Foster, J.
Labor and materials were furnished for repairing the schooner Corporal Trim. Pa^nnent for the same was refused, and proceedings in rem were instituted to enforce alien provided by statute against the Vessel for which such labor and materials had been furnished. Process for the enforcement of the lieu was placed in the hands of the defendant as sheriff of the county of Lincoln, and the vessel was seized and attached by him.
This suit is trespass against the officer by the mortgagee of said vessel. A verdict of $2,443.73 has been rendered against the defendant, and the case comes before this court on exceptions and motion.
The question presented for consideration on the exceptions involves the constitutionality of a portion of section 8, c. 91, E. S., and other provisions pertaining to that portion, which in terms provide for the enforcement of liens for repairs upon vessels. That portion of section 8 is as follows: . ... "and whoever furnishes labor or materials for a vessel after it is launched, or for its repair, has a lien on it therefor, to be enforced by attachment within four days after the work is completed,” . In addition thereto subsequent sections provide for enforcing this as well as other liens named in the eighth section, specifying the form of the process in rem against the vessel itself substantially as in admiralty proceedings, with a separate judgment and execution against the vessel for the amount of the lien claim found to be due, and process for the sale of the vessel for the satisfaction of such lien.
It is admitted that the vessel was owned within the state, and that the materials and repairs were furnished at her home port, a port within the state where the vessel was owned. It is therefore a case of a domestic and not a foreign vessel; of a domestic vessel with materials and repairs furnished in a home port.
The contention of the plaintiff is, that the contract and service for the materials and repairs were of a maritime nature, and, with reference to the enforcement of any lien therefor by [523]*523proceedings in rem, cognizable exclusively in the admiralty courts of the United States. And it is claimed that, the statute authorizing the enforcement of such lien in the courts of this state, by proceedings of this kind, for repairs upon vessels, is unconstitutional, and therefore affords no protection to the officer acting under such process.
The question is squarely before us upon the case as it is presented, and must be directly met, notwithstanding that portion of the statute in reference to repairs upon vessels, and to the furnishing of labor or materials for the same after they are launched, has been repealed since this controversy arose.
The constitution of the United States (Art. III., § 2) ordains that " the judicial power shall extend . . to all cases of admiralty and maritime jurisdiction.” And according to the highest judicial authority by which the terms of the constitution are construed, it waslong ago settled that while congress can neither enlarge nor diminish this grant to the federal judiciary, it may designate the courts which shall exercise this jurisdiction. When this is done, no state law can enlarge or diminish the jurisdiction allotted to such courts.
In the proper exercise of this power by congress the Judiciary Act of 1789 was enacted constituting the district courts of the United States, by the ninth section of yvhicb it is provided that said courts "shall have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, . . saving to suitors in all cases the right of a common law remedy, where the common law is competent to give it.” It would seem unquestionable, therefore, that the jurisdiction of the district courts of the United States extends over all admiralty and maritime causes exclusively, with the exception of such concurrent remedy as was given by the common law.
" Admiralty and maritime jurisdiction,” according to the generally accepted and received use of the terms, extends to all things done upon and relating to the sea, to transactions relating to commerce and navigation, to damages and injuries upon the sea, and all maritime contracts, torts and injuries. De Lovio v. Boit, 2 Gallison, 468. But as applied in this country, with [524]*524its immense lakes and numerous navigable rivers, the doctrine in modern times has exteuded it "wherever ships float and navigation successfully aids commerce, whether internal or external.” The Hine v. Trevor, 4 Wall. 563 ; The Eagle, 8 Wall. 15.
