author: Duer, J.

text:
    Cook v. Litchfield.
    The liability of an endorser of a promissory note, or bill of exchange, is governed in all cases, by the law of the place where the endorsement is made; and by the endorsement) we are to understand the contract itself, not the mere act of writing the name upon the back of the instrument. It matters not, when or where this may have taken place, since there is no endorsement, binding as a contract, until the note or bill is transferred to a third person, with the intent of enabling him to enforce its payment. The place of this effectual transfer, is, therefore, the place of the contract, and the law which there prevails, governs its construction.
    Where the defendant, being a resident of the State of Michigan, endorsed certain promissory notes, for the accommodation of the maker, who was also a resident of that state, and the notes so endorsed, were sent by the maker to his agent in Hew York, to be delivered to a creditor of the maker, residing in said state, as ■ satisfaction of his debt. Held, that the endorsement, as a contract, was made in Hew York,' as certainly" as if the transfer, wliich-gave a title, had been made by the endorser in person; the agent of the maker being, to all intents, the agent also, of the endorser, for the purpose of a transfer and delivery.
    By the laws of Hew York, a notice to an endorser is sufficient, which, expressly, or by a reasonable intendment, conveys to his mind all the information that he is entitled to have. It must contain such a description of the note, as may enable the endorser to ascertain its identity, and must also communicate the fact of its dishonor.
    Where no doubts are raised by extrinsic facts, the question of the sufficiency of a notice of protest, is to be determined by the court.
    The omission to staf e in a notice of protest, the time when, and the place where, a note became payable, is immaterial, if the facts which are stated, are suffi- . cient to convey all necessary information.
    If the endorser has endorsed other notes of a like tenor, and an uncertainty in the application of a notice may thus have arisen, the onus is upon him, of showing it.
    A notice which states that the note “was, on the day the same became due, duly protested for non-payment,” communicates, by necessary implication, the factSj that a demand of payment was made on the proper day, and at the proper place, and was refused, and is therefore a valid notice.
    The same construction is applicable to the notices of the protests of promissory notes, as of bills of exchange.
    The pendency of a prior suit in the courts of the United States, or the courts of a sister state, is no defence to an action, and the code has not changed the rule in this respect.
    (Before Duer, Campbell & Paine, J. J.).
    Dec. 1, 2, 29, 1851.

      This was an action brought against the defendant, as the endorser of four promissory notes, made by Joshua L. Carew, dated April 2d, 1849, payable to the order of the defendant, with interest from date, and payable, severally, nine, ten,-eleven, and twelve months after date. The notes were made payable at the bank of New York. •'
    The complaint averred the making of the notes, their endorsement by the defendant to one Ryckman, and by him to the plaintiff, and presentment, and demand of payment of the notes at maturity, non-payment and notice to the defendant.
    The answer denied the presentment, demand, and notice, the receipt of proper notices, and all indebtedness of the defendant upon the notes. The answer also averred, that prior to commencement of this suit, separate actions upon the several notes, in favor of the plaintiff, against the defendant, had been commenced in the circuit court of the United States, for the district of Michigan, which actions were pending and undetermined ; and that at the commencement of such suits, the plaintiff was a resident of the state of New York, and the defendant of the state of Michigan, and that said circuit court had full jurisdiction of the actions so commenced,
    The reply stated, that since the commencement of the present action, the suits in the circuit court of Michigan, were duly discontinued and dismissed, and were no longer pending.
    The cause came on for trial before Mr. Justice Paine, and a jury, on the 23d and 24th days of June, 1851.
    Upon the trial, the plaintiff produced and read in evidence, the notes mentioned in the complaint. The plaintiff then proved, by the testimony of a notary public, that each of the notes, on the day when it became payable, (being severally the 5th day of January, February, March, and April, 1850), were presented at the bank of New York, in the city of New York, and payment thereof demanded, of the teller, which was refused, and that on the following morning, (except the first case, when the following day was Sunday, and then on Monday morning next after-wards,) a notice signed by the notary public, was deposited in the New York post-office, addressed to the defendant at Detroit, Michigan. The notice in the case of the first note was as follows:—

