The General Smith.

against her for the articles furnished. That the ship continued to be the property of said Stevenson, during the said voyage, and after her return, and was not sold or disposed of in any way by him, until the 3d day of October 1816, when, finding himself embarrassed in his pecuniary affairs, and obliged to stop payment, he executed an assignment to the claimants of his property, including the ship General Smith, in trust for the payment of all bonds for duties due by said Stevenson to the United Statos, and for the payment and satisfaction of his other creditors, &c.

Another libel was filed,. on the 11th of November 1816, against the same ship, by Rebecca Cockrill, administratrix of Thomas Cockrill, deceased, alleging that the said Thomas, in his lifetime, at Baltimore, in the said district, did furnish a large amount of iron materials, and bestow much labor and trouble, by himself, and those hired and employed by him, in working up and preparing certain iron materials for building and preparing the said ship for navigating the high seas, all which materials, and work and labor, were in fact applied and used in the construction and fitting sid ship, according to a bill of particulars annexed. That the libellant had been informed and believed, that said ship was owned and claimed by various persons in certain proportions, but in what proportions, and who were the several owners, *she did not know, and could not, therefore, state. [*441

That neither the said Thomas, in his lifetime, nor the libellant, since his decease, had ever received any part of said account, nor any security` or satisfaction for the same. Concluding with the usual prayer for process, &c.

A claim was given for the same parties, and at the hearing, the same proofs and admissions were made as in the suit of James Ramsey; except that it did not appear, that Thomas Cockrill had furnished any other vessels belonging to Stevenson with materials, nor that any payments on. account had been made by said Stevenson to said Cockrill, or to the libellant, as his administratrix.

The district court ordered the ship to be sold, and decreed, that the libellants should be paid out of the proceeds the amount of their demands for materials furnished. In the circuit court, this decree was affirmed, pro forma, by consent, and the cause was brought by appeal to this court.

March 9th. Pinkney, for the appellants and claimants, admitted the general jurisdiction of the district court, as an instance court of admiralty, over suits by material-men in personam and in rem, and over other maritime contracts; but denied, that a suit in rem could be maintained, in the present case, because the parties had no specific lien upon the ship for supplies fur nished in the port to which she belonged. In the case of materials furnished or repairs done to a foreign ship, the maritime law has given such a lien, which may be enforced by a suit in the admiralty.. *But in the case of a domestic ship, it was long since settled by the most solemn [*442 adjudications of the common law (which is the law of Maryland on this subject), that mechanics have no lien upon the ship itself for their demands, but must look to the personal security of the owner. Abbott on Ship. p. 2, c. 3, § 9-13, and the cases there cited; Woodruff v. The Levi Dearborne, 4 Hall's L. Jour. 97. Had this been a suit in personam, in the admiralty, there would have been no doubt, that the district court would have had

The General Smith.

jurisdiction but there being, by the local law, no specific lien to be enforced, there could be no ground to maintain a suit in rem.

Winder, contrà, insisted, that the question of jurisdiction and lien were intimately and inseparably connected. In England, the lien has been denied to attach, in the case of domestic ships, because the courts of common law, in their unreasonable jealousy of the admiralty jurisdiction, would not permit the only court, which could enforce the lien, to take cognisance of it. Consequently, the lien has been lost with the jurisdiction. But the universal maritime law, as administered in the European courts of admiralty, recognises the lien, in the case of a domestic, as well as a foreign ship: Stevens v. The Sandwich, 1 Pet. Adm. 233, note; De Lovio v. Boit, 2 Gallis. 400, 468, 475; and commercial policy demands that it should be enforced in both cases.

*443] *March 10th, 1819. STORY, Justice, delivered the opinion of the court.-No doubt is entertained by this court, that the admiralty rightfully possesses a general jurisdiction in cases of material-men; and if this had been a suit in personam, there.would not have been any hesitation in sustaining the jurisdiction of the district court. Where, however, the proceeding is in rem, to enforce a specific lien, it is incumbent upon those who seek the aid of the court, to establish the existence of such lien in the particular case. Where repairs have been made, or necessaries have been furnished to a foreign ship, or to a ship in a port of the state to which she does not belong, the general maritime law, following the civil law, gives the party a lien on the ship itself for his security; and he may well maintain a suit in rem, in the admiralty, to enforce his right. But in respect to repairs and necessaries in the port or state to which the ship belongs, the case is governed altogether by the municipal law of that state; and no lien is implied, unless it is recognised by that law. Now, it has been long settled, whether originally upon the soundest principles, it is now too late to inquire, that by the common law, which is the law of Maryland, material-men and mechanics furnishing repairs to a domestic ship, have no particular lien upon the ship itself for the recovery of their demands. A ship-wright, indeed, who has taken a ship into his own possession to repair it, is not bound to part with the possession, until he is paid for the repairs, any more than any other artificer. But if he has once parted with the possession, *or *444] has worked upon it, without taking possession, he is not deemed a privileged creditor, having any claim upon the ship itself.