Before proceeding further it may be proper to notice the difference in reference to liens upon domestic and foreign vessels. For repairs upon a foreign vessel, that is, a vessel out of the state or country where owned, the general maritime law gives the party furnishing the same a lien upon the vessel for his security, and he may maintain a suit in admiralty to enforce his right. In such case if the party sees fit to enforce his lien, his remedy belongs exclusively in the courts of the United States. But where a party furnishes materials or repairs upon a vessel in her home port, no lien therefor is implied by the maritime law as accepted and received in this country. The presumption in such case is that credit is given to the owners and not to the vessel. The reason for the existence of the lien in one case and not in the other, as declared by the courts, is based upon the principles of the maritime law, and not upon the fact that one is a contract maritime, in its nature, and the other not, for it is conceded by all the authorities that supplies, materials and repairs furnished to a vessel in her home port is a maritime contract. Peyroux v. Howard (The Planter), 7 Pet. 341; The St. Lawrence, 1 Black. 522 ; The Lottawanna, 20 Wall. 219 ; The Lottawanna, 21 Wall. 580 ; Abbott on Shipping, 143, 148.
But while by the general maritime law no lien exists in favor of parties furnishing repairs or necessaries to a vessel in her home port, it has been the admitted and recognized doctrine of our jurisprudence ever since the decision in The General Smith, 4 Wheat. 443, in 1819, that so long as congress does not interpose by general law to regulate the subject, the state, although it cannot create a lien and attach it to a service or contract not maritime in its nature and thereby extend the jurisdiction of the United States courts, (Peyroux v. Howard, (The Planter), supra; Forsyth v. Phœbus. (The Orleans) 11 Pet. 175, 184; Roach v. Chapman (The Capitol), 22 How. 129, 132; The [525]*525Belfast, 7 Wall. 644) may extend a lien based upon a- maritime service or contract to parties thus furnishing such repairs or necessaries to such vessel. The Belfast, supra: The Lottawanna, 21 Wall. 580; Edwards v. Elliott, 21 Wall. 557.
As to the methods of enforcing such liens, whether in the state or United States courts concurrently, or in the one to the exclusion of the other, notwithstanding the provisions of the Constitution and of the Judiciary Act of 1789, are questions which have frequently been before the Supreme Court of the United States, and given rise to decisions which are not easy of reconciliation. While a careful examination of the decisions is proper to a correct understanding of this question, it is unnecessary to particularly trace them in this connection. In such examination, hoivever, it becomes necessary to bear in mind that the want of a uniform system of admiralty administration in cases where local law or state statutes gave a lien upon the property where none existed by the general maritime law, led to the adoption of what is known as Rule XII in admiralty, in 1844, and the amendments thereto in 1859 and 1872.
For many years after the adoption of the Constitution, jurisdiction was concurrently exercised by the state and United States courts in reference to proceedings in rem for the enforcement of liens created by the statutes of the different states. The federal courts entertained jurisdiction and enforced liens which were not maritime or based upon maritime service or contract. Liens created by statute and ajiplied to the construction and building of new vessels, which are land and not sea contracts, were enforced by the admiralty or district courts of the United States, as well as liens for materials or repairs upon them after they were built. But in The People’s Ferry Co. v. Beers, 20 How. 393, in 1857, the court laid down the doctrine that a contract for the construction of a vessel is not maritime because it is neither made nor performed on the water, aud that no maritime lien is created or exists by the performance of such a contract, and refused to recognize jurisdiction in the district courts in the enforcement of statutory liens attached to contracts for the original construction of vessels. Roach v. Chapman [526]*526(The Capitol), 22 How. 132 ; Edwards v. Elliott, 21 Wall. 532.
The decision in Peyroux v. Howard (The Planter), 7 Pet. 324, rendered in 1833, has been considered as establishing the principle that if a state statute gives a lien in its nature maritime, that is, founded upon a maritime contract, and the subject matter is within admiralty jurisdiction, the lien may be enforced by a suit in rein in the admiralty courts.
No principle of admiralty appeared to be better established in the United States than that which we have just stated — that where a local law attaches a maritime lien to a maritime service within admiralty jurisdiction, a suit to enforce such lien lies in the federal courts in admiralty, and that a lien for materials or repairs on a vessel engaged in maritime' commerce, a sea-going vessel, is a maritime lien, and within admiralty jurisdiction. This doctrine was generally understood in the district courts, and was affirmed in The General Smith, 4 Wheat. 438, in 1819 ; Peyroux v. Howard (The Planter), 7 Pet. 324, in 1833; Forsyth v. Phœbus (The Orleans), 11 Pet. 175, in 1837.
