Vol. I.]

MURPHY V. THE COMMONWEALTH.

[No. 11.

passage from that author's work on evidence (part IV. p. 709), he further says: "Now the case from Strange did not violate this rule; the wife disclosed no communication; but being present when the goods were bought, she was called to prove on whose credit the sale was made. But is not our case very different? I think so. The husband was at the time holding in slavery the mother and her children; if she was an Indian woman they were all entitled to their freedom. Can we possibly suppose that he meant to make such a declaration public? It is stated that the party offered to prove that these declarations were made repeatedly in the presence of the family, and they were not requested to keep them secret. This could only, I presume, be proved by the wife; and I question the propriety of permitting her thus to qualify herself to disclose such communications. But suppose it proved that the declarations were so made, and no secrecy enjoined; would it follow that the husband wished or expected they should be divulged? Are we to say that every word spoken in the thoughtless, careless confidence of the domestic circle is free for public disclosure, unless secrecy be expressly enjoined? Is not the converse of the proposition true? And would it not have a most mischievous effect, would it not seriously break in upon that confidence which is the charm of domestic life, if men should, from our decisions, have cause to fear that after they were in their graves, their reputation might be injured and their children ruined, by the declarations they had made in the bosoms of their families? This freedom from restraint or apprehension, in the intercourse of one's own fireside, seems to me so necessary to the quiet and repose of society, that I am fearful of trenching upon it in the slightest degree."

According to the authorities referred to, we think there can be no doubt of the inadmissibility, as evidence in this case, of the statement said by the witness, Nancy Murphy, to have been made to her by her husband, at his own house. That the husband and wife lived apart when the statement was made does not take the case out of the operation of the principle. The parties were not legally separated. They still were man and wife, entitled to all their legal rights as such, however unworthily the husband may have acted. The rest of the evidence set out in the second bill of exceptions is inadmissible, as we have clearly seen, upon other grounds.

Thirdly. We are of opinion that the said county court did not err in overruling the motion of the prisoner to set aside the verdict and grant him a new trial, as mentioned in his third and last bill of exceptions; and that all the reasons assigned in said bill for granting such new trial are insufficient for that purpose. They are five in number. The 1st, "Because he was arraigned and plead without the aid of counsel, having none present when he plead not guilty to the indictment," is not well founded. A man may plead for himself. The prisoner said he had counsel, though they happened to be absent. He plead voluntarily, and had the cause continued; and his counsel were present and defended him at his trial. The 2d and 3d have already been disposed of, being the subjects of the first and second bills of exception. The 4th is, "Because the court erred in giving to the jury the instructions asked for by the commonwealth. These instructions were not excepted to when they were given, nor until after the verdict; and it is at least doubtful, whether they can be regarded

Vol. I.]

THE CHAMPION.

[No. 11.

as a part of the record. They are not copied in the third bill of exceptions, nor are they therein referred to, except by being mentioned as aforesaid, in the third of the reasons assigned for a new trial. They are copied by the clerk at the end of the record. Without deciding whether they can properly be considered as a part of the record, but assuming them to be so, for the purposes of this case, we are of opinion that the court did not err in giving them. After giving two instructions on the motion of the prisoner, the court gave the following on the motion of the commonwealth:

"The court also instructs the jury, that the law is, that a man is taken to intend that which he does, or which is the natural and necessary consequence of his own act: and therefore, that if they believe from the evidence that Alexander Murphy wounded his father, John Murphy, by the deliberate use of an instrument likely to produce death, under the circumstances, then the presumption of the law, arising in the absence of proof to the contrary, is, that he intended the consequences that resulted from said use of said deadly instrument.

"The court further instructs the jury, that the law is, that malice may be implied from the deliberate use of a deadly weapon in the absence of proof to the contrary." These two instructions correctly expound the law, and were appropriate, and not mere abstractions. The 5th and last of the reasons assigned are, that "the judgment should be arrested, because there is no felony charged in the second count of the indictment, which may be the one under which the jury found him guilty." They found him guilty under both; and if either be sufficient, it is enough. Whether a felony be charged in the second count or not, is a question which we need not decide, as the first is certainly a good count, and is conceded to be so by the plaintiff in error. No motion was made to set aside the verdict upon the ground that it was contrary to law and evidence; and certainly it was contrary to neither.

We are of opinion that there is no error in the judgment, and that it ought to be affirmed. Judgment affirmed.