Without, therefore, entering into a discussion of the particular circumstances of this case, we are of opinion, that here there was not, by the principles of law, any lien upon the ship; and, consequently, the decree of the circuit court must be reversed.

Decree reversed.(a)

(a) See The Aurora, 1 Wheat. 96, 103, in which case a lien of material-men on foreign ships was recognised by this court. The common law is the municipal law of most of the states, as to supplies furnished to domestic ships: but the legislature of New York has, by statute, given a lien to ship-wrights, material-men and suppliers of ships, for the amount of their debts, whether the ships are owned within the state or

McIver v. Walker.

not. Acts of 22d sess. c. 1, and 40th sess. c. 59. This lien existing by the local law, may consequently be enforced, upon the principle of the above case in the text, by a suit in rem in the admiralty.

McIVER'S Lessee v. WALKER et al.

Land-law of Tennessee.

If there be nothing in a patent to control the call for course and distance, the land must be bounded by the courses and distances of the patent, according to the magnetic meridian; but it is a general principle, that the course and distance must yield to natural objects called for in the patent.

All lands are supposed to be actually surveyed, and the intention of the grant is, to convey the land according to the actual survey; *consequently, distances must be lengthened or [*445 shortened, and courses varied, so as to conform to the natural objects called for, If a patent refer to a plat annexed, and if, in that plat, a water-course be laid down as running through the land, the tract must be so surveyed as to include the water-course, and to conform as nearly as may be to the plat, although the lines, thus run, do not correspond with the courses and discourses mentioned in the patent; and although neither the certificate of survey nor the patent call for that water-course.

ERROR to the Circuit Court for the District of East Tennessee. This was an ejectment brought in that court, by the plaintiff in error, against the defendants. Upon the first trial of the cause, a judgment was rendered in the circuit court in favor of the defendants, and upon that judgment a writ of error was taken out, and the judgment reversed by this court, at February term 1815 (9 Cranch 173); and the cause was sent back to be tried according to certain directions prescribed by this court.

As the opinion given by this court upon the reversal of the first judg ment contains a statement of the facts given in evidence upon the first trial, it is deemed proper to insert the opinion in this place. It is as follows:

1 It was decided in Peyton v. Howard, 7 Pet. 324, that when the state law give a lien for supplies furnished' to a domestic vessel, in her home port, it may be enforced by a proceeding in rem in the court of admiralty; and in 1844, in pursuance of authority conferred upon the supreme court by the acts of 8th May 1792, and of the 23d August 1842, it adopted, what is know as the 12th rule in admiralty, which provided, that "in all suits by material-men for supplies, 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 and owner alone in personam; and the like proceeding in rem shall apply to cases of domestic ships, where, by the local law, a lien is given to materialmen for supplies, repairs and other necessaries." Under this rule, the jurisdiction in rem was always sustained. The state lien, however, was enforced, not as a right which the court was bound to carry into execution, upon the application of the party, but as a discretionary one, which the court might lawfully exercise, for the purposes of justice, where it did not involve controversies beyond the limits of admiralty jurisdic

tion. The St. Lawrence, 1 Black 530, In many of the states, however, the laws were found not to harmonize with the principles and rules. of the maritime code, and embarrassed the federal courts in applying them. And accordingly, in 1859, the last clause of the 12th rule was modified, so as to read as follows: "And the like proceeding in personam, but not in rem, shall apply to domestic ships for supplies, repairs or other necessaries." This rule, whilst in force, took away the power from the district courts to enforce such claims against domestic vessels by process in rem. The Adele, 1 Ben. 309; The Circassian, 11 Bl. C. C. 472. But in 1872, the rule was again amended, so as to provide, that "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." And this restored the old rule, giving the proceeding in rem to enforce liens created by the state law. The Lottawanna, 21 Wall. 558. And see Norton v. Switzer, 93 U. S. 366-66; The Mary Gratwick, 2 Sawyer 342; The Lewellen, 4 Biss. 156, 167.

McIver v. Walker.