      “ New York, Jan. 5th, 1850
    “ $740, and interest.
    “ Please to take notice that a promissory note, made by J. L. Carew, for $740, with interest, dated April 2d, 1849, endorsed by you, was on the day that the same became due, duly protested for non-payment, and that the holders look to you for the payment thereof. “Your obedient servant,
    “ John T. Irving,
    “Notary Public, Mechanics Bank,
    “ Attorney & Counsellor,
    “No. 7 Nassau street.
    “ W. L. Litchfield,
    “Detroit, Michigan.
    “Post mark, New York, 7th Jan., 10 cents.
    (“ Superscription,) Mr. E. C. Litchfield,
    “ Detroit, Michigan.”
    Similar notices were sent on the protests of the other notes.
    It was admitted that the defendant resided in Detroit, Michigan, at the date and endorsing of the notes, and until the time of the last notice ; and that the general residence of the maker of the notes was there during the same period.
    It further appeared in evidence, on the part of the plaintiff, that the notes in question, endorsed by defendant, were received in the month of April, 1849, in a letter from the maker, by a merchant residing in this city, with instructions to hand them over to Mr. Ryckman, upon his giving a receipt in full for the same, which was accordingly done, at the office of Ryckman, in New York ; that Ryckman resided in the city at that time, and transacted business in Pearl street.
    The plaintiff then called Alexander W. Buel, Esq., a counsellor at law, of the state of Michigan, for the purpose of showing that one or two recent decisions of the state courts of that state, as to what was required in a notice of protest in order to make it a sufficient notice of dishonor, were not followed in the federal court in Michigan. This evidence was objected to, and taken subject to objection.
    Mr. Buel testified that the decisions in the state courts referred to, and which were relied on by defendant, were not followed in their full extent, by the federal court, but that the latter held that it was not necessary to state, in the notice, that the holder looked to the party for satisfaction—that he had no recollection, however, of any interpretation being given by the circuit court to the words in a notice, which state that the note was protested. Mr. Buel further stated that the decision in the state court was founded on general commercial law, not on any statute or usage.
    After proof of the discontinuance of the suits in the circuit court, the plaintiff rested. The defendant then introduced in evidence, the reports of two cases adjudged in the supreme court of Michigan, to wit, the case of Platt v. Drake, decided January term, 1844, and reported in 1 Douglass’s Reports, 296, in which it was held, that notice to an endorser of a promissory note; that the note “ has been protested for non-payment, and that the holders look to him for payment of the same,” is not a sufficient notice of dishonor. Such notice must contain words, directly or by necessary construction, showing that the note has been presented for payment, and payment refused.
    “ A protest is a formal instrument, made by a notary public, alleging the due presentment and dishonor of a bill, and declaring that the notary protests the same for non-acceptance, or non-payment, as the case may be ; and the statement that a bill or note has been protested, refers rather to the making, by a notary, of the instrument denominated a protest, than to the act which might authorize such protest to be made.”
    “ No protest of a promissory note is necessary.”
    “ The sufficiency itself, of a written notice of dishonor, is to be determined by the court as matter of law.”
    Also the case of Spies v. Newberry, decided January term, 1847, and reported in 2 Douglass’s Reports, 425, in which it was held that “ notice to the endorser of a foreign bill of exchange, that the bill, describing it, has been protested for nonpayment, and that the holder looks to him for payment thereof, is a sufficient notice of dishonor ; the term protested, when thus used, implying that payment had been demanded and refused.” No other evidence was offered by either party.
    The defendant’s counsel then moved that the complaint be dismissed, on the ground that no sufficient notices of presentment, demand, and dishonor of the notes, to charge the defendant as endorser, had been proved. That the notices did not set forth, nor describe the notes with certainty, nor distinguish between the different notes, nor show where the presentment or demand was made, nor that the same was made at all, and that the endorser was not charged because the notices were insufficient, by the laws of the state of Michigan, as well as because they were not sufficient, by the laws of New York. The court refused to non-suit, and directed the jury to find a general verdict for the plaintiff, for the amount of the four notes.
    A verdict was accordingly entered for the plaintiff for three thousand four hundred and twenty-one dollars and fifty-nine cents, being the amount of the notes and interest.

      Charles Tracy, for the appellant, argued the following points:
    I. The notices sent to the defendant were insufficient to charge him as endorser, according to the laws of the State of New York. (1.) They do not describe the respective notes with certainty, nor distinguish between the four notes of different periods, and maturing at different times (1 Comstock, 413, Cayuga Co. Bank v. Warden. (2.) They do not state when or where the presentment or demand took place (4 Denio, 163, Wynn v. Alden). (3.) It is the province of the court to determine the question of the sufficiency of the notice on its face (23 Wendell, 620, Remer v. Downer, p. 626; 2 Hill, 587, Ransom v. Mack, p. 595; 5 Barbour, 490, Dole v. Gold).