DISTRICT COURT OF THE UNITED STATES. - EASTERN DISTRICT OF MICHIGAN.

[AUGUST, 1874.]

ADMIRALTY. - MARITIME LIEN FOR NECESSARIES SUPPLIED TO FOR ASSIGNMENT OF SUCH LIEN.

EIGN SHIP.

THE CHAMPION.

Maritime liens for necessaries supplied in England to a foreign ship have always existed there.

The assignment of a claim under a maritime lien divests the lien.

THIS is a libel in rem by James O'Leary, for wood supplied to the tug by the libellant at Lampton, on Saint Clair River, in the Province of

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THE CHAMPION.

[No. 11.

Ontario, in October and November, 1871. The tug was a vessel of the United States, and owned and registered at Detroit, in this district.

The libellant was a citizen of Ontario, and a subject of Great Britain. Before the suit was brought, O'Leary had assigned his claim to Johnson & Co., brokers and bankers, of Port Huron, in this district, and the suit was brought at their instance and for their benefit.

The claim was evidenced by drafts drawn by the master of the tug upon the owner. After the suit had been commenced, and before the hearing, Johnson & Co. withdrew the drafts from the hands of their proctors, and without further consultation or coöperation with them, made a settlement with and received payment from the owner of the tug, but not including costs, and without any reservation as to costs, and delivered up the drafts; and the proctors' costs have not been paid. Libellants' proctors now ask for a decree for their costs.

This is opposed on behalf of the owner of the tug, on three grounds: First. That by the laws of the Province of Ontario, where the supplies were furnished, there was no maritime lien for the same; and that therefore libellant had no right of action in rem, and the court was without jurisdiction in the premises.

Second. That any lien which may have existed in favor of libellant ceased on the assignment of his claim to Johnson & Co.

Third. That in any event, the proctors having voluntarily delivered up to Johnson & Co. the evidences of claim, and thus enabled them to make a full and complete settlement with the owner, the proctors cannot now, without proof of collusion, look to the tug or her owner for their costs, but must look to Johnson & Co. alone.

Upon the question of lien, it is conceded that if a maritime lien for supplies had an existence in Ontario in any case, it had in this.

There are several other suits against the tug in behalf of Canadian parties, for supplies, and depending substantially upon the same questions as the present case, and the decision in this case is to determine the others. Mr. L. S. Trowbridge, for libellant.

Mr. F. H. Canfield, contra.

LONGYEAR, J. The argument of respondent's advocate in support of the first ground of defence that there was no lien by the lex loci contractus, and therefore no right of action in rem in this court - is based upon the following propositions:

-

First. That the laws of France, which prevailed in Canada at the time of its conquest by England, and by which there was a lien for necessaries supplied to a ship, had been superseded by the laws of England.

Second. That a lien for necessaries supplied to a ship, whether domestic or foreign, never had an existence in England until it was created by act of parliament.

Third. That the act of 3 & 4 Victoria, chap. 65, sec. 6 (in 1840), creating a lien in such cases, had no operation in Upper Canada, now the Province of Ontario, because not so expressly named and provided.

Fourth. That such was the state of the law in the Province of Ontario in October and November, 1871, when the cause of action in this

case arose.

The arguments were confined to these propositions, and were con

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THE CHAMPION.

[No. 11.

ducted on both sides with commendable zeal and ability, and elaborate research. I have also received much aid from an instructive brief of Messrs. H. H. Swan and J. W. Finney, proctors and advocates for libellants in another suit now under advisement and in which this same question is involved.

It will be seen that the second proposition lies at the foundation of the entire argument; because it is only by maintaining it, that the others are of any consequence. The second proposition will therefore be first considered. In considering this proposition, it must be borne in mind that the Champion was a vessel of the United States and therefore foreign to the place where the necessaries were supplied.

It is too well settled and understood to need citation of authorities, or admit of discussion, that, as to domestic vessels, jurisdiction to enforce the lien accorded by the maritime law to material-men, by action in rem in the admiralty or elsewhere, was long since overthrown and denied in England, and the lien itself held never to have had any existence there. Such has hitherto always been the rule in the United States also, where the maritime law was at first adopted as it was administered in England, together with all its inconsistencies and incongruities as applied to the condition of things here. The incongruity of limiting the jurisdiction to tide water has already been abandoned, and has ceased to mar the harmony of the system; and judging from the recent amendment of Admiralty Rule 12 by the supreme court, and certain foreshadowings by recent enunciations from the bench of that court, and to which may be added a recent decision by the district court for the Eastern District of Missouri, it is evident that this other is about to meet the same fate. Wilson v. Bell, 6 Chicago Leg. News, 261; The Commonwealth, 20 Internal Revenue Record, 64; S. C. 6 Chicago Leg. News, 234.

