Opinion of the Court.

levy of another writ in another suit. In this case the lien was not created by the levy, but the levy was to enforce a lien created by law, and existed independent of a levy.

An abortive attempt to foreclose a mortgage by suit, when the cause was not tried on its merits, but dismissed on the plaintiff's motion, would destroy no lien created by the mortgage.

Another point made by appellant is, that it does not appear from the papers and proceedings in the cause that the Superior Court had jurisdiction.

This point was not raised in the court below in any form, and is now raised here for the first time, and it is based on the ground that the affidavit does not show the supplies were furnished at the home port of the vessel, and that she was a domestic vessel. Tug Montauk v. Walker, 47 Ill: 335.

Had this point been made in the court below the plaintiffs then might have taken leave to amend. Frink et al. v. King, Adm'r, 3 Scam. 144. It is now too late to make the objection.

The general question of the jurisdiction of a State court as conferred by the acts of 1845 and 1857, are considered at some length in Williamson v. Hogan, 46 Ill. 504, and the Tug Montauk v. Walker, supra, and Schooner Norway v. Jensen, 52 id. 373, with reference to the decision of the Supreme Court of the United States in The Hine v. Trevor, 4 Wal., and other cases decided in the same court.

In "The Hine" case the court say, "We are sensible of the extent of the interests to be affected by our decision, and the importance of the principles upon which that decision must rest, and have held the case under advisement for some time, in order that every consideration which could properly influence the result might be deliberately weighed."-P. 561. It was then distinctly announced that the jurisdiction of the District Courts of the United States, on the lakes and navigable waters connecting the same, was governed by the act of 1845, and that the jurisdiction is not exclusive, but expressly made concurrent with such remedies as may be given by State laws.-Pp. 566–569.

15-62D ILL.

Opinion of the Court.

The Hine v. Trevor was an action for a collision of steamboats running on the Mississippi River. It was decided to be a maritime tort, and cognizable exclusively in the admiralty, by force of the judiciary act of 1789, and properly, as that river was navigable from the sea by vessels of ten or more tons burden.

At the same term the case of "the Moses Taylor" was decided. id. 411. That action was on a contract to transport a passenger by sea from New York to California, clearly a maritime contract, wholly to be performed on the sea, and of which a court of admiralty had exclusive jurisdiction, under the act of 1789. The act of 1845 had no place in the discussion, it was not alluded to by counsel or court, nor could it have been, the only question being, was the remedy given by the act of the legislature of California within the saving of the act of 1789? These cases were decided in 1866.

The next, in order of time, was the case of "The Belfast," 7 Wallace, 624, decided in 1868.

It arose in the State of Alabama on a contract of affreightment of cotton between ports in that State, and was prosecuted under an act of the legislature of that State, entitled, "proceedings in admiralty," by which a lien was created on the vessel, and proceedings to enforce it were allowed; in which, if there was more than one complaint, all were to be consolidated, and the court was required to render but one judgment against the vessel, and that, condemning ex parte the boat, tackle, etc., to be sold in satisfaction of the claims, and the affidavit of complainant was made presumptive evidence of the justice of the demand; and by a proviso to the act it was enacted, "unless when otherwise provided in this chapter, the proceedings to enforce the lien shall be the same as in the courts of admiralty of the United States; but either party may have any question of fact decided by a jury, upon an issue made up under the direction of the court."

There was created by this statute a court of admiralty in the State of Alabama, whose proceedings were, as in such court, strictly in rem, and the law was held to be of no effect,

Opinion of the Court.

as it trench'd upon the exclusive jurisdiction of the Federal courts in such cases.

The ground assumed by the libellants was, that the State court had jurisdiction under that clause of the judiciary act of 1789 (section 9), which saves "to suitors in all cases the right of a common law remedy when the common law is competent to give it."

The theory of the defendants was that the libels were libels in rem, to enforce a maritime lien in favor of the shippers of the cotton under the contracts of affreightment for its transportation from one port to another, upon navigable waters, and that the State courts had no jurisdiction to employ such a process to enforce such a lien in any case; that the jurisdiction to enforce a maritime lien by a proceeding in rem, was exclusively vested in the Federal courts, by the Constitution of the United States, and the laws of Congress.