    These notices, being mere notices ‘of protest, were for 'that additional reason insufficient to charge the endorser according to the laws of the state of Michigan. (1.) Such is the adjudged law in that state (1 Douglass, 296, Platt v. Drake; 2 Douglass, 425, Spies v. Newberry; Code of Procedure, § 426). (2.) The decisions of the federal court, sitting in Michigan, do not depart from the rule of the state courts, in respect to the point here involved. (3.) Nor would the dissent of the federal court from a rule of law settled by the supreme court of law of. the state, be any evidence that the law of the state was other than what the state courts had so determined.
    III. The contract of endorsement was made in Michigan, and must be interpreted and performed according to the law prevailing there. (1.) The notes were endorsed at Detroit. This appears from the evidence: the notes were dated there, the maker and endorser resided there at the time, the notes were put in the mail at thát place, in a letter written there, and the receipt for the notes was returned to the same place (8 Wend. 600, Pinkerton v. Bailey). (2.) Notwithstanding that the notes were made payable in the city of New York, the contract of the endorser was made at Detroit, and is governed by the laws of Michigan (12 J. R. 142, Hicks v. Brown; 12 Wendell, 439, Aymar v. Shelden, pp. 443, 444; 22 Wendell, 215, Allen v. Merchants’ Bank, pp. 222, 225, 239; 2 Hill, 227, Bank of Rochester v. Grey; Story on Prom. Notes, 404, § 339, Nt. 3, p. 406; 7 Alabama, 120, Lowry’s Adm. v. Western Bank of Georgia; 1 Alabama, 527, Dunn v. Adams; 2 Kelly, 158, Cox v. Adams; 3 McLean, 397, Dundas v. Bowler, p. 390; 4 Devereux, 122, Hatcher v. Marine; 12 New Hampshire, 49 Dow v. Russell; 5 Blackford, 240, Yeatman v. Cullen; 2 Scammon, 465, Holbrook v. Vibbard; 2 Sandf. S. C. R. 171, Carroll v. Upton; 4 Cowen, 508, Andrews v. Herriot; 13 Com. 249, Loan Co. v. Towner; 2 Beavan, 282, Cooper v. Earl of Waldegrave; 1 Barn. and Adol. 284, De la Vega v. Vianna; 1 Bing. N. C. 151, Trimbey v. Vignier; 2 Mylne and Kean, 513, Anstruther v. Adair; 1 Penn. St. Rep. 381, Watson v. Brewster; 6 Cranch, 221, Slocum v. Pomery; Chitty on Bills, 507 (Marg. Ed. 1836, by Beebe). (3.) The contract of the endorser not being written out, is to be supplied and expressed according to the lex loci contractus.

    An endorsement in Michigan, therefore, is to be filled up with a promise by the endorser to pay the note, on condition that it is duly presented at maturity, and payment demanded, and is then dishonored by the maker, and that a notice describing the note, and stating that such presentment and demand have been made at the proper time and place, and the note was dishonored by the maker, is sent to the endorser. It cannot be filled up with a condition that the notice, inside, instead of stating such facts, may merely state that the note was “ duly protested for non-payment ” (7 Hill, 416, Hall v. Newcomb; 2 Hill, 80, Seabury v. Hungerford).

      IV. The prior suits in the U. S. circuit court in Michigan, are a defence in this action. (1.) The code of procedure (§ 144, sub. 3, and § 147), makes no distinction between the courts of this state and those of other states or the United States. The terms used indicate an intention to do away the old rule, by which the pendency of a prior suit in the U. S. circuit court was not pleadable (12 Johnson, 99, Walsh v. Durkin). (2.) The plaintiff, having placed the issue on a discontinuance of the former suits after the bringing of this action, was bound to establish his reply. '(3.) The defendant’s mere declarations were inadmissible to prove the discontinuance of those suits (p. 16, f. 44), and no other evidence on that point having been given, the reply was not sustained (6 Johnson, 9, Jenner v. Joliffe; 10 Johnson, 248, Hasbrouck v. Baker; 8 Wendell, 480, Welland Canal Co. v. Hathaway).

      William Curtis Noyes, for respondent, argued the following points:
    I. There is no objection to the judgment on account of the pendency of the suit in the U. S. circuit court, for Michigan (Code, §§ 144, 147). (1.) The pendency of another action in such court is no objection to this action in our own court, even if the foreign action had not been discontinued (Mitchell v. Bunch, 2 Paige, 620; Burrows v. Miller & Miller, 5 Pr. Rep. 51; Browne v. Joy, 9 Johns. 221; Walch v. Durkin, 12 Johns. 99). (2.) The discontinuance of that action before trial in this, (if properly proved,) removes all question. (3.) The discontinuance of that action was properly proven by parol (Foster v. Trull, 12 Johns. 456; Cow. & Hill’s notes, 1074, 1076).
    II. The nqtices of dishonor were sufficient by the law of New York. (1.) It was enough to state that the notes were protested (Coddington v. Davis, 3 Denio, 25; Cayuga Co. Bank v. Warden, 1 Cornst. 414). (2.) There was no misdescription, and there was a sufficient description to identify each note as it became due. (3.) The sufficiency of the notices upon their face is a question of law, Ransom & Ransom v. Mack, 2 Hill, 587; Dole v. Gold, 5 Barb. 490; McKnight v. Lewis, 5 Barb. 685; Wynn v. Alden, 4 Denio, 164; Cayuga Co. Bank v. Warden, 1 Comst. 414).

