Edwards v. Elliott,
88 U.S. 532 (1874)

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U.S. Supreme Court

Edwards v. Elliott, 88 U.S. 21 Wall. 532 532 (1874)

Edwards v. Elliott

88 U.S. (21 Wall.) 532


1. Where the record before the court on a case from a state court shows a declaration, pleas to it, issue on them, verdict on those issues, and judgment on the verdict, without allusion to any demurrer, the court will not refer to opinions in books of printed reports of the state court to contradict the record and to show that there was a demurrer to the declaration and that judgment overruling the demurrer was given. [It was stated in this case by counsel that the demurrer after judgment against it had been withdrawn.]

2. Where a record brought regularly to this Court on a writ of error and appeal bond which operate as a supersedeas shows a judgment quite intelligible and possible, and where a return to a certiorari issued, without prejudice, long after the transcript was filed here and not long before the case was heard, showed that that judgment had been set aside as improvidently entered and that one with alterations of a very material character had been substituted for it, this Court held "under the circumstances" that the first judgment was the one which it was called on to reexamine.

3. An assignment of error in the highest court of a state to the decision of an inferior state court that the latter had decided a particular state statute "valid and constitutional," and a judgment entry by the latter court that the statute was not "in any respect repugnant to the Constitution of the United States," is not specific enough to give jurisdiction to the Supreme Court of the United Staten under section 709 of the Revised Statutes, there being nothing else anywhere in the record to show to which provision of the Constitution of the United States the statute was alleged to be repugnant.

4. However, where the record showed that the case was one of the assertion of a lien under a state statute for building a vessel at a town on what the Court might perhaps judicially notice was an estuary of the sea, and where the entry of judgment showed also that the court had adjudged

"that the contract for building the vessel in question was not a maritime contract, and that the remedy given by the lien law of the state did not conflict with the Constitution or laws of the United States,"

the Court held that the latter statement, in view of the whole record, was sufficient to give this Court jurisdiction.

5. A maritime lien does not arise on a contract to furnish materials for the purpose of building a ship, and in respect to such contracts, it is competent for the states 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 if not inconsistent with the exclusive jurisdiction of the admiralty courts.

6. The provision of the Seventh Amendment to the Constitution which secures

Page 88 U. S. 533

to every party the right to trial by jury where the amount in controversy exceeds $20 does not apply to trials in state courts.

7. Matters not presented to nor decided by the court below are not assignable for error here.

The Constitution ordains that:

"The judicial power [of the United States] shall extend to all cases of admiralty and maritime jurisdiction."

And the Judiciary Act enacts:

"SECTION 9. That the district courts [of the United States] shall have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction . . . saving to suitors in all cases the right of a common law remedy where the common law is competent to give it."

These provisions of organic and federal statutory law being in force, an act of the Legislature of New Jersey "for the collection of demands against ships, steamboats, and other vessels," [Footnote 1] approved March 20, 1857, enacted that whenever a debt shall be contracted by the master, owner, agent, or consignee of any ship or vessel within the state on account of any work done or materials furnished in this state for or towards the building, repairing, furnishing, or equipping such ship or vessel, such debt shall be and continue a lien on the vessel for nine months, and that any person having such claim over $20 may apply to the proper officer for a warrant to enforce his lien; that the officer receiving the warrant may seize the vessel and give the prescribed notice; that any other person having such lien may make proper demand and proof and be admitted as an attaching creditor; that the owner or any party may at any time before sale apply for her discharge upon giving bond to pay such claims as shall be established to have been subsisting liens under the act; that upon such bond's being given, the vessel shall be discharged, and the creditors may sue

Page 88 U. S. 534

upon the bond alleging their claims and averring them to be subsisting liens; and that if no such bond is given, proceedings may be taken as provided in the act for the sale of the vessel, or such part of her tackle &c., as shall be sufficient to pay the claims.

This statute of New Jersey being on its statute book, an article of agreement was made November 3, 1866, between Henry Jeroleman of the first part, and a certain Hasbrook, and several others of the second, for building a schooner of specified dimensions for the consideration of $54 per ton, the builder to furnish all labor and materials and deliver the vessel. The whole price, at the said rate per ton, was to be about $21,000, and the payments were to be made by Hasbrook and the others at stated times during the progress of the work, as $2,500 when the keel was laid, $3,000 when the frame was up, $3,500 when ceiled, and decks laid; $3500 when outside planks were on and squared off; $3,500 when the poop deck was on, $2,000 when ready for launching, and the balance when delivered according to contract. And it was agreed that as the said several installments were paid, the schooner, so far as then constructed, and the materials therein inserted, should be and become the property of Hasbrook and the others.

