Peyton, C. J. :
Thomas Hassam and John Pooley instituted suit in the circuit court of Hancock county against Asa H. Hursey and Asa Hursey, to enforce an alleged lien on a certain schooner built in said county, for materials and money furnished by them in building the same, under an act of the legislature, entitled ‘£ An act to regulate the lien of mechanics and others for labor and materials.” Rev. Code, 327.
To the plaintiffs’ petition the defendants demurred, on the grounds, among others, that the circuit court of said county had no jurisdiction over the subject-matter of the suit, and [140]*140that the action is barred by the statute of limitations of six months. The demurrer was overruled by the court, whereupon the defendants pleaded: 1. The general issue, non assumpsit. 2. That the suit was not brought within six months after the cause of action accrued ; and, 3. The plea of payment. Upon these pleas issues were joined, which were submitted to a jury, who found a verdict for the plaintiffs for the sum of $748 32.
The defendants moved the court to set aside the verdict, and for a new trial, on the following grounds, among others: 1. Because the court directed the jury to find, specially, whether the suit was commenced within six months after the account was due and payable. 2. Whether the suit or claim was a special lien upon the vessel described in the petition; and, 3. That if they should find that the suit was barred under the six months’ statute of limitation, then they should find a verdict generally against the defendants for the amount proved to be due the plaintiffs. 4. Because the court erred in giving the instructions asked by the plaintiffs, and refusing those asked by the defendants, and because the verdict was contrary to law and evidence. This motion was overruled by the court, who gave judgment against the defendants for the amount of the verdict and costs of suit, with a special order for the sale of the schooner, upon which a lien was found by the jury to exist. To this action of the court, in overruling the motion for a new trial, the defendants excepted, and in their bill of exceptions they set out the evidence given on the trial of the cause, and the instructions asked of the court.
From this judgment the defendants bring the case to this court by writ of error, and make the following assignments of error:
1. The court erred in overruling the demurrer.
2. The court erred in directing a special verdict on issues after the evidence was submitted on the issues made in the pleadings.
3. The court erred in the granting the instructions asked [141]*141by the plaintiffs, and in refusing those asked by the defendants.
4. The court erred in overruling the motion for a new trial.
5. There was no issue on a special plea in bar.
6. The court below had no jurisdiction to decree the sale of the vessel. •
With respect to the first assignment of error, we think the court did not err in overruling the defendants’ demurrer to the plaintiffs’ petition, for the reason that, in this action, the objection to the jurisdiction of the court and the statute of limitations cannot properly be taken by demurrer. As a general rule, these defenses can be made only by special pleas. *
The second assignment of error is believed to be well taken. Whether a lien upon the vessel existed, was a question of law for the court to determine, and should not have been submitted to the jury. And it was error to instruct the jury that if they should find that the suit was barred by the six months’ statute of limitations, then they should find a verdict generally against the defendants for the amount proven to be due the plaintiffs. If there be no lien upon the property, the plaintiffs would have no right to a general judgment in this form of action. For the statute provides, that in case judgment be given for the plaintiff against the builder, it shall, in case he was actually served with process, be entered against him generally, with costs, as in other cases, and with a special order for the sale of the property upon which the lien exists, for the payment thereof, and for an execution, as in other cases, for the residue that may remain unpaid after the sale of said property. Rev. Code, 329, art. 11. And this is upon the principle of preventing a multiplicity of suits, and of doing ample justice between the parties in one suit. If there be no lien on the property, the plaintiff would not be entitled to a special order for the sale of it, and in such case, if a general judgment were rendered, the- execution, instead of issuing for a residue, would run for the whole [142]*142amount of the judgment, contrary to the true intent and meaning of the statute. It is very clear that if the plaintiff fails to establish his lien on the property, he is not entitled to a general judgment against the defendant. In such case the plaintiff has misconceived his remedy.
The third assignment of error impeaches the correctifess of the instructions asked by the plaintiffs, and of the action of the court in refusing the instructions asked by the defendants.
In the sixth instruction to the jury on the part of the plaintiff, the court say, that when there is a running account between parties, with no agreement about the time of payment, it is not considered due until made’out and presented. This is an incorrect exposition of the law. Our statute provides, that in all actions of debt or assumpsit, brought to recover the balance due upon a mutual and open current account, the cause of action shall be deemed to have accrued at the time of the true date of the last item proved in such account; and in all other actions upon open accounts, the period of limitation shall commence to run against the several items thereof, from the dates at which the same respectively became due and payable. Hev. Code, 401, art. 20.
