plea. 1. This court is not required to re-examine the temporarily borrowed are to be treated as cap- | State judgment, when reviewed-opinion—bad ital and taxable as such. The amounts borrowed from time to time must necessarily vary and, if they are treated as additions to the capital, the aggregate amount of the capital must be constantly changing. It would, therefore, be necessary for the assessors of the government, in order to determine the capital to be taxed every month, to average the sums borrowed, and in adopting any such course they would be obliged to interpolate into the statute the word 3. Where a plea, although to the whole indict"average" which was stricken out by the Amendment, met only part of it, it will be held bad upon ment of 1866. demurrer. We are satisfied that the term as used in the statute was intended to embrace only the fixed capital employed in the business of banking, as distinguished from deposits and temporary loans made in the regular course of business, and that no distinction is to be made in this respect between the capital of individual bankers and that of banking corporations. It is undoubtedly true, as stated by the Attorney-General, that capital used in the business of banking is none the less so because it is borrowed. The mere fact that the money, permanently invested in the business, is borrowed does not alter its character as capital. The question here is, whether money not thus permanently invested, but borrowed temporarily in the ordinary course of business to meet an emergency, is capital; and we are clear that the term does not, either in common acceptation or within the meaning of the statute, embrace loans of that character. After controversies had arisen as to the interpretation to be given to the statute, upon the question at issue in this case, between bankers and the government, Congress passed the Act of 1872, defining the meaning of the terms "cap ital employed," in the 110th section, and enacted that they "Shall not include money borrowed or received from day to day in the usual course of business from any person not a partner of, or interested in the said bank, association or firm." 17 Stat. at L., 256. This enactment was evidently intended to remove any doubt previously existing as to the meaning of the statute and declare its true construction and meaning. Had it been intended to apply only to cases subsequently arising, it would undoubt edly have so provided in terms. Judgment affirmed. JOSHUA F. BAILEY, Collector, v. FRANK WORK ET AL. No. 540. This case involves the same question which was considered and determined in the case of Bailey v. Clark, just decided [ante, 651], and upon the authority of that case, the judgment is affirmed. Cited 14 Blatchf., 59; 2 Low., 543. HENRY H. MOORE, Piff. in Err., v. STATE OF MISSISSIPPI. (See S. C., 21 Wall., 636-640.) judgment of a state court simply because a federal question may have been decided. To give this court jurisdiction it must appear that such a question was necessarily involved in the decision. question was not necessarily involved, and does not 2. If the record shows upon its face that a federal show that one was raised, this court will not go outside of it, to the opinion or elsewhere, to ascertain whether one was in fact decided. [No. 185.] Argued Feb. 10, 1875. J. Decided Apr. 19, 1875. N ERROR to the Supreme Court of the State The case is stated by the court. Messrs. T. W. Bartley and Geo. F. Edmunds, for defendant in error. Mr. Chief Justice Waite delivered the opinion of the court: The indictment in this case charged Moore in five counts with selling lottery tickets, and in two with keeping a gaming table. He pleaded in bar to the whole indictment, “That, in issuing the ticket or certificate mentioned and specified in the indictment, he was acting as the agent of the Mississippi Agricultural, Educational and Manufacturing Aid Society, a body politic and corporate, which was duly incorporated by an Act of the Legislature of the State of Mississippi, approved Feb. 16, 1867; and that, prior to the adoption of the present Constitution of the State, said Mississippi Agricultural, Educational and Manufacturing Aid Society fully complied with all the provisions of said Act of incorporation." The charge of issuing tickets or certificates was made only in five out of the seven counts in the indictment. The State demurred to this plea, because, 1. It showed no valid bar to the prosecution; and, 2. It amounted to the general issue and nothing more. The court sustained the demurrer. Moore then pleaded not guilty and went to trial. The jury returned a verdict of guilty generally, and the proper judgment was entered thereon. No bill of exceptions was taken at the trial, and no error is specifically stated in the record. The case was taken to the Supreme Court of the State, by writ of error, and the judgment of the court below was there affirmed. The record proper does not show what errors were assigned in the Supreme Court. The present writ of error is prosecuted to obtain a re-examination of the case. The only error relied upon in the argument here relates to the action of the Circuit Court of the State in sustaining the demurrer to the plea. We arenot required to re-examine the judgment of a state court simply because a federal NOTE.