Page:Federal Reporter, 1st Series, Volume 4.djvu/571

 TEREBLIi' t». eCHÔONBB" 6. ri WOOLSET. 657 �stànce and held in custody till sale. But the suit îs essën- tially one to sell the res. The court must also be held to have aùthority to deliver the res to the purchaser. Otherwise •there would be a failing fuUy to enforce the lien for the ben- efit of the plaintiff. �The judgment in the suit in the state court in this case follows the state statute. It finds a sum due from the defend- ant to the plaintiff. It fixes the amount of the lien. It adjudges that the plaintiff is entitled to a judgment of fore- closure and sale of the vessel. It orders that the vessel be sold. It specifiees the officer who is to sell it. It directs that he give a bill of sale to the purchaser. It prescribes how the proceeds of sale shall be applied. It awards a judg- ment against the defendant for any deficiency. It orders that the purchaser be'let into possession on production of the bill of sale. It bars and forecloses forever ail right, title, interest, and equity of redemption of the defendant in the ■vessel "sold as aforesaid." This is not a common-law rem- edy. The suit is not one in which theehattel is attached aa the propërty of the defendant in the suit. The decree or judgment is like that in a suit for the foreclosùre of a môrl- gage on laiid. The suit is eseeùtiàlly a' Stiit in equity. It v?as 80 treated 'in the state court. It was tried by the court without a jury, the defendant having at the Commencement of the trial asked for a jury trial and been refused it. The proceeding authorized by the state statute, and the proceeding actually had, was neither a common-law remedy, nor wàs it a remedy which the common law was ever held to be com- petent to give. �The constitution of the United States (article 3, § 1) epeaks of "cases in law and equity" and "cases of admiralty and maritime jurisdiction," and the seventh amendment speaks of "suits at common law." The distinction between a common-law remedy and an equitable remedy and other remedie» is thus recognized, and the same distinction obtains in the United States statute under consideration. An equi- table remedy, such as the one in the present case, is not a common-law remedy, or one which the common law was ever ����