It was after these decisions that Pule XII in admiralty was adopted, not as establishing the law, but assuming it to be settled, first, that there was no lien for materials or repairs on a domestic vessel unless by force of local or statute law; and, second, that if there was such a lien by local or statute law, it was enforcible in the admiralty courts of the United States. The St. Lawrence, 1 Black. 529.
This rule was changed in 1858 to take effect May 1, 1859, and by the change thus made process in rein was denied unless the lien was given by the maritime law. Maguire v. Card (The Goliah), 21 How. 248; The St. Lawrence, supra.
This change in the rule, while attempting to avoid the embarrassment arising in the federal courts from the varying and conflicting state laws, and the conflict of rights arising under them, (The St. Lawrence, supra) proved unsatisfactory, and after " diverse experiences and many agitations of the subject,” the Supreme Court adopted a policy in accordance with the earlier decisions of that tribunal, and in 1872 the following rule was established: "In all suits by material men for supplies or [527]*527repairs, or other necessaries, the libellant may proceed against the ship and freight in rem, or against the master or owner in giersonam.” As was said by Peters, C. J., in Hayford v. Cunningham, 72 Maine, 133, "the doors of the district courts, which had been since 1859 shut against suits like those now before us, were opened to them again. Since this date the opinion and feeling among the judges of the federal courts seem to be that their jurisdiction must be exclusive."
But in determining to what extent the legislature may go in creating or extending liens iu matters of this kind, it is now too well settled to admit of doubt that the legislature of a state cannot grant admiralty jurisdiction to its own courts in matters within the jurisdiction of the district courts. The highest judicial tribunal in the land, iu a line of decisions by which this court must bo governed, has most emphatically asserted the doctrine and established the principle that the jurisdiction for the enforcement of a maritime lien, is, under the Constitution and the Judiciary Act of 1789, exclusively iu the courts of the Uuitod States, and cannot be exercised by state courts, although conferred on them by statute.
The question was not directly decided until 1866, in the case of The Moses Taylor, 4 Wall. 411. The statutes of California had established a system of liens upon vessels, foreign and domestic alike, and authorized the courts of the state to enforce them by proceedings in rem. The liens created and the proceedings authorized had the character and incidents of admiralty liens and proceedings. The steamer Moses Taylor was seized and libelled iu the state court of California by a proceeding in rem to enforce a lien for the breach of a contract to transport a passenger from Panama to San Francisco. The state court sustained jurisdiction, and the case was taken to the Supreme Court of tlie United States. The question was directly whether a state court can entertain an admiralty suit in rem to enforce an admiralty lien. The court was unanimous in holding that such jurisdiction was exclusively vested iu the district courts of the United States, and that the provision in the Constitution by which the judicial power of the United States "shall extend [528]*528. . to all cases of admiralty and maritime jurisdiction,” had, of itself, the effect to take such jurisdiction from the courts of the states. And it was further held that whether that was so or not, the Constitution at least authorized congress to vest the admiralty jurisdiction in federal courts exclusively of the state courts, and that congress had done this by the Judiciary Act of 1789, which provides that "the district courts shall have, exclusively of the courts of the several states, cognizance .’ . and shall also have exclusive original cognizance of all civil causes of admiralty and marine jurisdiction.”
It "was contended in argument, however, that a concurrent jurisdiction in the state courts was reserved for proceedings of this nature by the last clause of the Judiciary Act, " saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it.” But the court held that this does not save a proceeding in rem as used in the admiralty courts, and that such a proceeding is not a remedy afforded by the common law.