-Jurisdiction of U. S. Supreme Court where federal question arises, or where is drawn in question statute, treaty or Constitution of U. S. See note to Matthews v. Zane, 8 U. S. (4 Cranch), 382; note to Martin v. Hunter, 14 U. S. (1 Wheat.), 304; and note to Williams v. Norris, 25 U. S. (12 Wheat.), 117. question may have been decided. To give us | jurisdiction it must appear that such a question was necessarily involved in the decision." Armstrong v. Treas., etc., 16 Pet., 282. The old rule, established by early cases, restricted our inquiries as to the existence and decision of the question "to the face of the record." Previous to the Act of 1867, R. S., sec. 709, it was uniformly held, except as to the State of Louisiana, where a peculiar practice prevails, that we would not look into the opinions of the courts to ascertain what had been decided. Gibson v. Chouteau, 8 Wall., 317 [75 U. S., XIX.. 317]; Rector v. Ashley, 6 Wall., 142 [73 U. S., XVIII., 733]; Williams v. Norris, 12 Wheat., 117; R. R. Co. v. Marshall, 12 How., 165; Cousin V. Blanc, 19 How., 202 [60 U. S., XV.,601]. Since that Act, however, in Murdock v. Memphis [ante, 429], we intimated that we might, under some circumstances, examine those opinions, when properly authenticated, as far as might be useful for the purpose of ascertaining that fact, but at the same time were careful to say that, "After all, the record of the case, its plead ings, bills of exceptions, judgments, evidence, in short, its record, whether it be a case in law or equity, must be the chief foundation of inquiry; and while we are not prepared to fix any absolute limit to the sources of inquiry under the new Act, we feel quite sure it was not intended to open the scope of it to any loose range of investigation." We are not now called upon to fix this limit. It is sufficient for all the purposes of this case to hold as we do, that if the record shows upon its face that a federal question was not necessarily involved and does not show that one was raised, we will not go outside of it, to the opinion or elsewhere, to ascertain whether one was in fact decided. In this case the record shows clearly upon its face that the decision of such a question was not required. The indictment was for selling lottery tickets and keeping a gaming table. The plea, although to the whole indictment, met only part of it. The charge of keeping a gaming table was left entirely unanswered. A plea to be good as a bar to the whole indictment, must meet the whole case. If it does not, it will be held bad upon demurrer. The demurrer to this plea was, therefore, properly sustained upon this ground. Such being the case it is a matter of no consequence to us that the court may have gone further and decided a federal question. The decision of such a question was not necessarily involved in the determination of the cause. It follows that this writ of error must be dismissed. Cited-98 U. S., 142. CATHARINE A. RODD, Admrx. of the Succession of EDWARD W. RODD ET AL., Appt., v. HENRY G. HEARTT, DANIEL C. MCCAN ET AL., AND THE PROCEEDS OF THE SALE OF THE STEAMER LOTTAWANNA. (See S. C., "The Lottawanna," 21 Wall., 558-609.) Maritime law, foundation of—in different countries-system in force when Constitution was adopted-limit of maritime law, a judicial question-courts cannot change it-decisions of this court-power of Congress of Statesmaterial men have no lien on vessel in home port, by maritime law-when such lien can be created by a State-petition for funds in court -12th Admiralty Rule-mortgagee's right to surplus funds. *1. Whilst the general maritime law is the basis of the maritime law of the United States, as well as of other countries, it is only so far operative in this or any country as it is adopted by the laws and usages thereof. It has no inherent force of its own. proach a merely municipal character, the received 2. In particular matters, especially such as apmaritime law may differ in different countries, without affecting the general integrity of the system as a harmonious whole. familiar to the lawyers and statesmen of this coun3. The general system of maritime law which was try when the Constitution was adopted, was intended and referred to when it was declared in that inStates shall extend to all cases of admiralty and strument that the judicial power of the United maritime jurisdiction." Thus adopted, it became the maritime law of the United States, operating uniformly in the whole country. 