      III. The decisions in New York should control as to the sufficiency of the notice, because, (1.) There is no decision nor principle requiring that the form of the notice to charge an endorser is to be governed by the law of the place where the endorsement was consummated (Story on Bills, § 391,156-157,176-177, and note, Carroll v. Upton, 2d Sand. Sup. Ct. 172). (2.) This was in truth a Mew York contract, because, 1st. The contract on which the notes were to be delivered was made and to be performed here, and was actually performed here. 2d. The endorsement was delivered here, and never became effective as an endorsement until such delivery. 3d. The money was payable and the endorsed contract was to be performed here. 4th. So the condition, upon performing which the endorser became bound, viz. the use of due diligence to give him notice of the dishonor of the notes, was to be performed here by the holder (Pothier on Obli., Pt, 1., Ch. 1. § 1. Art. 2; Grotius lib. 2. Ch. 2; Chitty on Contr. 12 (5 Am., from 3d Lon. Ed.); Rutledge v. Grant, 15 E. C. L. R. 99; Mactier v. Frith, 6 Wend. 103, 113, 114, 139; Cox v. Tracy, 7 E. C. L. R. 163; Cox v. The United States, 6 Peters, 171; Adams v. Jones, 40 E. C. L. R. 189; Duncan v. United States, 7 Peters, 448, 449; Bank of Augusta v. Earle, 13 Id. 532, per Sargeant arguendo.

    IV. If this contract be viewed as made in Michigan, and if the law of Michigan is to govern it, then it is insisted that the decision of Platt v. Drake, is not a sound and reliable exposition of the true rule of commercial law. (1.) It does not rest upon statute. (2.) It was an innovation upon the former course of decisions, and is even now anomalous. (3.) It is unreasonable in itself.
   By the Court.

Duer, J.

—It is not necessary to deny that the liability of an endorser is governed, in all cases, by the law of the place where the endorsement is made, provided we understand by endorsement, the contract itself, not the mere act of writing the name upon the back of the instrument; and such, we cannot doubt, is the meaning of the rule. The liability of an endorser arises solely from his contract, and it is his contract that the local law defines, and controls. It matters not, when or where his name may have been endorsed, literally speaking, since there is no endorsement, binding him as a contract, of the promissory note, or bill of exchange, on which his name appears, until it is transferred to a third person, with the intent of enabling him to enforce its payment. The place of this effectual transfer, is, therefore, the place of the contract, and the law which there prevails, that which governs its construction. In this case, there Avas no transfer of the promissory notes upon which the action is founded, at Detroit; so long as they remained there, there Avas no contract creating any liability on the part of the defendant. There was no transfer of the notes, until they arrived in this city ; no contract, until they were accepted here by Ryckman, the first endorser, in satisfaction of a debt. It is plain that the defendant was an accommodation endorser’, and when he returned the notes, Avith his name, to the maker, as no restriction was imposed, he gave him an unlimited authority to use them for any purpose that his convenience and interest might require. In judgment of law, therefore, it Avas by the authority, and with the consent of the defendant, that the notes Avere passed into the hands of Ryckman, and the agent Avho made the transfer Avas his agent, as avcII as of the maker. As qui facit per alium facit per se, the endorsement, as a contract, Avas just as certainly made in this city, as if the transfer Avhich gave a title, had been made here, by the defendant in person. Hence, it is needless to inquire, whether the notices sent to the defendant, Avere sufficient to charge him as an endorser, according to the laAV of Michigan, as lately expounded by its supreme court, since the law of this state, not that of Michigan, is the “ lex loci contractusthat we are bound to follow.

Adopting then our own law, as the rule of decision, it seems to us, that the right of the plaintiff, to maintain this action, cannot reasonably be doubted. We deem it quite unnecessary to cite authorities, to prove that, in this state, the laAV is settled, that every notice to an endorser must be deemed sufficient, which expressly, or by a reasonable intendment, conveys to his mind all the information that he is entitled to have; and that where no doubts are raised by extrinsic facts, the question of its sufficiency is to be determined exclusively by the court. Where there are no disputed facts, it is purely a question of law.

• The information, which, in an action against the endorser, it must be proved, was given, is that of the dishonor of the particular note upon which the action is founded. The notice of protest must therefore contain such a description of the note, as might have enabled the endorser to ascertain its identity, and must also communicate the fact of its dishonor ; that is, that on the day when it fell due, payment was demanded and refused.

We are to inquire then, whether these requisites are found in the notices that were given in evidence upon the trial; and for the present, we coniine our remarks to the notice relating to the first of the four notes that fell due—that payable nine months after date. The description of the note, it must be admitted, is not complete, since it omitted to state the time when, and the place where, it was payable; but these omissions are quite immaterial, if the facts, which are stated, are alone sufficient, to convey all the necessary information. It is not to a stranger, it must be remembered, that the notice is addressed, but to a person, whom the law presumes to have had a distinct recollection of the tenor of every note, then outstanding, which he had endorsed, and the question is, whether, with this knowledge, he could have experienced any difficulty in referring the notice to the particular note that was intended. The notice states, expressly, the date of the note, the name of the maker, the sum for which it was given, and that it bore interest, and by implication, that it was payable in this city, since it was from this city that the notice of its protest was sent; and in all these particulars, the notice corresponds exactly with the note in evidence, and which the defendant knew he had endorsed. Hence, unless the defendant had endorsed other notes, one or more dated on the same day, for the same maker, for the same sum, payable with interest, in this city, and at the same time, it is impossible, that even a momentary doubt could have been entertained by him, as to the particular note that the notice described. He knew, at once, that it was the note in suit, if there was no other to which this description could possibly apply.