At the same term of the court came the decision in The Hine v. Trevor, 4 Wall. 555. The statutes of Iowa, like those of California, provided for its courts remedies and processes for enforcing liens on vessels, and under them proceedings had been had against the Hine for a collision on the Mississippi river. The state court sustained jurisdiction, and the case was taken to the Supreme Court of the United States. Following the decision in The Moses Taylor the court held exclusive jurisdiction in the district courts of the United States. "It is a little singular,” say the court, " that, at this term of the court, we should for the first time have the question of the right of the state courts to exercise this jurisdiction, raised by two suits of error to state courts, remote from each other.” The claim was also set up in that case that the proceedings authorized by the statutes of Iowa came within that clause of the Judiciary Act which saved to suitors the right of a common law remedy. But the court say that " the remedy pursued in the Iowa courts, in the case before us, is in no sense a common law remedy. It. is a remedy [529]*529partaking of all the essential features of an admiralty proceeding in rein.1'
In 3 868, the same question arose in a case of contract in The Belfast, 7 Wall. 624, and received the same decision. The state court in Alabama had entertained proceedings to enforce a lien for breach of contract of affreightment, the statutes of that state having authorized the proceedings. Mr. Justice Clifford, giving the opinion of the court, places the case on the authority of The Moses Taylor and The Hine v. Trevor, and says the difference between contract and tort is immaterial, on the point of the exclusiveness of the jurisdiction of the federal courts. If the contract is maritime, and the lien attached to it is a maritime lien, not enforciblo by common law remedies, the jurisdiction of the district courts is exclusive of that of any other court, whether state or national.
Very many state courts, as well as district courts, have passed upon the question either directly or indirectly, and all seem to incline in one direction.
This is now the settled policy of the Supreme Court as foreshadowed if not directly asserted, in all its recent decisions where the question is raised. As late as 1874, in the case of The Lottawanna, 21 Wall. 580, the doctrine of exclusive jurisdiction in the district courts was affirmed in the most emphatic terms. The court say, "It seems to be settled in our jurisprudence that so long as congress does not interpose to regulate the subject, the rights of material men furnishing necessaries to a vessel in her home port may be regulated in each state by state legislation. State laws, it is true, cannot exclude the contract for furnishing such necessaries from the domain of admiralty jurisdiction, for it is a maritime contract, and they cannot alter the limits of that jurisdiction ; nor can they confer it upon the state courts so as to enable them to proceed in rent, for the enforcement of liens created by such state laws, for it is exclusively conferred upon the district courts of the United States. They can only authorize the enforcement thereof by common law remedies, or such remedies as are equivalent [530]*530thereto. But the district courts of the United States having-jurisdiction of the contract as a maritime one, may enforce liens given for its security, even when created by the state laws.”
A lien on a sea-going vessel for repairs made upon her is a recognized admiralty lien. It is nothing else. But it is not known to or enforcible by courts of common law. This lien when applied to a domestic vessel has not changed its nature. All the change there is, is this: It is extended to a class of persons not entitled to claim its benefits under the general maritime law. And such lien may lawfully be granted by the laws of a state in favor of material men for furnishing repairs or materials to a domestic vessel, to be enforced by proceedings in rem in the district courts of the United States, but not in the courts of the state. The Lottawanna, 21 Wall. 559. The authorities which have been cited are sufficient to show the judicial sentiment upon this question. It has been followed and acted upon in several recent cases in the district courts. The Red Wing, 14 Fed. Rep. 869, decided in 1882; The Howard, 29 Fed. Rep. 604, decided in 1887 ; The Alanson Sumner, 28 Fed. Rep. 670; U. S. v. B. & H. County Ferry Co. 21 Fed. Rep. 331.
Nor do the authorities deny that such liens may be enforced by common law remedies or such as are equivalent thereto, in the state courts. " But it is not a remedy in the common law courts which is saved, but a common law remedy; not such as a legislature may confer upon a common law court, but such as the common law itself (in 1789) was competent to give.” Hayford v. Cunningham, 72 Maine, 133. ” It could not have been the intention of congress by the exception in that section, to give the suitor ail such remedies as might afterwards be enacted by state statutes, for this would have enabled the states to make the jurisdiction of their courts concurrent in all cases, by simply providing- a statutory remedy for all cases.” The Hine v. Trevor, 4 Wall. 571.