The schooner was built at East Newark, New Jersey. Two persons, one named Elliott and the other Ripley, furnished timber for the vessel, and on the 19th of June, 1867, alleging that they had not been paid for their timber, they caused her to be seized by the sheriff under the already quoted statute of New Jersey, the vessel, at the time of this seizure, being unfinished, on the stocks, and neither named, enrolled, licensed, or provided with a crew or master. Elliott had furnished his timber in November, 1866, and Ripley his between January 15 and May 10, 1867.

On the 24th of June, 1867 -- and therefore after Elliott and Ripley had furnished the timber to Jeroleman -- Jeroleman assigned the contract giving him the right to build the vessel to one Edwards, by whom the vessel was finished.

On the 2d of July, 1867, Edwards, the new owner, gave

Page 88 U. S. 535

bond to Elliott and Ripley, in the manner prescribed by the New Jersey statute when a liberation of a vessel from seizure is desired, and the vessel was discharged from the seizure.

Jeroleman had been paid more than the original contract price, but the time when any payments had been made to him did not appear, nor any fact upon which an appropriation of payment could be founded.

The vessel being discharged from the seizures, Elliott and Ripley brought suit in the Supreme Court of New Jersey against Edwards on the bond, the declaration alleging that the debt was contracted in building the vessel, and that the lien was put upon her while she was yet on the stocks unfinished. The action was debt, and the declaration was in the usual form.

As was stated by counsel in this Court and as is also stated in reports of the case in the Supreme Court of New Jersey, [Footnote 2] the defendants demurred to the declaration and insisted that the statute of the state, by attempting to create a lien on ships, under state law, assumed a control of a subject in its nature maritime, and one, therefore, over which under the already quoted clauses of the federal Constitution and of the statutes of the United States, the federal courts alone had cognizance, and therefore that the state statute was void. The New Jersey Reports further state that the demurrer was overruled, the court in its judgment overruling it admitting that if the lien sought to be enforced, had been for materials used in repairing a vessel which had been finished, launched, and enrolled, it could not have been enforced, and that so far as the statute was designed to aid in the enforcement of a maritime contract for which the admiralty might proceed in rem, it was void under the objection stated, but holding that the lien set up having been for materials used in building a vessel -- a matter done on land, entirely under state control, and payment for which might be enforced by a common law remedy or by

Page 88 U. S. 536

any new remedy which the legislature might provide -- the statute was pro tanto valid.

The counsel in this Court stated that after this opinion, the demurrer was withdrawn.

However, in the transcript of the record sent here, nothing whatever about any demurrer appeared. All that appeared was that to the declaration abovementioned several special pleas were filed, among them these:

"1. Nil debet generally."

"2. Nil debet as to Elliott."

"3. Nil debet as to Ripley."

"4. Claim of Elliott not a subsisting lien."

"5. Claim of Ripley not a subsisting lien."

"6. That Jeroleman, who built the vessel, was not owner or agent."

"7. That the debts were not contracted by any owner, agent, or consignee."

And that on issues to these pleas the case was tried.

The facts of the case, as already given, were found by a special verdict.

One question in the case obviously was the question, much agitated in England and here -- namely whether in the case of an executory contract to build a vessel to be paid for by installments as the work progresses, the title remains in the builder until the work is completed and delivered, or whether the title passes to the person for whom the vessel is to be built; in other words, whether in such a case the contract is one for work and materials or one for sale.

A second question also obviously was (admitting that, as a general principle, the contract is in such a case one leaving the title in the builder until the work is completed and delivered) what was the effect of the final clause of the particular contract under consideration, the part on page 88 U. S. 534, italicized, in changing this general rule? If it did change what was assumed to be the general rule, then, if the payments were made before the materials were furnished, the title was divested out of Jeroleman, since he, then, though builder, could not be "owner" of the vessel when the materials

Page 88 U. S. 537

were furnished, and, therefore, was not competent to charge it with liens; and consequently the defendants were not liable on their bond, which took the vessel's place.

The Supreme Court was of the opinion that the builder was, on general principles, to be regarded as owner; that the final clause divested his title, on the payments of the money; that the burden lay upon the claimants of the vessel -- who were the obligors in the bond -- to show the time of these payments or some fact upon which an appropriation of payment could be founded, and as they had not shown either, that therefore, in law, the builder (Jeroleman) was to be regarded as the owner when the materials were delivered, and accordingly that debts contracted by him did become liens.