"On the trial of this cause, the plaintiff produced two patents for 5000 acres each, from the state of North Carolina, granting to Stokely Donelson (from whom the plaintiff derived his title), two several tracts of land, lying on Crow creek, the one, No. 12, beginning at a box elder standing on a ridge, corner to No. 11, &c., as by the plat hereunto annexed will appear. The plat and certificate of survey were annexed to the grant. The plaintiff *446] proved that there were eleven other grants of the same date *for 5,000 acres each, issued from the state of North Carolina, designated as a chain of surveys joining each other, from No. 1 to No. 11, inclusive, each calling for land on Crow creek as a general call, and the courses and distances of which, as described in the grants, are the same with the grants produced to the jury. It was also proved, that the beginning of the first grant was marked and intended as the beginning corner of No. 1, but no other tree was marked, nor was any survey ever made, but the plat was made out at Raleigh, and does not express on its face that the lines were run by the true meridian. It was also proved, that the beginning corner of No.. 1, stood on the north-west side of Crow creek, and the line running thence down the creek, called for in the plat and patent, is south, forty degrees west. It further appeared, that Crow creek runs through a valley of good land, which is on an average about three miles wide, between mountains unfit for cultivation, and which extends from the beginning of survey No. 1, in the said chain of surveys, until it reaches 'below survey No. 13, in nearly a straight line, the course of which is nearly south, thirty-five degrees west, by the needle, and south, forty degrees west, by the true meridian; that on the face of the plats annexed to the grants, the creek is represented as running through and across each grant. The lines in the certificate of survey do not expressly call for crossing the creek; but each certificate and grant calls generally for land lying on Crow creek. If the lines of the tracts herein before mentioned, No. 12 and 13, in the said chain of surveys, be run *447] according to the course of *the needle and the distances called for, they will not include Crow creek, or any part of it, and will not include the land in possession of the defendants. If they be run according to the true meridian, or so as to include Crow creek, they will include the lands in possession of the defendants. Whereupon, the counsel for the plaintiffs moved the court to instruct the jury, 1st. That the lines of the said lands ought to be run according to the true meridian, and not according to the needle. 2d. That the lines ought to be run so as to include Crow creek, and the lands in possession of the defendants. The court overruled

both these motions, and instructed the jury, that the said grant must be run according to the course of the needle, and the distances called for in the said grants, and that the same could not legally be run, so as to include Crow creek, and that the said grants did not include the lands in possession of the defendants. To this opinion, an exception was taken by the plaintiff's counsel. A verdict and judgment were rendered for the defendants, and that judgment is now before this court on a writ of error.

"It is undoubtedly the practice of surveyors, and the practice was proved in this cause, to express in their plats and certificates of survey, the courses which are designated by the needle; and if nothing exists to control the call for course and distance, the land must be bounded by the courses and distances of the patent, according to the magnetic meridian.

McIver v. Walker.

But it is a general principle, that the course and distance must yield to natural objects called for in the patent. All lands are supposed to be actually surveyed, *and the intention of the grant is to convey the [*448 land, according to that actual survey; consequently, if marked trees and marked corners be found, conformable to the calls of the patent, or if water-courses be called for in the patent, or mountains, or any other natural objects, distances must be lengthened or shortened, and courses varied, so as to conform to those objects. The reason of the rule is, that it is the intention of the grant to convey the land actually surveyed, and mistakes in courses or distances are more probable, and more frequent, than in marked trees, mountains, rivers, or other natural objects, capable of being clearly designated, and accurately described. Had the survey in this case been actually made, and the lines had called to cross Crow creek, the courses and distances might have been precisely what they are, it might have been impracticable to find corner, or other marked trees, and yet the land must have been so surveyed as to include Crow creek. The call in the lines of the patent, to cross Crow creek, would be one to which course and distance must necessarily yield. This material call is omitted, and from its omission arises the great difficulty of the cause. That the lands should not be described as lying on both sides of Crow creek, nor the lines call for crossing that creek, are such extraordinary omissions as to create considerable doubt with the court, in deciding whether there is any other description given in the patent, of sufficient strength to control the call for course and distance. The majority of the court is of opinion, that there is such a description. The *patent closes its description of the land granted, [*449 by a reference in the plat which is annexed. The laws of the state require this annexation. In this plat, thus annexed to the patent, and thus referred to as describing the land granted, Crow creek is laid down as passing through the tract. Every person having knowledge of the grant, would also have knowledge of the plat, and would by that plat be instructed, that the lands lay on both sides the creek. There would be nothing to lead to a different conclusion but a difference of about five degrees in the course, should he run out the whole chain of surveys in order to find the beginning of No. 12; and he would know that such an error in the course would be corrected by such a great natural object as a creek, laid down by the surveyor in the middle of his plat. This would prove, notwithstanding the error in the course, that the lands on both sides of Crow creek were intended to be included in the survey, and intended to be granted by the patent.

"It is the opinion of the majority of this court, that there is error in the opinion of the circuit court for the district of East Tennesee, in this, that the said court instructed the jury, that the grant under which the plaintiff claimed, could not be legally run so as to include Crow creek; instead of directing the jury that the said grant must be so run as to include Crow creek, and to conform, as near as may be, to the plat annexed to the said grant; wherefore, it is considered by this court that the said judgment be reversed and annulled, and the cause be remanded [*450 *to the said circuit court, that a new trial may be had according to law." (9 Cranch 173.)

Upon the cause being remanded to the circuit court for a new trial, the