But it is by no means so well settled, although seemingly so understood, that the denial of jurisdiction in the admiralty to enforce liens of material-men, extended to necessaries supplied in England to foreign vessels, and much less so in regard to the existence of the lien in such cases. It is true, it seems to be assumed by Mr. Abbott in his excellent work on shipping (pages 142 to 150), and it was no doubt held by the court of king's bench, that the denial went to that extent, both as to the jurisdiction and the existence of the lien. To my mind, however, it is apparent from the notes to those pages of Abbott, and the cases there cited and commented on in both text and notes, that the controversy in this respect between the admiralty and common law courts of England never was entirely settled and determined, the one way or the other; that, in fact, that controversy continued as to foreign vessels until it was finally disposed of and determined in favor of the admiralty, by the stat ute of 3 & 4 Vict. supra. The high court of admiralty did not understand the denial to have gone to the extent claimed, certainly as late as 1834. In that year, in the case of The Neptune, 3 Hagg. 129, 140; 8 Eng. Adm., Sir John Nicholl, delivering the opinion of the court, says: "In England, then, the law of nations, of which the lex mercatoria is a branch, forms part of the common law, unless it be altered or controlled by parliament or the municipal courts. It is clear that by the civil law, and by the general law of other nations, when uncontrolled, persons who

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THE CHAMPION.

[No. 11.

have furnished materials for the fitting out of a ship have a lien upon the ship itself, and if so, upon the proceeds of the ship. If an English ship were repaired in France or in Holland, material-men might there arrest and enforce payment against the ship itself. How far a foreign ship repaired here might not be subject to the same right is a question into which it is not necessary now to inquire, for the Neptune is a British ship, and in such case the municipal courts of this country have so far departed from the rule of the civil law that they have held that the lien does not extend to the ship itself; and so far, therefore, this court is restrained; but they have not gone further." It is true, the Neptune, being a domestic ship, and the repairs having been done in England, and the application in that case being to participate in surplus proceeds, and not a proceeding against the ship itself, the point thus discussed was not directly involved; but what was said none the less shows that, in the opinion of Sir John Nicholl at least, the question of lien for necessaries supplied to a foreign vessel in England had not then passed beyond controversy in her courts.

The judgment in that case was afterwards reversed by the privy council, 2 Knapp's Cases, 94, on the ground that it allowed a party to participate in proceeds who had no lien upon the vessel itself; and it became a leading case and was deemed a final determination of the question of lien for necessaries supplied in England, so far as it related to domestic ships.

The statute of 3 & 4 Vict., supra, must be regarded, I think, as declaratory, or at least as a recognition, merely, of what the maritime law then was, so far as concerned the question of lien for necessaries supplied to a foreign ship, whether within the body of a country or upon the high seas, and not as introducing a new principle into English jurisprudence. This, I think, is abundantly evident from the language of the enactment itself, which is as follows: "The high court of admiralty shall have jurisdiction to decide all claims and demands whatsoever in the nature of salvage services rendered to or damage received by any ship or sea-going vessel, or in the nature of towage, or for necessaries supplied to any foreign ship or sea-going vessel, and to enforce payment thereof, whether such ship or vessel may have been within the body of the country or upon the high seas, at the time when the services were rendered, or damage received, or necessaries furnished, in respect of which such claim is made." Abb. on Ship. 150. It will be noticed that the act does not purport to create a lien. It leaves that question just where it stood before, and, of course, to be determined by the maritime law. It seems to assume the existence of the lien, and then simply restores to the admiralty a jurisdiction in relation to it, of which it had been deprived by the municipal courts. That this is the light in which that act was regarded by the high court of admiralty, is evident by the subsequent decision of that court in at least two cases. One, The Alexander, 1 W. Rob. 288, soon after the act went into operation, holding that the jurisdiction conferred by the act was not confined to cases of necessaries supplied after it went into operation; and the other, The Wataga, Swab. 165, at a later period (1856), holding that the jurisdiction conferred by the act extended to claims for necessaries supplied to a foreign vessel in colonial as well as in British ports.