The proceedings in the case under consideration, as in Hayford v. Cunningham, supra, were not a common law remedy, nor such as the common law was competent to give. The suit was [531]*531against the vessel itself and not against the interest of the owner in it. The characteristic feature of the proceeding is that the vessel proceeded against is itself seized and impleaded as the defendant, which is substantially the proceeding in a court of admiralty in proceedings in rem. At common law, proceedings are against persons, and if property is seized or taken it is taken as the property of the person proceeded against, and the purchaser at the sheriff’s sale gets only such title or interest as the defendant had. The process is against another as owner of the property,, " and not against the property as an offending thing, as in the-case where the libel is in rem in the admiralty court to enforce a¡ maritime lien in the property.” Leon v. Galceran, 11 Wall. 189; Johnson v. Chicago Elevator Co. 119 U. S. 397.
The statute, therefore, so far as it authorized proceedings in rem in the courts of this state for the enforcement of a lien for-labor, materials, or repairs upon a domestic or foreign sea-going vessel, must be held to be in contravention of the constitution, and laws of the United States.
The result is that the process under which this defendant-attempts to justify was not such as would protect him in seizing-the vessel. Sufficient appeared upon its face to show that it was. not from a court of competent jurisdiction in reference to the subject matter. The process disclosed upon its face that it was. to enforce a lien claim by proceedings in rem for repairs upon the vessel against which the charges were made as the specifications annexed to and forming a part of the proceedings plainly show. The process was not only irregular, but absolutely void.. Such was the decision in Campbell v. Sherman, 35 Wis. 103, where it was held that a process in rem to enforce, a maritime-lien issuing from a state court will not protect the officer-executing it inasmuch as the state courts have no jurisdiction in such cases. This principle is recognized in Fisher v. McGirr, 1 Gray, 45, where it is expressly held that if the court has no jurisdiction over the subject matter, the process, though apparently regular, is not merely voidable, but wholly void, and the officer taking property under it has no authority, and is therefore liable to an action of trespass. See also Cassier v. [532]*532Fales, 139 Mass. 462; Elsemore v. Longfellow, 76 Maine, 130-1. And moreover it is settled that where the law under which the officer acts is "unconstitutional it is void; though having the form, it has not the force of law; the provisions, professing to confer jurisdiction, give no jurisdiction; and the proceedings even of subordinate officers under it cannot be justified.” Warren v. Mayor and Aldermen of Charlestown, 2 Gray, 97 ; Norton v. Shelby County, 118 U. S. 442 ; Virginia Coupon Cases, 114 U. S. 271.
The case shows that the plaintiff in this action, at the time when the seizure was made, and at the commencement of this suit, held a mortgage upon the vessel with the right of immediate possession in himself, the time having elapsed in which such .right belonged .to the mortgagor by the terms of the mortgage. He can therefore maintain this action. Welch v. Whittemore, 25 Maine, 86; Holmes v. Sprowl, 31 Maine, 76; Barrows v. Turner, 50 Maine, 128; Staples v. Smith, 48 Maine, 470; Codman v. Freeman, 3 Cush. 306.
The only remaining question is one of damages. And upon ■this the instructions given to the jury were undoubtedly correct. We have examined this question with considerable care, and are .unable to arrive at any other conclusion than that the value of ■the vessel at the time of the conversion, with interest thereon to the time of verdict, is the true rule of damages in this case. •Such is the general and well settled rule in actions of this nature. This rule applies where the plaintiff is general owner, or is answerable over to others.
But where the defendant, although a wrong doer, has a lien on the property, such amount as may be due on the lien is allowed to be deducted from the value, to avoid circuity of action, in mitigation of damages. Chamberlin v. Shaw, 18 Pick. 283.