The court erred in refusing the following instructions for the defendants : 1. That if they believe, from the evidence before them, that this suit was not commenced within six months next after the time when the amount sued for became due and payable, then and in that case they must find in favor of the defendants; 2. That if they believe, from the evidence before them, that the account sued on was due and payable on the 28th day of December, 1867, and that this suit was commenced on the 24th day of October, 1868, then more than six months had elapsed from the time the claim sued on was due and payable, and in that event they must find for the defendants in this proceeding. These instructions propounded the law correctly, and should have been given. The court also erred in refusing to give [143]*143the fourth instruction asked by defendants as follows: That the jury are the judges of the weight of evidence, and that if they believe from the evidence that the account sued on has been paid before the suit was brought, then they must find for the defendants. As there was some evidence which tended to prové payment of the account, this instruction ought to have been given.
The errors above indicated clearly sustain the fourth assignment of error, and show that the court erred in overruling the motion for a new trial.
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Peyton, C. J. :
Thomas Hassam and John Pooley instituted suit in the circuit court of Hancock county against Asa H. Hursey and Asa Hursey, to enforce an alleged lien on a certain schooner built in said county, for materials and money furnished by them in building the same, under an act of the legislature, entitled ‘£ An act to regulate the lien of mechanics and others for labor and materials.” Rev. Code, 327.
To the plaintiffs’ petition the defendants demurred, on the grounds, among others, that the circuit court of said county had no jurisdiction over the subject-matter of the suit, and [140]*140that the action is barred by the statute of limitations of six months. The demurrer was overruled by the court, whereupon the defendants pleaded: 1. The general issue, non assumpsit. 2. That the suit was not brought within six months after the cause of action accrued ; and, 3. The plea of payment. Upon these pleas issues were joined, which were submitted to a jury, who found a verdict for the plaintiffs for the sum of $748 32.
The defendants moved the court to set aside the verdict, and for a new trial, on the following grounds, among others: 1. Because the court directed the jury to find, specially, whether the suit was commenced within six months after the account was due and payable. 2. Whether the suit or claim was a special lien upon the vessel described in the petition; and, 3. That if they should find that the suit was barred under the six months’ statute of limitation, then they should find a verdict generally against the defendants for the amount proved to be due the plaintiffs. 4. Because the court erred in giving the instructions asked by the plaintiffs, and refusing those asked by the defendants, and because the verdict was contrary to law and evidence. This motion was overruled by the court, who gave judgment against the defendants for the amount of the verdict and costs of suit, with a special order for the sale of the schooner, upon which a lien was found by the jury to exist. To this action of the court, in overruling the motion for a new trial, the defendants excepted, and in their bill of exceptions they set out the evidence given on the trial of the cause, and the instructions asked of the court.
From this judgment the defendants bring the case to this court by writ of error, and make the following assignments of error:
1. The court erred in overruling the demurrer.
2. The court erred in directing a special verdict on issues after the evidence was submitted on the issues made in the pleadings.
3. The court erred in the granting the instructions asked [141]*141by the plaintiffs, and in refusing those asked by the defendants.
4. The court erred in overruling the motion for a new trial.
5. There was no issue on a special plea in bar.
6. The court below had no jurisdiction to decree the sale of the vessel. •
With respect to the first assignment of error, we think the court did not err in overruling the defendants’ demurrer to the plaintiffs’ petition, for the reason that, in this action, the objection to the jurisdiction of the court and the statute of limitations cannot properly be taken by demurrer. As a general rule, these defenses can be made only by special pleas. *
The second assignment of error is believed to be well taken. Whether a lien upon the vessel existed, was a question of law for the court to determine, and should not have been submitted to the jury. And it was error to instruct the jury that if they should find that the suit was barred by the six months’ statute of limitations, then they should find a verdict generally against the defendants for the amount proven to be due the plaintiffs. If there be no lien upon the property, the plaintiffs would have no right to a general judgment in this form of action. For the statute provides, that in case judgment be given for the plaintiff against the builder, it shall, in case he was actually served with process, be entered against him generally, with costs, as in other cases, and with a special order for the sale of the property upon which the lien exists, for the payment thereof, and for an execution, as in other cases, for the residue that may remain unpaid after the sale of said property. Rev. Code, 329, art. 11. And this is upon the principle of preventing a multiplicity of suits, and of doing ample justice between the parties in one suit. If there be no lien on the property, the plaintiff would not be entitled to a special order for the sale of it, and in such case, if a general judgment were rendered, the- execution, instead of issuing for a residue, would run for the whole [142]*142amount of the judgment, contrary to the true intent and meaning of the statute. It is very clear that if the plaintiff fails to establish his lien on the property, he is not entitled to a general judgment against the defendant. In such case the plaintiff has misconceived his remedy.
