Page:Federal Reporter, 1st Series, Volume 9.djvu/636

 THE QENBBAIj TOMPKINS. 621 �cites Bryan v. TJie Ptide of the West, 12 Mo. 371 ; The Gen. Brady, 6 Mo. 558; The Eureka, 14 Mo. 532. I am of the opinion that under the Missouri law the intervenor had a lien. �2. It is objected that the intervenor has no lien that this court can recognizBj because the Missouri lien law, under which the lien is made, is in conflict with the constitution of the United States. The remedy given by the Missouri law is, in all probability, unconstitu- tional. The cases cited — The Moses Taylor, 4 Wall. 411; The Hine V. Trevor, Id. 555 ; and The Belfast, 7 Wall. 644 — are clear on this point. But I think the right given by the Missouri laws can be easily separated from the remedy given by those laws. Section 4225, entire, is not obnoxious, but is olearly within state authority, as recognized by the supreme court of the United States. See The Lottawanna, 21 Wall. 581, 582. The following sections of the Mis- souri statutes relating to priorities and remedies may be stricken out and this section will stand by itself. �3. It is also objected that the lien given by Missouri at the home port will not be recognized out of the state, and that this court ought not to recognize such a lien. No authorities are cited in support pf this position save those cited in Desty, Adm. § 89, which probably were all cases of priority. In this circuit, where priority was not in- Tolved, such domestic liens have been recognized. See Carroll v. Leathers, 1 Newberry, 436; The Katie, 3 Woods, 182; and Judge Hill in this case. See, also, 1 Brown, Adm. 542. �4. It is further objected that the demand of the intervenor is pre- scribed as a lien under the law of Missouri, because no suit was in- stituted to enforce it within nine months from its creation. Section 4268 of the Revised Statutes 6i Missouri reads : �"AU suit» upon liens in any otfier than the flrstclass shall be commenced within nine months after the true date of the last item in the account upbn which the action is founded; and any failure to commence suit, as in this or the last preceding section required, shall discharge the boat or veSselfrom the lien of the demand claimed." �The demands for, liens in this case are not within the first dass referred to. No suit under this section has been instituted in Mis- souri at all; and the demand sued on here was filed June 1, 1881. It follows that all the liens claimed as arising nine months prior to that date are within the statute, and ceased to have any effect as against the Tompkins. �The libel of intervention and the evidence show that the debts ��� �