Judgment accordingly went for the plaintiffs, and the case was taken by the defendants from the Supreme Court of New Jersey to what in that state is a still higher court, the Court of Errors and Appeals.

The errors there assigned were:

"1. That the Supreme Court held the Act of March 20, 1857, valid and constitutional."

"2. That the said court decided that Jeroleman, the builder of said vessel, was the owner thereof and competent to charge it with liens."

"3. That the said court adjudged that the respective claims of the plaintiffs were subsisting liens, under the laws of the State of New Jersey, on the vessel, at the time of exhibiting the same."

On the 20th of August, 1872, the Court of Errors and Appeals affirmed the judgment of the Supreme Court. The entry of affirmance, or "rule to affirm," as in the transcript it was called, as the same came here in the transcript, was dated August 20, 1872, and was thus:

"This case coming on to be heard in the Court of Errors and Appeals, and the said court being of opinion:"

"That the Act of the legislature of the State of New Jersey entitled: 'An act for the collection of demands against ships,

Page 88 U. S. 538

steamboats, and other vessels,' approved March 20, 1857, is not in any respect repugnant to the Constitution or laws of the United States, as contended for by the plaintiffs in error, but is in every respect valid and constitutional, and,"

"That Henry Jeroleman, the builder of the said vessel, was the owner thereof and competent to charge it with liens, and,"

"That the respective claims of the defendants in error were subsisting liens under the laws of the State of New Jersey on the said vessel, and"

"That the contract for building said vessel is not a maritime contract, and the statutory remedy thereon, to-wit, the aforementioned act, does not conflict with the Constitution or laws of the United States, and,"

"That the said act does not violate the right of trial by jury, nor conflict with the Constitution of the State of New Jersey in that behalf, and that there is no error in the proceedings of the Supreme Court herein, and their judgment in the same,"

"It is thereupon, on this 20th day of August, A.D. 1872, adjudged by the Court here that the said act of the Legislature of the State of New Jersey is not in any respect repugnant to the Constitution or laws of the United States, and that the judgment of the Supreme Court be in all things affirmed."

A writ of error was immediately taken to this Court, and within ten days an appeal bond with good, sufficient security given that the plaintiff in error should prosecute his writ to effect and answer all damages and costs if he failed to make his plea good. Due service was also made within ten days of the writ in the mode prescribed by the Judiciary Act in order to make the writ a supersedeas. The transcript was filed here, December 6, 1872.

The case was brought here under the assumption that it came within section seven hundred and nine of the Revised Statutes. [Footnote 3]

The record being in this Court with the entry of judgment or "rule to affirm," as just given, a suggestion was made here by counsel, May 25, 1874, that the above-quoted "rule to affirm" had been vacated and set aside by the

Page 88 U. S. 539

Court of Errors and Appeals, and an amended "rule" substituted therefor since the filing of said transcript, and a certiorari was issued, without prejudice, on the 25th of May, 1874, to bring up any rule entered by the Court of Errors and Appeals in the suit subsequent to the entering of the "rule to affirm," by which the said rule to affirm had been corrected or vacated, and to bring up also any rule which has been substituted for the said rule to affirm.

A return to the certiorari filed in this Court August 6, 1874, showed that it appearing to that Court that the "rule to affirm" had been erroneously entered by the attorney of the plaintiffs in error, and did not correctly express the judgment of this Court as set forth in the opinion of the court delivered in the cause, it was ordered, on the 1st day of April, 1874, that the said rule to affirm be annulled and stricken from the minutes, and that a rule to affirm the said judgment of the Supreme Court be entered in conformity with the decision of the court on the questions before it.

The following new rule to affirm was accordingly entered nunc pro tunc on the record and sent here as part of the return to the certiorari:

"This cause coming on to be heard &c., and the court being of opinion that Henry Jeroleman, the builder of the vessel in the declaration of the plaintiffs below mentioned, was the owner of the said vessel at the time when the materials were furnished by said plaintiffs within the meaning of the Act of the Legislature of New Jersey entitled, 'An act for the collection of demands against ships, steamboats, and other vessels,' and as such owners were competent to charge it with liens for such materials, and that the respective claims of the defendants in error were subsisting liens upon said vessel under the said act, and that the said act does not conflict with the Constitution of the State of New Jersey by violating the right of trial by jury. It is thereupon, on this 20th day of August, 1872, ordered, adjudged, and determined by the court here that the judgment of the Supreme Court be affirmed and that the defendants in error do recover their costs in this Court to be taxed."

The case came on for argument, November 24, 1874.

Page 88 U. S. 549

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