made useful for speeding or racing purposes. Other patents in the record also show clearly that neither the idea nor the combination was new to Elliott, particularly the Thomas patent, No. 399,362, the Leggett patent, No. 422,349, the Brown patent, No. 485,605, and the Whipple patent, No. 319,871, issued in 1885. These patents leave very little room for invention in the adaptation of pneumatic tires to the wheels of carriages, whether large or small.

We find no error in the record, and the decree of the court below is affirmed.

(100 Fed. 104.)

THE IRIS.

WOODWORTH v. NUTE et al.

(Circuit Court of Appeals, First Circuit. February 2, 1900.)

No. 280.

1. MARITIME LIENS-ADMIRALTY JURISDICTION-MARITIME CONTRACTS.

It is settled that contracts to furnish labor or materials for the repair of a vessel, whether made on the credit of the vessel, or the personal credit of the person contracting therefor, are maritime, and within the admiralty jurisdiction.1

2. SAME-CREATION BY STATE STATUTES.

It is within the unrestricted power of a state to impose liens on domestic vessels for repairs made or necessaries furnished in the ports of the state; and a suit for the enforcement of such statutory lien may be maintained in a court of admiralty, although no lien would be given under the same circumstances by the general maritime law, as where repairs were made under contract with the owner in the home port, and no agreement for a lien, or mutual understanding that such repairs were furnished on the credit of the vessel, is shown.2

3. SAME REPAIRS OR CONSTRUCTION.

Work done and materials furnished in fitting a steamer, which is then a seagoing vessel, for a different trade from that for which she was originally designed, are to be taken as having been furnished for repairs, and not for construction, although the expenditures therefor are large as compared with the value of the vessel.

4. SAME-REPAIRS UNDER CONTRACT WITH EQUITABLE OWNER-MassachuSETTS STATUTE.

Where a vessel is sold, and, after part payment of the purchase price, is delivered to the purchaser under an agreement by which he is authorized to make alterations and repairs at his own expense, the purchaser becomes the equitable owner, and may charge the vessel with liens, under Pub. St. Mass. c. 192, § 14, which gives a lien to one furnishing labor or materials for the repair of a vessel under a contract with the owner. 5. SAME.

It is not essential to the right to a lien under such statute that the repairs should have been made under a mutual understanding between the contracting parties that credit was given to the vessel.

1 As to admiralty jurisdiction as to matters of contract, see note to The Richard Winslow, 18 C. C. A. 347, and, supplementary thereto, note to Boutin v. Rudd, 27 C. C. A. 530.

2 As to admiralty jurisdiction to enforce liens created by state laws, see note to The Electron, 21 C. C. A. 21.

6. ADMIRALTY-EQUITABLE POWERS-RELIEF AGAINST EXCESSIVE STIPULATION. Where the claimant of a vessel seized in admiralty upon a libel for the enforcement of liens thereon, for which such claimant is not personally liable, to secure its release gives a stipulation without first having the vessel appraised, he may be permitted, on seasonable application, to show that such stipulation was given under a misapprehension either as to the nature of the obligation or the value of the vessel; and, if it appears that he is equitably entitled thereto, the court should reduce the amount of the stipulation to the actual value of the vessel.

Appeal from the District Court of the United States for the District of Massachusetts.

For opinion in district court, see 88 Fed. 902.

Frederic Dodge (Gaston, Snow & Saltonstall, on the brief), for appellant.

Eugene P. Carver (Edward E. Blodgett, on the brief), for appellees. Before COLT and PUTNAM, Circuit Judges, and ALDRICH, District Judge.

PUTNAM, Circuit Judge. The principles involved in this case have been so obscured by apparently conflicting decisions that they require thorough consideration, even at the cost of a protracted discussion.

The proceedings out of which this appeal arose grew out of alleged liens given by the Public Statutes of Massachusetts (chapter 192, § 14), as follows:

"When, by virtue of a contract, expressed or implied, with the owners of a vessel, or with the agents, contractors, or sub-contractors of such owners, or with any of them, or with a person who has been employed to construct, repair, or launch a vessel or to assist therein, money is due for labor performed, materials used, or labor and materials furnished in the construction, launching, or repairs of, or for constructing the launching ways for, or for provisions, stores, or other articles furnished for or on account of such vessel in this commonwealth, the person to whom such money is due shall have a lien upon the vessel, her tackle, apparel and furniture, to secure the payment of such debt, and such lien shall be preferred to all others on such vessel except that for mariners' wages, and shall continue until the debt is satisfied."

This statute was under consideration in The Glide, 167 U. S. 606, 17 Sup. Ct. 930, 42 L. Ed. 296, and in the cases in the supreme judicial court of Massachusetts out of which The Glide arose, namely, Atlantic Works v. The Glide, 157 Mass. 525, 33 N. E. 163, and 159 Mass. 60, 34 N.E. 258.