4. The question as to the true limits of maritime law and admiralty jurisdiction is exclusively a judicial question, and no state law or Act of Congress can make it broader or narrower than the judicial power may determine those limits to be. But what the law is within those limits, assuming the general maritime law to be the basis of the system, depends on what has been received as law in the maritime may have been competent to affect it. usages of this country, and on such legislation as 5. The decisions of this court, illustrative of these sources and giving construction to the laws and when these fail us, we must resort to the principles Constitution, are especially to be considered; and by which they have been governed. 6. It is settled by repeated adjudications of this court, that material men, furnishing repairs and supplies to a vessel in her home port, do not acquire thereby any lien upon the vessel by the general maritime law, as received in the United States. of the Constitution contemplated that the maritime 7. Whilst it cannot be supposed that the framers law should remain unchanged, the courts cannot change it; they can only declare it. If within its other than those of procedure, it must be made by proper scope any change is desired in its rules, the Legislative Department. 8. Semble, that Congress, under the power to regulate commerce, has authority to establish a lien on vessels of the United States in favor of material men, uniform throughout the whole country. 9. In particular cases in which Congress has not exercised the power of regulating commerce, with which it is invested by the Constitution, and where the subject does not, in its nature, require the exclusive exercise of that power, the States, until Congress acts, may continue to legislate. favor of material men for furnishing necessaries to 10. Hence, liens granted by the laws of a State in a vessel in her home port in said State are valid, though the contract to furnish the same is a maritime contract, and can only be enforced by proceedings in rem in the District Courts of the United States. II. Any person having a specific lien on or a vested right in a surplus fund in court, may apply by petition for the protection of his interest under the 43d Admiralty Rule. 12. Separate libels were filed in 1871, against a nished at her home port, and for the amount due steamboat for wages, for salvage, for supplies fur on a mortgage: held, on the evidence, that the lien for supplies had not been perfected under the state * Head notes by Mr. Justice BRADLEY. NOTE-Lien for repairs and necessaries for vessel and for supplies, salvage and freight; proceedings in rem for, See note to Blaine v. The Charles Carter, 8 U. S. (4 Cranch), 328; note to The Palmyra, 25 U. S. (12 Wheat.), 1; and note to The General Smith, 17 U. S. (4 Wheat.), 438. law; and if it had been that the libels for such sup- Argued Apr. 1, 1874. Ordered for re-argument Ann., 612; Loeb v. Blum, 25 La. Ann., 232. II. It is settled as a part of the general maritime law in force in the United States, that, in the case of materials and supplies to a domestic vessel in her home port, no maritime lien exists or can be implied. Although the contract is maritime, there is no maritime lien. This has been the law as established and applied by this court for more than half a century. See per Clifford, J., in Wilson v. Bell, October Term, 1873 (ante, 259), citing The General APPEAL from the Circuit Court of the Unit- Smith, decided in 1819, 4 Wheat, 443. ed States for the District of Louisiana. The case is fully stated by the court. Messrs. Thomas J. Semmes, William Allen Butler, Robt. Mott and Andrew Boardman, for appellants: I. By the law of Louisiana, all privileges and liens must be recorded, to have effect against third persons, which was not done by any of the material men before the court. The Constitution of Louisiana says (art. 123): "But no mortgage or privilege shall hereafter affect third parties, unless recorded in the parish where the property to be affected is situated." The law of Louisiana says (Rev. Civ. Code, art. 3237): "The following debts are privileges on the price of ships and other vessels in the order in which they are placed: 8. Sums due to sellers, to those who have furnished materials to workmen employed in the construction, if the vessel has never made a voyage, and those due to creditors for supplies, labor, repairing, victuals, armament and equipment.' Art. 3273. "Privileges are valid against third persons from the date of the recording of the Act or evidence of indebtedness as provided by law." Art. 3274. "No privilege shall have effect against third persons unless recorded, in the manner required by law, in the parish where the property to be affected is situated. It shall confer no preference on the creditor who holds it over creditors who have acquired a mortgage, unless the act or other evidence of the debt is recorded on the day that the contract was entered into." Rev. Stat., 604. Sec. 3093. "All persons entitled to a mortgage or privilege on the property of another person, shall cause such mortgage or privilege to be recorded in the mortgage book of the parish in which the mortgageable property is situated. If the mortgage or privilege be a notarial or public act, the same shall be recorded; if it be an act under