Page:Federal Reporter, 1st Series, Volume 4.djvu/572

 658 niOBBAL BBPOBTBB. �considered as competent to give. To authorize the institu- tion of a suit in personam on a contract, witii a judgment for money, and to add to it what the state statuts in this case has added, is not to add a common-Iaw remedy as respects the proceeding to enforce the lien on the chattel. It is not like a judgment for money, and an execution thereon, under which the interest of the defendant in the vessel might be seized and sold. It is a proceeding based on a prior lien on the vessel to enforce that lien by a sale of the vessel. The lien set up in the complaint in the suit in the state court is a lien claimed to have arisen from the employaient of the plaintiff by the owner of the vessel to repair her, the delivery of the vessel by her owner to the plaintiff for the purpose of repairing her, the making of the repairs, and the continued possession of the vessel by the plaintiff thereafter up to the bringing of the suit. No lien by any state statute is alleged, nor any maritime lien, nor is anything alleged as to whether the home port of the vessel was in the state of New York, where the repairs were made. �The findings of fact by the court show that the lien foreclosed was held to be solely the lien so set up in the complaint. The case, therefore, is one of a maritime contract, followed by what is claimed to be a possessory lien, not a maritime lien, nor a lien created by statute. The aot of 1869 does not create any lien. It refers to existing liens, and it may be donbted whether it is not limited to liens which in their na- ture are capable of being enforced and foreclosed by a sale of the chattel by the person holding the lien, and whether it gives to any lien any attribute which it does not otherwise possess. At common law, a lien arising out of a locatio operis faciendi, or a hire of labor and services, euch as the one in the present case, is merely a right to retain the thing bailed until the compensation for the labor and service is paid. But the lien is one strictly personal to the person contracting to do the work or services, and the thing bailed cannot be sold or parted with by him. Story on Bailments, § 440; Cross on Lien, 47-73; Jones on Bailments, 90. �In Peters v. Fleming, 6 Meeson & Welsby, 43, one Wil- ����