When the labor and materials were furnished for which liens are now claimed, the Iris formed a portion of the personal property domestic to Massachusetts, and was within that state; and, unless there is some peculiar reason to the contrary, she was subject to the control of the local legislature. No reason is suggested why it was not within the privilege of that legislature to create liens to arise out of local contracts with the owner of a domestic vessel, or with one who had control by consent of the owner, to the same extent that it might provide liens on buildings to be erected or repaired, or for labor and materials furnished in the reparation of personal property whose locus was in no sense maritime. Nowhere in the decisions of the

supreme court with reference to this topic is there any suggestion that it is not in the power of a state, by legislation which is not retroactive, to impose a lien on a domestic vessel under the same conditions and to the same extent as it may impose liens on other property within its jurisdiction.

On the other hand, in several cases, nearly all of which are cited in The Glide, ubi supra, the power of state legislatures in this particular is expressed in unqualified terms. Their general power over personal property domestically situated, with reference to the order of titles and liens, even when the owners are nonresidents, is fully maintained in Green v. Van Buskirk, 5 Wall. 307, 18 L. Ed. 599, and 7 Wall. 139, 19 L. Ed. 109, and in a number of other cases in which the principles of Green v. Van Buskirk have been applied by the supreme court. The rule was especially elaborated and applied in Walworth v. Harris, 129 U. S. 355, 9 Sup. Ct. 340, 32 L. Ed. 712. Accordingly, in The General Smith, 4 Wheat. 438, 443, 4 L. Ed. 609, cited in The Glide, at page 610, 167 U. S., page 931, 17 Sup. Ct., and page 297, 42 L. Ed., it is said, "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 recognized by that law." So, in The Planter, 7 Pet. 324, 341, 8 L. Ed. 700, cited in The Glide, at page 611, 167 U. S., page 931, 17 Sup. Ct., and page 297, 42 L. Ed., it is stated as follows: "If the service was to be performed in a place within the jurisdiction of the admiralty, and the lien given by the local law of the state of Louisiana, it will bring the case within the jurisdiction of the court" (meaning the district court). So, in The St. Lawrence, 1 Black, 522, 529, 530, 17 L. Ed. 180, cited in The Glide, at page 615, 167 U. S., page 933, 17 Sup. Ct., and page 299, 42 L. Ed., Chief Justice Taney said that in The General Smith "the court held that where, upon the principles of the maritime code, the supplies are presumed to be furnished upon the credit of the vessel, or where a lien is given by the local law, the party is entitled to proceed in rem in the admiralty court to enforce it." So, in The J. E. Rumbell, 148 U. S. 1, 12, 13 Sup. Ct. 498, 37 L. Ed. 345, the same unqualified language is used.

By the maritime law, no lien for supplies or labor furnished a vessel is presumed to arise on a contract made by the owner, and proof is required that the minds of the parties to the contract met on a common understanding that such a lien should be created. Neither is it sufficient that the party who furnished the labor or supplies gave credit, so far as his own intentions were concerned, to the vessel, or would not have furnished them except on the belief that he was acquiring a lien for them. In this respect the status is different from what it is with reference to liens for labor and supplies furnished a vessel on the order of her master. This general rule is stated in The St. Jago de Cuba, 9 Wheat. 409, 417, 6 L. Ed. 122; Thomas v. Osborn, 19 How. 22, 29, 40, 43, 15 L. Ed. 534; The Grapeshot, 9 Wall. 129, 136, 137, 19 L. Ed. 651; The Kalorama, 10 Wall. 204, 214, 215, 19 L. Ed. 944; The Emily Souder, 17 Wall. 666, 671, 21 L. Ed. 683; and The Stroma, decided by the circuit court of appeals for the Second circuit, and reported in 3 C. C. A. 530, 53 Fed. 281, 283. It is expressly

stated to the same effect in The Valencia, 165 U. S. 264, 270, 271, 17 Sup. Ct. 323, 41 L. Ed. 710.