These observations are not answered by saying, that the defendants muy have endorsed other notes of the like tenor, and that an uncertainty in the application of the notice, may thus have arisen. We have no right to act upon such a presumption. If such was the fact, it was in the power of the defendant to-prove it, and it was upon Mm that the law cast the burden of proof. As the proof has not been given, the maxim applies that “ de non apparentibus et non existentibus, eadem est ratio.”

In the case of Shelton v. Braithwaite (7 Mees. & Wels. 436), the notice of the dishonor of an inland bill of exchange, given by the holder to the drawer, contained no other description of the ■bill, than this, “your draft on A. B.'is dishonored,” yet-the judges of the exchequer were unanimously of opinion, that the notice, taking into consideration the previous knowledge of the defendant, was sufficient to charge him. . The ground of the decision was, that when an uncertainty in the application of a notice, arising from extrinsic facts, is alleged to exist, the burden of proof lies upon the defendant; the existence of such facts will never be presumed. In the particular case, it was said by Baron Alderson, and similar remarks were made by the other judges, that if the defendant had drawn any other bill upon A. B., which was then outstanding, the fact and the means of proving it, were peculiarly within his knowledge, and it was by him that the proof ought to have been given. In the absence of contradictory proof, it was a reasonable inference that there was no other bill, than that declared on, to which the description in the notice, could apply. This decision was followed in the same court, in Stockman v. Parr (11 Mees & Wels. p. —), and both these cases are cited with approbation, by Mr. Justice Jewett, in delivering the judgment of the court of appeals, in the case of the Cayuga Bank v. Worden, (1 Comst. 414.)

The other objections to the sufficiency of the notice, that it states neither the day, nor the place, of a demand of payment, nor indeed, that such a demand was made at all, will be disposed of in few words. As the defendant must have known that the notice related to the first of these notes that fell due, we are bound to say, that he also knew on what day and at what place it was payable ; and an express communication of' these fa.cts, was, therefore, useless. And that a demand of payment was made on the proper day, and at the proper place, and was refused, are facts, which by a necessary implication, were communicated by the declaration, that the note “ was, on the day that the same became due, duly protested for non-payment.” It is true, that a protest of a promissory note, is not, like that of a foreign bill of exchange, necessary to be made, in order to charge an endorser ; but it is equally so, that in all cases, where it is made, it not merely implies, but asserts, the existence of the facts, up on which alone it can properly be founded. A protest is a declaration in writing, made by a public officer, under his oath of office, that the bill or note to which it relates, was, on the day it became due, duly presented for payment, and that payment was refused ; and a notice of such protest, is not merely a notice that this declaration was made, but that the facts, so declared, had really occurred.

That such is the construction of the .no lice, when it relates to the protest of a bill of exchange, is not denied, and we own, that we are at a loss to understand, why the same construction should not be given to it, when it relates to the protest of a promissory note. That in the last case, a protest is unnecessary, neither alters the nature of the act performed, nor the intent and object of its communication to an endorser. When he is told that the note is protested, he is told, in language which he is bound to understand, that it is dishonored, for it is this sense that the usage of all' engaged in commerce has stamped upon the words. The decision of the supreme court of Michigan, in Platt v. Drake, (1 Doug. 296,) which we have been urged to follow, is directly opposed to that of the supreme court of the United States, in Mills v. Bank of the United States (11 Wheat. 431), and in our own courts, the language of judges, we believe, has uniformly been, that notice of the protest of a promissory note, is equivalent to notice of its dishonor. At any rate, it is this construction, that we consider as established beyond the reach of further question, by recent decisions in the court of appeals. (Coddington v. Davis, 1 Comst. 36; Cayuga Bank v. Worden, id. 414.)

The observations that have been made to prove the sufficiency of the first notice, apply with equal force to each that follows. They are all expressed in the same words, and each of them bears date on the day when the note to which it refers became due ; nor can we doubt that, in each case, the note, thus arrived at maturity, was understood by the defendant to be the note dishonored. That he was, in fact, misled, is most improbable that he ought not to have been misled, is quite certain.

The last objection to the plaintiff's recovery, the pendency of a prior suit for the saíne cause of action, in the circuit court of the United States in Michigan, we should not have hesitated to overrule, even had no evidence been given of the discontinuance of the suit. The provisions of the codp have not altered the rule of law that the pending of such a suit in a court of the United States, or of a sister state, is no defence. (Brown v. Jay, 9 John. 221; Walch v. Durkin, 12 John. 99.) Those provisions relate only to the mode of stating the pendency of a prior action, in those cases in which the defence may be legally admitted. The design of the code was to change the rules and forms of pleading, not the rules of law, or evidence ; nor should a construction, by which a change of this character may be effected, ever be given to its provisions, unless, where the language is so explicit, as to admit no other interpretation. The same question arose, and was decided as we now decide it, in the case of Burrows v. Miller (5 How. Pr. R. 51), and the reasoning of the learned judge who made that decision, commands our entire assent.