private signature, note or other obligation in writing, it must be proved up and recorded as a private signature act; if the same be not in writing, the person claiming the mortgage or privilege, his agent, or some person having knowledge of the fact, must make adavit of all the facts on which it is based; sta. the amount and all the necessary facts, which affidavit shall be recorded in the mortgage book as other acts of mortgage or privilege." All privileges must, before they can have effect in Louisiana as liens, be recorded. White v. Bird, 23 La. Ann., 270; Foley v Ha gan, 23 La. Ann., 286; Beard v. Chappell, 23 La. Ann., 695; Marmillon v. Archinard, 24 La. It is not an open question, and should not be reopened. As early as 1815, four years before the decision of The General Smith, Judge Story had said in The Jerusalem, 2 Gall., 345, 349: "I hold that the contract for repairs in this case, being of a foreign ship, is to be governed by the maritime law and created a lien. Whether, in the case of a domestic ship, material men have a lien for supplies and repairs furnished at the port where the owner resides, I give no opinion. There are great authorities on both sides of the question.' He cites The Sandwich, decided by Judge Winchester in Maryland (Stevens v. The Sandwich, 1 Pet., Adm. Dec., 233, note), as a decision in support of the lien, by a judge, Than whom no man in the United States ever better understood the true principles and doctrine of the admiralty law.' 46 Other district judges held that the maritime lien did not arise. "Some uncertainty for a time prevailed upon the subject until the same was examined by this court, when the question was set at rest. Clifford, J., in The Kalorama, 10 Wall., 208, 212 (77 U. S., XIX., 942, 943). In the St. Jago de Cuba, 9 Wheat., 409, March 15, 1824, Mr. Justice Johnson delivered the opinion of the court: "That such claim cannot be sustained against a vessel in her home port.' In 1827, the case of Ramsay v. Allegre, 12 Wheat., 611 (January Term, 1827), came up on appeal from the Circuit Court of Maryland, in which a libel in personam had been filed by a material man against the owner of a domestic vessel. It appeared that he had accepted a negotiable promissory note for the debt, which was outstanding, and on this ground alone, the decree dismissing the libel was affirmed. But this case presented the question whether the admiralty court had jurisdiction at all in personam where it could not exercise a jurisdiction in rem. The court declined to consider the question of jurisdiction (per Marshall, Ch. J., page 614), but Judge Johnson delivered an opinion on this point (pp. 614, 640), in which he reviewed the authorities and insisted that the admiralty had no jurisdiction in cases of materials furnished in a home port, either in personam or in rem, and he claimed that the case of The General Smith was not an authority to the effect that they had such jurisdiction, and that Judge Story's dictum, that if the material men had sued in personam there would have been no doubt as to their right to proceed, was an error, based on Mr. Pinckney's admission, unsupported by authority. The question in all its aspects having thus been repeatedly before the court, and the very elaborate opinion of Judge Johnson having distinctly called in question the correctness of the decision in The General Smith, in asserting the previous decisions of the Supreme Court in the admiralty jurisdiction in personam, it is appar cases of The General Smith and Peyroux v. Howent that unusual importance must have attached ard, above cited. It neither enlarged nor curto the next case coming before the court involv-tailed the original jurisdiction of the admiralty ing these points. This was Peyroux v. Howard, courts under the Constitution and Judiciary 7 Pet., 324, January Term, 1833. Act. The court, by Mr. Justice Thompson (no member of it dissenting), expressly sustained the doctrine of The General Smith in every particular, and held explicitly: first, that no lien is given or implied by the maritime law in the case of a domestic ship; second, that, if the local law gives the lien, it may be enforced in the admiralty. From 1845 to 1858, the rule as above cited was in force, and there was no departure from the principles laid down in The General Smith, which was regarded as carrying the admiralty jurisdiction to the extreme, and Mr. Justice Daniel says in Ward v. Peck, 18 How., 267 (59 U. S., XV., 383), that "A great portion of the admiralty jurisdiction now permitted in this country, may be traced to a dictum in argument in the case of The General Smith, in the assertion of a doctrine, i. e., the jurisdiction in personam, which, if now for the first time discussed and examined, might not command the sanction of this tribunal. N. B.