The third assignment of error impeaches the correctifess of the instructions asked by the plaintiffs, and of the action of the court in refusing the instructions asked by the defendants.
In the sixth instruction to the jury on the part of the plaintiff, the court say, that when there is a running account between parties, with no agreement about the time of payment, it is not considered due until made’out and presented. This is an incorrect exposition of the law. Our statute provides, that in all actions of debt or assumpsit, brought to recover the balance due upon a mutual and open current account, the cause of action shall be deemed to have accrued at the time of the true date of the last item proved in such account; and in all other actions upon open accounts, the period of limitation shall commence to run against the several items thereof, from the dates at which the same respectively became due and payable. Hev. Code, 401, art. 20.
The court erred in refusing the following instructions for the defendants : 1. That if they believe, from the evidence before them, that this suit was not commenced within six months next after the time when the amount sued for became due and payable, then and in that case they must find in favor of the defendants; 2. That if they believe, from the evidence before them, that the account sued on was due and payable on the 28th day of December, 1867, and that this suit was commenced on the 24th day of October, 1868, then more than six months had elapsed from the time the claim sued on was due and payable, and in that event they must find for the defendants in this proceeding. These instructions propounded the law correctly, and should have been given. The court also erred in refusing to give [143]*143the fourth instruction asked by defendants as follows: That the jury are the judges of the weight of evidence, and that if they believe from the evidence that the account sued on has been paid before the suit was brought, then they must find for the defendants. As there was some evidence which tended to prové payment of the account, this instruction ought to have been given.
The errors above indicated clearly sustain the fourth assignment of error, and show that the court erred in overruling the motion for a new trial.
The views already expressed render it unnecessary to notice .the fifth assignment, we will therefore proceed to the consideration of the sixth and last assignment of error, which brings in question the jurisdiction of the court to entertain the case, on the ground that it belongs to the courts of the United States, having cognizance of all cases of admiralty and maritime jurisdiction.
Where the proceeding is in rem, to enforce a specific lien, it is incumbent upon those who seek the aid of the court, to establish the existence of such lien in the particular case where repairs have been made, or necessaries have been furnished to a foreign ship, or to a ship in a port of the state to which she does not belong. The general maritime law, following the civil law, gives the party a lien on the ship itself for his security, and he may well maintain a suit in rem in the admiralty to enforce it. But in respect to repairs and necessaries in the port of the state to which the ship belongs, the case is governed altogether by the municipal law of the state, and no lien is implied, unless it is recognized by that law.
It has been long settled, that by the common law, which is the law of this state, material men and mechanics furnishing repairs to a domestic ship, have no particular lien upon the ship itself for the recovery of their demands. The General Smith, 4 Wheat. 438. That if the material men have any lien in this case, it must be by virtue of some contract or statutory provision.
[144]*144The admiralty jurisdiction, in cases of contract, depends primarily upon the nature of the contract, and is limited to-contracts, claims and services, purely maritime, and touching rights and duties appertaining to commerce and navigation. Liens on vessels incumber commerce, and are discouraged ; so, that where the owner is present, no lien is acquired by the material man; nor is any where the vessel is supplied or repaired in the home port. The People’s Ferry Company of Boston v. Beers et al., 20 How. 393.
In the case of Maguire v. Card, 21 How. 248, the court say: “We have determined to leave all these liens (of mechanics and material men) depending upon the state, and not arising out of the maritime contract, to be enforced by the state courts.”
A maritime lien does not arise in contract for materials and supplies furnished to a vessel in her home port, and in respect to such contracts it is competent for the states, under the decisions of the supreme court of the United States, to create such liens as their legislatures may deem just and expedient, not amounting to a regulation of commerce, and to enact reasonable rules and regulations, prescribing the mode of their enforcement. But in all cases where a maritime lien arises, the original jurisdiction to enforce the same by a proceeding in rem, is exclusive in the district courts of the United States. The Belfast, 7 Wall. 624.
Material men may proceed in the case of supplies, repairs or other necessaries furnished to a foreign ship, or to a ship in a foreign port, against the ship and freight in rem, or against the master or owner, alone, in personam. In the case of a domestic ship, their right of action for supplies, repairs or other necessaries, is limited to an action in personam. 2 Parsons on Maritime Law, 675.
For the reasons herein stated, the judgment must be reversed, the cause remanded and a venire de novo awarded.