The judgment of the special term is affirmed with costs.


source: Caselaw Access Project

author: Sandford, J.

license: Public Domain

text:
    James W. Phillips, Respondent, v. Horace Wright, and Freeman Hiscox, Appellants.
    The builder of a vessel, -which is in the progress of construction, is presumptively the owner.
    The presumption is not rebutted merely by proof that he was building the vessel, under a contract, in writing, for another person.
    To enable the court to judge of the relation between the parties, under the contract, the instrument must be produced.
    To give effect to the statutory lien, in favor of those who furnish materials towards the building of a ship, or vessel, it'is not necessary that the vessel shall be completely finished and equipped.
    The lien attaches as soon as the structure, although still on the stocks, assumes the form or shape of a vessel.

      The lien of a material man, is not affected by the fact, that he did not rely exclu sively upon the lien, but looked also to the personal credit of the builder or owner, and considered him as his debtor.
    To create the Hen, however, it is not sufficient to prove, that the materials were purchased for the declared purpose of being used in the building of the vessel. Their positive application to the intended use must be shown.
    The whole theory of a lien for labor and materials, rests upon the basis that they have entered into, and contributed to the production or equipment of the thing, upon which the lien is imposed.
    When it appears that all the materials, in respect to the cost of which, the lien is claimed, were not applied to the building of the vessel, the burden of proving what portion of them was so applied, rests upon the material man.
    Upon the ground that this necessary proof had not been given, judgment, at special term, in favor of the plaintiff reversed, and the report of a referee, upon which it was founded, set aside.
    (Before Oakley, Cu. J., Sandford and Duer, J. J.)
    (Nov. 24, 1851 ;
    Jan. 10, 1852.)
    . This was an appeal, by the defendants, from a judgment for the plaintiffs, rendered at a special term, upon the report of a referee.
    The action was for a breach of the condition of a bond, given by the defendants to the plaintiff, in order to discharge an unnamed and unfinished ship or vessel, from a warrant of attachment, issued undér the provisions of the revised statutes (2 R. S. part 3, chap. 8, title 8). The breach assigned, was that the defendants had refused to pay certain debts due to the plaintiff, which were a subsisting lien upon the vessel, when the attachment was issued. The complaint charged, that the debts in question, were contracted by Joseph Bishop and Jeremiah Simonson, ship builders, under the firm of Bishop & Simonson, and were due to the plaintiff for certain materials and articles, furnished by him towards the building of the vessel attached, of which the said Bishop & Simonson, were averred to be the owners. It then set forth the issuing of the attachment, upon the plaintiff's application, and the bond for discharging it, executed by the defendants, and after assigning the breach of its condition, demanded payment, for $458 27, with interest.
    The ansjver denied that Bishop & Simonson were the owners of the vessel attached, and averred that the title, when the material or articles in respect to which the lien was claimed were furnished, was in an association called the Mechanics’ Mining Association. It denied that these materials and articles were delivered to he used and employed in and towards the building of the vessel, and averred that they were sold and delivered to Bishop & Simonson generally, and upon their personal credit, and without any view to the reservation of a lien. It also averred that the plaintiff had received from Bishop & Simon-son their draft, or check, in full payment of his claims.
    The reply took issue upon the alleged payment, and averred that the materials and articles furnished by the plaintiff were delivered to be used and employed in and towards the building of the vessel, and were, in fact, so used and employed.

      Upon these pleadings an order was made by consent, referring the cause to Alexander S. Johnson, Esq.,  as sole referee.
    The referee, in April, 1851, made the following
    REPORT.
    The undersigned, to whom, by an order of this court, bearing date on the seventh day of June, eighteen hundred and fifty, this action was referred to be heard and determined, respectfully reports: that in addition to the facts admitted by the pleadings in this cause, he, in deciding and determining the said cause, found the following facts, and decided the questions of law, hereinafter stated, in the manner hereinafter mentioned, viz:—
    That Bishop and Simonson were the owners of the ship “Mechanics’ Own” at the time of the several purchases of timber in the complaint mentioned; that being such owners, they purchased within this state of the plaintiff for cash, the two bills of timber, in the complaint mentioned, at the times, and for the prices therein mentioned; that the said two bills of timber were purchased by said Bishop and Simonson and furnished by the plaintiff to them within this state, as materials for or towards the building of the said ship, and were delivered at the yard where the said ship was building.
    That no credit was given to said Bishop and Simonson for the price of said timber, and that the price still remains wholly unpaid. That some part of the said timber was not in fact actually employed in the building of the said ship, but was applied by Bishop and Simonson to other purposes.
    That the plaintiff did not in any manner assent to such use of said timber as is last mentioned, nor was he aware thereof; that the plaintiff had not in any way given time of payment to Bishop and Simonson, nor in any manner waived or discharged his right of lien upon said vessel.
    Upon the foregoing facts, the undersigned held as matter of law, that the claim or demand of the plaintiff for' the whole price of the said two bills of timber was a subsisting lien upon said vessel, pursuant to the provisions of Part 3, Chap. 8, Title 8, of the Revised Statutes, at the time, the said claim or demand was exhibited, in pursuance of the said provisions of the revised statutes, to the officer who issued the warrant in the complaint mentioned.
    The undersigned further reports, that in the progress of the said trial, he made several decisions upon questions of evidence, and a decision upon a motion for a non-suit, -which decisions necessarily require the statement of the testimony had before him upon the said trial, in order to present them for examination ; and that the said testimony and the said decisions are correctly stated in the cape hereunto annexed, and which is made part of this report.
    New York, April 8,1851.
    Alexander S. Johnson.