The court in the discussion of these questions make but, a bare allusion to the act of 1845, and in terms of approval as we understand them. They say, "Remarks, it is conceded, are found in the opinion of the court, in the case of Allen et al. v. Newberry, 21 Howard, 245, inconsistent with these views; but they were not necessary to that decision, as the contract in that case was for the transportation of goods on one of the western lakes where the jurisdiction in admiralty is restricted, by an act of Congress, to steamboats and other vessels employed in the business of commerce and navigation between ports and places in different States and Territories "—referring to The Hine v. Trevor, supra.

The court further say, "No such restrictions are contained in the ninth section of the judiciary act, and consequently those remarks, as applied to a case falling within that provision, must be regarded as incorrect."

A further allusion is made to the act of 1845, in commenting upon the decision in "The Magnolia," 20 Howard, 296, in which the court held that the district courts exercise jurisdiction over fresh water rivers, "navigable from the sea" by virtue of the ninth section of the judiciary act, and not as con

Opinion of the Court.

ferred by the act of the 20th of February, 1845, which is applicable only to "the lakes and navigable waters connecting said lakes."

The libellants contended that the saving clause in the judiciary act gave a remedy in the State courts-that they had, by that act, concurrent jurisdiction, but the court say, nothing is said in that act about a concurrent jurisdiction in a State court or in any other court, and it is quite clear that in all cases where the parties are citizens of different States, the injured party may pursue the common law remedy here described and saved, in the circuit court of the district as well as in the State courts.

They say, "Original cognizance is exclusive in the district. courts, except that the suitor may, if he sees fit, elect to pursue a common law remedy in the State courts or in the circuit court, as before explained, in all cases where such a remedy is applicable. Common law remedies are not applicable to enforce a maritime lien by a proceeding in rem," etc.; and further, "State legislatures have no authority to create 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."

This was all well said, doubtless, as applicable to the Alabama State law where the proceedings were designed to be in rem as practiced in the admiralty courts.

But in concluding the opinion the court say, "Such a lien (a maritime lien) does not arise in a contract for materials and supplies furnished to a vessel in her home port, and in respect to such contracts, it is competent for the States, under 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," referring to "The General Smith," 4 Wheaton 438, and is the ground assumed by this court in Williamson v. Hogan, 46 Ill. 504.

It will be noticed, nothing is said in "The Belfast," about the saving clause of the act of 1845, though, regarding in

Opinion of the Court.

the most unqualified terms, the operation of that act on our lakes and rivers.

At the same term of the court came on the case of the steam tug "Eagle," 8 Wal. 15.

This was an appeal from the district court for the eastern district of Michigan, in which the question made on this record, was not before the court in any shape. It was there held that this act of 1845 was obsolete and inoperative. Since the decision in "The Genessee Chief," 12 How. 243, in which it was held that the jurisdiction of the district courts in such cases extended over all the navigable waters of the United States, without regard to the ebbing and flowing of the tide.

In the opinion delivered in that case by Chief Justice Taney, it is nowhere intimated that the act of 1845 was not, what it purported to be, an act to extend the jurisdiction of those courts, and valid, and binding, and operative. That case arose under that act, and was prosecuted under it.

The effect of the decision was to overrule the many prior decisions of that court upon the question of the limit of the jurisdiction of the district courts. The chief justice said, in that very case, that the act of 1845 was a limitation of the powers previously conferred on the Federal courts.

The opinion in the case of "The Eagle," supra, declares the act is obsolete and of no effect, with the exception of the clause which gives to either party the right of trial by jury when requested, which, the court say, is rather a mode of exercising jurisdiction than any substantial part of it. The saving clause in this act as to the concurrent remedy at common law, is, in effect, the same as in the act of 1789, and is, therefore, of necessity, useless and of no effect.

It will be seen, the question raised in the case before us, was not a question in "The Eagle," and whatever may have been said touching it was obiter.

We had thought there might be a necessity for the act of February 3, 1845, inasmuch as by the judiciary act of 1789, admiralty jurisdiction extended only to such waters as were