Page:Federal Reporter, 1st Series, Volume 2.djvu/378

 BEOEOK V. BAEGB JOHN M. WELOH. 371 �of the vessel, shall be liable to pay double the rates estab- iished by tbis act. " �The supreme court denied the petition for the writ of pro- hibition. Ex parte Easion, 5 Otto, 68. The opinion of the court was delivered by Mr. Justice Clifford. It holds that the admiralty jurisdiction extends to wharfage, as an essentially maritime contract, claim or service; that where a wharf is used without an agreement as to the measure of compensa- tion, there is an implied contract, under which the proprietor is entitled to recover what is just and reasonable for the use of bis property ; that the nature of the service and the char- acter of the contract are not changed by the circumstance that the water craft which derives the benefit is, as in this case, without sails or masts, or other motive power of her own ; and "that the contract for wliarf age is a maritime con- tract, for which, if the vessel or water craft is a foreign one, or belongs to the port of a state other than that where the wharf is situated, a maritime lien arises against the ship or vessel in favor of the proprietor of the wharf." The opinion further states that the question whether the district court bas or bas not transcended its jurisdiction, in ôntertaining the suit in question, must depend not on facts stated dehors the record, but on those stated in the record on which the district court is called to act, and by which alone it can regulate its judgment ; and that mere matters of defence, whether going to oust the jurisdiction of the court, or to establish the want of merita in the libellants' case, cannot be admitted, under a peti- tion, for a writ of prohibition, to displace the right of the district court to entertain suits, the rule being that every such matter should be propounded by suitable pleadings, as a defence, for the consideration of the court, and be supported by competent proof6,provided the case is one within the jurisdiction of the dis- trict court. These remarks mean that the supreme court could only look at the allegations of the libel. The libel was the only record on which the district court was called to act when it entertained jurisdiction of the suit, by issuing process of attachment against the vessel. The libel alleged that there was a maritime lien on the vessel for the wharfage, and that ����