      Referee.

    CASE.
    This was an action upon contract brought, to trial, before Alexander S. Johnson, sole referee, on the 11th day of December, 1850. The ■ pleadings are to be deemed a part of the case.
    Plaintiff’s counsel produced, and read in evidence, the bond mentioned in the complaint, and called Philip Bennett, who was sworn and testified as follows :—
    I know the plaintiff and Bishop and Simonson. I knew them in February and March, 1849. I inspected all the timber that came to the plaintiff, and sold it. It is cedar timber; the yards for it were in Cherry and Henry streets." Bishop and Simonson were ship-builders then ; .their yard adjoined Mr. Webb’s between Lewis, 5th and 6th streets, and East River. There was a ship about being built in their yard, at that time not commenced. Bishop and Simonson came to me to buy cedar, and I sold them a bill on the 14th of February, 1849, of $330 53. I understood from the person who purchased the timber, it was to build a ship for the Mechanics’ Mining Association. I understood it was to be called “The Mechanics’ Own.” Whether it was Bishop or Allaire his clerk who came when the first bill was sold, I can’t remember. March 2d. Bishop himself came and purchased a bill of $127 74. I asked Bishop how he was getting along with the ship; he said he wanted some larger logs to finish up the frame. The person who made the first purchase told me the ship was for the gold country. Bishop and I talked about the shares in which she was to be owned or was owned. I was in the yard frequently. I saw her a dozen times while she was building. I saw the men chopping up the timber bought of the plaintiff to go into the frame, and I saw it in the frame. Cedar is used for the top timbers of a ship. I saw it used in this vessel—as in all others—for the top timbers. The Ohio had been built there, and we furnished timber for that ship. She was fit to launch, or nearly so, when this suit was commenced. She may have been launched, but I don’t precisely remember. The frame is the early part of building before planking. I can’t tell whether any other vessel was building or not in that. yard at that time. The terms of sale were for cash.

      Being cross-examined, witness testified as follows :—
    I had sold Bishop and Simonson before for two or three ships, I think. I know I sold them for the Ohio and this ship. I was the only person who sold any cedar or timber for Phillips to Bishop and Simonson. I sold them for the Ohio, and the “ Mechanics’ Own.” I am an inspector of timber. I make the sale and inspect the timber, and make a return to Phillips. He enters it on his books. I deliver the bill and he collects the money. I enter in my books so many logs sold. February 14, I sold Bishop and Simonson 69 logs. I delivered the timber to Bishop and Simonson ; having reported to Phillips that I had sold the timber. Then I made my returns to Mr. Phillips of the sales of the day, among which was this, “ sold Bishop and Simonson the amount of the bill,” &c. I had sold them once before. I am not sure as to more. The Ohio was all planked up before this ship was commenced. The Ohio may have been launched before this one was begun, but I cannot sa.y positively. I never saw any of this timber used in any other ship. I know none of it was used aboard the Ohio. For a vessel of this size I generally sell one hundred and fifty logs. I do not mean to say I saw all this timber in this ship. I can recognise this timber when I see it. I cannot say how many logs I saw, but I should think I saw about the same we sold—about the usual quantity. I can tell the difference between our timber and Florida and Texas timber with certainty. This is Tennessee cedar. I can tell Tennessee from Arkansas cedar. I never saw any bill made out by Phillips for-this timber.
    This paper is a copy of the bills from Phillips’ books, made for me, but not by me. Defendant offers it in evidence.

