. 628; Crane v. Gough, 4 Md. 316. But license from the plaintiff not having been specially pleaded, the evidence was inadmissible to defeat the action, under the general issue simply. It was properly admitted, however, in mitigation of damages. It follows, from what we have said in reference to the admissibility of this evidence, that the defendant's second prayer was properly refused by the court below. The judgment will be reversed, and a new trial awarded. United States District Court, Southern District of New York. TIIE STEAMSHIP CIRCASSIAN. A material-man furnishing supplies to a domestic vessel in a home port has no lien by the general maritime law. Such a lien may exist by the law of the state where the supplies are furnished, but it can be enforced in rein only by the United States courts. Where such a lien exists by the local law, it may now, under admiralty rule 1844, or to allow a remedy in rem to material-men in all cases. And, if the necessities of commerce require that, in this country, there should be a remedy in rem in all cases of ma- terial-men, it is much more appropriate that it should be administered by the Courts of Admiralty, than under the laws which may, from time to time, be in force in the several states, especially in respect to vessels not engaged exclusively in the internal commerce of a state, but which may be subject to liabilities incurred in different states, or in foreign countries, in favor of persons other than the attaching creditor." In this state of the decisions, the Supreme Court, on the 6th of May 1872, amended the 12th Rule, so as to make it read as follows: "In all suits by material-men, for supplies or repairs, or other necessaries, the libellant may proceed against the ship and freight in rem, or against the master or owner alone in personam." The 12th Rule of May 1, 1859, which was so amended, read thus: " In all suits by material-men for supplies or repairs, or other necessaries, for a foreign ship, or for a ship in a foreign port, the libellant may proceed against the ship and freight in rem, or against the master or owner alone in personam. And the like proceeding in personam, but not in rem, shall apply to cases of domestic ships, Jfr supplies, repairs or other necessaries." The words in italics above, in the Rule of 1859, were stricken out, and that was the only change made, to arrive at the Rule of 1872. What is the meaning and effect of the Rule of 1872 ? The Rule of 1859, recognising the law of the courts of the United States as to maritime liens for supplies, &c., gave process in rem or in personam, optionally, in case of supplies, &c., to a foreign ship, or a ship in a foreign port; and gave process in personam, but not in rem, in case of supplies, &c., to a domestic ship. Jurisdiction of all contracts for such supplies, &c., belongs to Courts of Admiralty of the United States, under the Constitution and statutes, because such contracts are contracts of Admiralty and maritime jurisdiction, but process in rem was allowed, by the Rule of 1859, only in case of a foreign ship, and was refused in the case of a domestic ship. The Rule of 1872 provides, and was intended to provide, that, in every case of a contract for supplies, &c., to a vessel domestic or foreign, being a maritime contract, process in rem against the vessel, or in personam against her
doi:10.2307/3303314 fatcat:bswncif3vjfp7diqofujdpuera