Page:Federal Reporter, 1st Series, Volume 8.djvu/349

THE FRANK G. FOWLEB. S85 �Thus, in the caseof The Bold Buccleugh, 7 Mo. P.C. 284,— a case twice argued, — the court says : �"A maritime lien does aot include or require possession. The word is used in maritime law not in the strict legal sense in which we understand it in courts of common law, in which case there could be no lien where there was no possession, actual or constrnctive, but to express as if by analogy the na- ture of claims, which neither presuppose nor originate in possession. This was well understood in the civil law, by which there might be apledge with possession and a hypothecalion without possession, and by which in either case the right travelled with the thing into whosesoeyer possession it came. Having its origin in this rule of the civil law, a maritime lien is well deflned by Lord ienterden to mean a claim or privilege upon a thing to be carried into efEect by legal process; and Mr. Justice Story (1 Sumn. 78) explains that process to be a proceeding in rem, and adds that, wherever a lien or claim is given upon a thing, then the admiralty enforces it by a proceeding in rem, and indeed is the only court competent to enforce it. A maritime lien is the foundation of the proceeding in rem — a process to make perfect a right iiicho- ate from the moment the lien attaches ; and whilst it must be admitted tnat where such a lien exlsts a proceeding in rem may be had, it will be found to beequally true that in all cases where a proceeding in remis the proper, course, there a maritime lien exists, which gives a privilege or claim upon the thing t» be carried into efEect by legal process. This claim or privilege travels with the thing into whosesoever possession it may corne. It is inchoate from the moment the claim or privilege attaches, and wheh carried into efifect by legal process, by a proceeding in rem, relates back to the period when it first at- tached." �This definition of a maritime lien was commented on and apptoved in The Feronia, L. E. 2 Ad. & Ec, 72. Itis also approved to its full extent by the supreme court in The Rock Island Bridge, 6 'Wall. 216. In Ins. Co. V. Sherwood, 14 How. 363, Mr. Justice Curtis, speaking in a case of collision, says : "The loss was the existence of a lien on the vessel insured, securing a valid claim for damages, and the con- sequent diminution of the value of that vessel." ■ In the case of Thh Triumph no efficacy is given to the lien beyond the right of attaoh- ment on mesne process for the security of a debt of the owner. The cases he cites are some of them cases of attachment on mesne process, and he makes the maritime lien analogous to the- right of the creditor to make such an attachment, which, indeed, takes efEect Only upon the levy of process on the property. A similar suggestion, made or sup- posed to have been made by Dr. Lushington, in The Johann Friederich, (1 Wm. Rob. 37,) is commented on by the court, and disapproved in The Bold Buccleugh, ut supra, 282. And the distinction between an attachment on mesne process which creates a lieii only uj^on the ��� �