This distinction has been emphasized with regard to alleged liens for supplies furnished on the order of the charterers of a vessel, especially where there was no apparent necessity for pledging her credit. The Kate, 164 U. S. 458, 17 Sup. Ct. 135, 41 L. Ed. 512; The Valencia, ubi supra, at page 271, 165 U. S., page 323, 17 Sup. Ct., and page 710, 41 L. Ed.; and The Samuel Marshall, decided by the circuit court of appeals for the Sixth circuit, reported in 4 C. C. A. 385, 54 Fed. 396, and cited in The Valencia, at pages 271 and 272, 165 U. S., page 323, 17 Sup. Ct., and page 710, 41 L. Ed. In The Philadelphia and The Baltimore, 21 C. C. A. 501, 75 Fed. 684, decided by the circuit court of appeals for the First circuit, where it was maintained that the facts were similar to those in The Kate and The Valencia, the question which arose in those cases was laid aside, because the court found that the supplies were obtained under such circumstances that they were to be held as furnished in a foreign port on the orders of the master; thus bringing the circumstances within The Patapsco, 13 Wall. 329, 20 L. Ed. 696, and within the supposed hypothetical case stated in The Kate, at pages 470 and 471, 164 U. S., page 135, 17 Sup. Ct., and page 512, 41 L. Ed. In respect to this entire subjectmatter, there is a distinction recognized throughout between supplies, on the one hand, and seamen's wages and contracts of affreightment, on the other, as to which liens presumptively arise.

This distinction between supplies ordered by the master and those ordered by the owner was given in detail, and practically applied, in The Regulator, 1 Hask. 17, Fed. Cas. No. 11,665; The Advance (decided by the circuit court of appeals for the Second circuit) 19 C. C. A. 194, 72 Fed. 793; The Kalorama, already cited; and The Stroma, already cited.

It is necessary to notice what was said in The Kate, ubi supra, at page 471, 164 U. S., page 140, 17 Sup. Ct., and page 518, 41 L. Ed., to the effect that, though the statute of New York giving a lien was general in its terms, yet, "reasonably construed," it was not to be held to "assume to give a lien where supplies are furnished to a foreign vessel upon the order of the charterer, with knowledge upon the part of the person or corporation furnishing them that the charterer does not represent the owners, but, by contract with them, has undertaken to furnish such supplies at his own cost." The court also at the same place laid aside the question whether, if so interpreted, the statute would not be repugnant to the commerce clause of the constitution. No question of the latter character can arise in this case, because, while the Kate was a foreign vessel at the port where the supplies were furnished her, here the vessel is domestic, and therefore presumably subject to the general rules which we have stated with reference to the power to affect the title of property domestically located, and to give liens thereon.

It is not necessary to state in detail the undisputed facts of the case, because they are mainly given in the opinion of the learned judge of the district court. It is sufficient to say that the person holding the legal title to the vessel, who is now the claimant, had

given an agreement for her sale for $7,000, of which $3,000 had been paid, and the corporation agreeing to purchase obligated itself to pay the balance. The agreement also provided that the purchasing party might make alterations and repairs "at the expense" of that party. The repairs permitted were of such a character as to imply that the purchasing party should take possession of the vessel, which it did; and all the supplies and labor in issue were obtained on contracts made by it, and the claimant was no party thereto, and in no way personally liable on them.

It is claimed that the labor and supplies were for construction, and not for repairs. It is true that the expenditures were large, compared with the value of the vessel, and that she was, through them, readapted for a trade for which she had not been originally designed. Nevertheless, with reference to the questions which arise in this case, they were not analogous to work done in the construction of a new vessel, nor even to the reconstruction of one which, through wreck or age, had become unsuitable to navigate the seas. At the time the labor and supplies were furnished, she was a seagoing steamer; and, although her repairs were made under the supervision of a United States inspector of steam vessels, they were only such as were found necessary to adapt her for her new route. Therefore the labor and supplies are to be taken as furnished for repairs, and not for construction, as those expressions are understood in the various decisions of the federal courts.

One Bartlett had general charge of the work in behalf of the purchaser of the vessel, and it seems to have been assumed by the libelants that he stood in the position of the master of the Iris. So far as any question in this case is concerned, this is not a just assumption. It is true, he had been a master mariner; but he had never been licensed as master of a steam vessel, and he could not have been put in command of the Iris. He was merely an agent superintending her repairs. It is necessary to have this fact distinctly in mind, in order that it may clearly appear that the relations of the parties and the vessel to the repairs were not affected by the peculiar presumptions which arise from the ordering of necessary supplies by the master of a vessel, acting technically as such, and that the rules which we have stated about those not ordered by the master apply to this case.

It is urged on the court that no lien attaches in this case because the contract was not made with the claimant, who had the legal title, nor with any person in privity with him, but with the agreed purchaser. It is maintained that this brings the case within The Kate, ubi supra, and The Valencia, ubi supra,-especially within the expression which we have cited from The Kate, at page 471, 164 U. S., page 140, 17 Sup. Ct., and page 518, 41 L. Ed., that the statute of New York giving a lien, "reasonably construed, does not assume to give a lien where supplies are furnished to a foreign vessel upon the order of the charterer, with knowledge upon the part of the person or corporation furnishing them that the charterer does not represent the owners, but by contract with them has undertaken to furnish such supplies at his own cost." This raises the first principal ques

40 C.C.A.-20