-In his opinion, Judge Thompson inaccurately says that The Gen. Smith decided that "The jurisdiction of the admiralty in such cases, where the repairs are upon a domestic ship, depends upon the local law of the State." This inadvertent remark was corrected by the court in the next case. See The Orleans v. Phabus, 11 Pet., 184. A master of a vessel had sued in admiralty in the United States District Court of Louisiana, for his wages. The state law gave him a lien, and process in rem had issued out of the United States District Court to enforce it, based on the decision of Peyroux v. Howard (supra). But on appeal, the Su- Liens on vessels incumber commerce, and are preme Court held that the contract not being discouraged, so that when the owner is presmaritime, the district court had no jurisdic-ent, no lien is acquired by the material man, tion. The court says, Judge Story delivering the opinion, that the contract is not maritime, and then proceeds as follows: "But it is said that the law of Louisiana creates a lien in favor of the master of a vessel and, if so, it may, upon the principle recognized by this court in Peyroux v Howard, 7 Pet., 343, be enforced in the admiralty. That decision does not authorize any such conclusion. In that case the contract was created as a maritime contract, and the lien under the state law was enforced in the admiralty on the ground that the court, under such circumstances, had jurisdiction of the contract as maritime, and then the lien, being attached to it, might be enforced according to the mode of administering remedies in the admiralty. The local laws can never confer jurisdiction on the courts of the United States. They can only furnish rules to ascertain the rights of parties, and thus assist in the administration of the proper remedies, where the jurisdiction is vested by the laws of the United States." 11 Pet., 184. Thus the law stood when Congress, by the Act of August 23, 1842, 5 Stat. at L., 499, provided for the adoption by the Supreme Court of Rules of Practice in the Courts of the United States, in causes of admiralty and maritime jurisdiction. The court, in December Term, 1844, promulgated such rules, to take effect September 1, 1845. Rule XII. was as follows: "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 libelant may proceed against the ship and freight in rem, or against the master or 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 material men for supplies, repairs and other necessaries." See, XX., 922. This rule simply embodied the results of the * * * N. J. Steam Nav. Co. v. Merchants' Bank, 6 How., 344, Dec. Term, 1847. "As to repairs and necessaries in the port to which the ship belongs, no lien is implied unless recognized by that law." People's Ferry Co. v. Beers, 20 How., 393 (61 U. S., XV., 961), Dec. Term, 1857. nor is any when the vessel is supplied or repaired in the home port. But not only did this court unanimously reverse the decree in favor of the shipwrights, it also repealed its own Rule XII. at the next Term, and abandoned as an "error" the attempt to enforce a lien in favor of material men in cases where no lien existed by the maritime law, and where the only lien was given by the state law. This was done deliberately, after full consideration of the subject, and despite urgent appeals in the interest of the material men. Light is thrown upon the action of the court in repealing the Rule by the case of Taylor v. Carryl, 20 How., 583 (61 U. S., XV., 1028), also, December Term, 1857. The new and substituted rule was as follows: see Propeller Niagara v. Cordes, 21 How., 11 (62 U. S., XVI., 41): "Rule XII. 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 libelant may proceed against the ship or freight in rem, or against the master or owner alone in personam, and the like proceedings in personam, but not in rem, shall apply in case of domestic ships for supplies, repairs or other necessaries." (See XX., 922.) The court gave its own explanation of this change of the Rule in the case of Maguire v. Card, 21 How., 248 (62 U. S., XVI., 118), Dec. Term, 1858, which was decided immediately after the alteration, and which is reported in the same volume containing the new rule. "We have at this Term amended the 12th Rule of Admiralty, so as to take from the district courts the right of proceeding in rem against a domes tic vessel for supplies and repairs which had been assumed upon the authority of a lien given by state laws, it being conceded that no such lien existed according to the admiralty law; thereby correcting an error which had its origin power of the State to create the lien as "undoubted," irrespective of the question of the mode of its enforcement. See, The Grapeshot, 9 Wall., 141 (76 U. S., XIX., 656); The Lulu, 10 Wall, 192 (77 U. S., XIX., 906: The Kalaroma, 10 Wall., 204 (77 U. S., XIX., 941); The Custer, 10 Wall., 215 (77 U. S., XIX., 944). In this last cited group of cases relating to the maritime lien in favor of material men on foreign vessels, the court takes occasion to reiterate and emphasize the doctrine that, in the case of domestic vessels, no such lien exists. A most important decision followed in Leon v. Galceran, 11 Wall., 185 (78 U. S., XX., 74), Dec. Term, 1870. This was a suit for seamen's