Or, he may show in-mitigation that the goods did not belong to the plaintiff and that they have gone to the use or benefit of the owner. Squire v. Hollenbeck 9 Pick. 552. But in such case it is essential to show that the property has actually gone to the use of the real owner, for although there may be a mere outstanding title in a third person, that would furnish no ground for reduction [533]*533of damages to one who has wrongfully taken the property or converted it to his own use. Case v. Babbitt, 16 Gray, 280; Lyle v. Barker, 5 Bim. (Pa.) 457 ; White v. Webb, 15 Conn. 302; Cressey v. Parks, 76 Maine, 534; Pierce v. Benjamin, 14 Pick. 356 ; Perry v. Chandler, 2 Cush. 242 ; Carpenter v. Dresser, 72 Maine, 380. Or, in reduction, it may be shown that the defendant is entitled to the property after the plaintiff’s mortgage has been satisfied. Spoor v. Holland, 8 Wend. 445 ; Ullman v. Barnard, 7 Gray, 558.
But where the plaintiff is responsible over by operation of law or otherwise to a third person ; or if for any cause the defendant is not entitled to the balance of the value ; then the rule is, that the value of the property should be assessed to the plaintiff. Chamberlain v. Shaw, 18 Pick. 284; Green v. Farmer, 4 Burrows, 2214. Or, if the wrong doer is a third person and not the general owner. White v. Allen, 133 Mass. 424.
In the case of Ullman v. Barnard, supra, the court saj': "The measure of damages is the value of the flour, with interest from the time of its conversion. The right of property and possession were both in the plaintiff; and although he had only a special property in the flour, as security for the amount of the drafts, he is entitled to recover its full value. He is answerable over to the general owner.” In this case the actual possession was not in the plaintiff, but he had the right of possession.
The case of Codman v. Freeman, 3 Cush. 314, is very analogous to the question before us. The action was trespass by the mortgagees against an officer for attaching and selling certain personal property. Insolvency proceedings were instituted against the party owing the property and thereby the attachments were dissolved, and the court say that the attaching creditors no longer had any lien by their attachment or other interest in the goods, and that the interest of the officer created by the attachment was divested, and he and the creditors were then strangers. Shaw, C. J., by whom the opinion of the court was delivered, says : "By force of the mortgage, the plaintiffs became owners of the property, as against the mortgagor, with the right of present possession, by a defeasible title, indeed, still by a [534]*534title which made them owners until defeated. The sheriff takes them under claim of a right to attach them in behalf of creditors ; but that attachment is dissolved, and then the plaintiffs have the same right against the officer, as they would against any other stranger ; and, upon recovering damages, they are entitled to the full value.” See also Pomeroy v. Smith, 17 Pick. 86 ; Barrows v. Turner, 50 Maine, 129-30 ; Carpenter v. Dresser, 72 Maine, 379.
In this case the seizure was without right. The officer was a wrong doer, and upon no principle of law can he claim any mitigation or reduction of damages from the real value of the vessel. The defendant stands in no position to show that he is entitled to the balance of the value, if any, above the plaintiff’s mortgage. His position is that of a stranger and wrong doer, and by the well settled principles of law is responsible to this plaintiff for the value of the property.
But notwithstanding the plaintiff is entitled to recover upon the law as appears to have been correctly given, yet we have no doubt from the evidence that a wrong has been done the defendant in the amount of the verdict. The case shows that the mortgagor has surrendered all his interest in the vessel to the plaintiff with no consideration other than that of the original. mortgage. Whatever the law may be as applied to other cases, the court in this case will not sustain a verdict for an amount larger than the mortgagee’s interest in the vessel, and not even to that extent if the amount is greater than a fair value of the vessel. The schooner was twenty-five years old. Some of the witnesses place its value as low as one thousand dollars. Others place a higher estimate upon it. While the plaintiff may be entitled to a fair compensation, certainly there is nothing in the case by which he should be entitled to any fancy value of the property. The equities of the case are most decidedly against it. The jury must have been influenced by bias or prejudice in returning the amount of their vei’dict.
The motion for a new trial must be sustained, unless the plaintiff will remit from the amount of the verdict all above ■one thousand seven hundred dollars. If he shall remit all above that sum, and have such entry made upon the docket [535]*535where the action is pending within thirty days from the time notice of decision in this case is received by the clerk, then the motion for a new trial is to be overruled, otherwise to be sustained and a new trial granted.
Exceptions overruled. Judgment accordingly.
Peters, C. J., Walton, Virgin, Libbev and Haskell, JJ., concurred.