wages in the State Court of Louisiana under a statute giving the privilege by writ of sequestration operating as an attachment on mesne In The St. Lawrence, 1 Black, 522 (66 U. S., XVII., 180), Dec. Term, 1861, the precise distinction between the jurisdiction of the admiralty court in respect to the maritime contract and its want of power in respect to the lien, was explained and made clear. In this case the libel-process, and not as a direct proceeding in rem ants had, before the alteration of the 12th Rule, filed their libel in rem in the United States District Court for supplies furnished in New York, the home port, alleging the maritime contract and the lien by the local law. They had a decree. Pending the suit, the 12th Rule was changed, and it was claimed that, the right to process in rem being no longer in existence, the district court had no jurisdiction over the cause. But this court held: First. That the admiralty court had jurisdiction, the contract being maritime. Second. That it had not jurisdiction to issue process in rem, inasmuch as the principles of the civil law, by which a maritime lien is given in the case of a domestic vessel, formed no part of the admiralty and maritime jurisdiction conferred on the Government of the United States. The question at once arose whether, in cases where the contract was maritime, the state courts had any jurisdiction to authorize and enforce a direct proceeding in rem. This question was determined in The Moses Taylor, 4 Wall., 411 (71 U. S., XVIII., 397), December Term, 1866. In The Hine v. Trevor, 4 Wall., 555 (71 U. S., XVIII., 451), Dec. Term., 1866, the court affirmed the doctrine of The Moses Taylor, and held that the grant of original admiralty jurisdiction by the Act of 1789 is exclusive, and that state statutes which attempt to confer upon state courts a remedy for marine contracts or torts, by proceedings strictly in rem, are void. In The Rock Island Bridge, 6 Wall., 213 (73 U. S., XVIII., 753), Dec. Term, 1867, the court held, in accordance with all the previous decisions, that the admiralty, when it has jurisdiction of the cause, may proceed in personam, and when the cause is the subject of a maritime lien, may also proceed in rem; but no proceeding in rem could be allowed in admiralty unless a maritime lien existed, and that the lien and the proceeding in rem are, therefore, correlative; where one exists, the other can be taken, and not otherwise. The Belfast, 7 Wall., 624 (74 U. S., XIX., 266), Dec. Term. 1868, was a case in which a statute of Alabama giving liens on domestic vessels for supplies and for debts contracted by the master, etc., and authorizing proceedings in rem to enforce them, was held unconstitutional and void. Judge Clifford, like Ch. J. Taney, treats the against property alone, and as an offending thing," and under this writ the vessel was seized. This court sustained the proceeding as a common law remedy, saved by the Judiciary Act to the suitor, the sequestration operating not as an enforcement in rem of the maritime lien, but as an attachment to bring the vessel under the dominion of the state court, for the purpose of subjecting it to judgment, and said, per Clifford, J., referring to the previous cases of The Moses Taylor, The Hine, The Trevor and The Belfast: Common law remedies are not competent to enforce a maritime lien by a proceeding in rem and, consequently, the original jurisdiction to enforce such a lien by such a mode of proceeding is exclusively in the district courts, which is precisely what was decided in each of the three cases to which reference is made, and the precise language of the opinion in The Belfast is repeated: "Authority, therefore, does not exist.' Compare 11 Wall., 192 (78 U. S., XX., 76), with 7 Wall., 645 (74 U. S., XIX., 272). In Ex parte McNeil, 13 Wall., 236 (80 U. S., XX., 624), Dec. Term, 1871, a libel in personam, filed by a New York Sandy Hook pilot to recover off-shore pilotage, the rate of which was prescribed by a New York statute, was sustained, and the vessel held to have been properly attached, in the absence of the owners, on the ground that the contract for pilotage was maritime and properly cognizable in the United States District Court, and that the sum fixed by the state law could be recovered. There was no question of maritime lien or process in the case. The decisions of this court averse to the power of the States to enforce maritime contracts by direct proceeding, in rem, were followed in New York by the case of The Josephine, 39 N. Y., 19; Sheppard v. Steele, 43 N. Y., 52; Brookman v. Hamill, 43 N. Y., 554. In this state of the decisions, the material men having no longer the privilege of direct proceedings in rem, either by the municipal or maritime law, this court, at December Term, 1872, again amended Rule XII., to read as follows: "Rule XII. In all suits by material men for supplies or repairs, or other necessaries, the libelant may proceed against the ship and freight in rem, or against the master or owner alone, in personam." |