    The plaintiff here rested, and defendant moved for a nonsuit, on the ground that there was no proof of a subsisting lien on the vessel, as the proof showed the parties selling gave exclusive credit to Bishop & Simonson, and the sale was made to them in no capacity, either as master, owner, agent, or consignee, as required by the statute, and the mere fact that they being shipbuilders, were about building a ship for the Mechanics’ Mining Association, gave persons selling them no lien under this statute, so none was given by Bishop & Simonson to the plaintiff, nor did he intend to reserve the lien on any vessel. That plaintiff’s books make no mention of any vessel, but only charge the articles to Bishop & Simonson individually, and the idea of any lien was an after thought. The referee, however, refused to nonsuit, to which decision the defendants excepted.
    The defendants’ counsel then called

      Robert TL Allaire, who was sworn, and testified as follows: In February and March, 1849,1 was clerk for Bishop & Simon-son, and had been for some time. I don’t know plaintiff. I know last witness. I know of Bishop & Simonson buying cedar logs of Bermet, half-a-dozen times, I suppose at Phillips’ yard. I did not purchase any of this timber. I have an indistinct recollection of helping pick out the timber. I have done so several times, but whether in this case I can’t say po.-itively. We had the Mechanics’ Own on the stocks building, and no other vessel at that time, and I think we were repairing the Isthmus in the yard, and other vessels along the shore, not in the yard. We sent timber from the yard for repairs of vessels not at the yard. These bills were furnished to us from Phillips, and this is the receipt:
    “Rec’d, New York, 24 March, 1849, from Messrs. Bishop & Simonson, four 'hundred and fifty-eight 27-100 dolls, in .full for bills cedar of 14 ult. and 2d inst.

      New York, February 14,1849.
    Messrs. Bishop & Simonson
    Bot. of James W. Phillips,
    44 Logs Cedar, meas. 212 ft. 10 in., at 45c., $122 18 25 “ 11 “ 211 ft, at 15c., 201 15 $330 53
    Defendants’ counsel then offered to show previous transactions between Bishop & Simonson and James W. Phillips, and what those transactions were, and that this transaction as to the purchase, credit, manner and time of payment, was no other or differdlit from any previous transaction.
    The plaintiff’s counsel thereupon objected to the proof so offered, and the referee excluded the same, and the defendants’ counsel excepted.
    The witness then further testified as follows: A check was given, dated 5th April. Bishop had not the money to give him. Young Phillips came, the one who came with the bill. He had been there before, and had seen him sign as' in this case.
    The bills had been left some time before. He found Bishop at last, and said he wanted it settled in some shape. Bishop said he had not the money to give him. He asked him to give him a due bill that could be-settled down town. Bishop said he would give him a check dated ten days ahead. The check was taken, and the receipt given. All this timber was not used on the Mechanics’ Own. Some of it was too small, and the second lot had to be bought.
    There was some of this timber sold by Bishop & Simonson’s assignees, and not used on board of this vessel at all. Some of the cedar that was left from the Ohio was used on board of this vessel and helped to make it up.

      On his Cross-Examination, he stated : That, Bishop & Simon-son failed about April 1st, 1849. The keel of the vessel was laid in November, 1848, perhaps later. She was launched the latter part of May, or first of June. When bill was presented, nothing was said about ihe lien on the vessel, the demand was made only against Bishop & Simonson.

      Joseph Bishop was then sworn on the part of the defendants, and testified as follows :—
    I am of the firm of Bishop & Simonson, named in the pleadings. I purchased cedar of plaintiif, for my firm, on the 14th February, and 2d March, 1849. The articles charged in the bills marked 3 and 4, are of the same description as what I purchased, and the bills are for the articles purchased. I made the bargain with Mr. Bennet. I asked him the price of cedar timber of certain sizes, and got his answer, and engaged to take what we should require for a vessel which we were about to build. These things were bought upon our own credit, no credit was given to any one else. The principal part of the timber was used in the Mechanics’ Own. As to the quantity, I told him as near as I could judge, and we were to take as many as we wanted, and as we wanted them, within or about the range of the quantity spoken of. The bills made out were sent us, and are there marked 3 and 4. Phillips took a check dated some days ahead, and gave the receipt. I don’t know when the ship was named. She was called in the yard Mechanics’ Own, at an early stage, but I don’t know at what time.

      Being Cross-Examined, the witness testified as follows :—
    We had no other vessel in the yard for which we had occasion to buy cedar at the time of this purchase. We were not building any other. Her keel was 'laid about the date of the first of the bills, but I think a little after. We failed entirely, I think some time after the check fell due. I don’t know when we made an assignment. I think it was in April. We were to take the timber as we should want it and send for it. He was to select out certain sized timber and put it in a pile. The only use for which we wanted it was for the vessel. The statement to him was made that we might get it without delay when we sent for it. The vessel I speak of is the one attached in this suit.

      Being Re-Examined by defendants’ counsel, the witness testified as follows:—
    I did not consider we were bound to put this timber to any particular use. There was some of this tiniber sold at auction when our things were sold under the assignment. I attended to the out-door business. My partner and Allaire attended to the yard more. I know nothing about the size of the timber being inappropriate.
    It was then admitted that the check to Phillips was never paid.
    The witness Allaire, was then recalled for defendants, and testified as follows :—
    The amount of the indebtedness of Bishop & Simonson when they failed, to the Mechanics' Association, was either $1,200 or $1,800. I got once $700 of Wright, and once $500. Wright is the defendant, and was treasurer. The ship in question was built for the Mechanics’ Mining Association. She was built by Bishop & Simonson, under the superintendence of a committee of the Association. Bishop & Simonson made a contract with a committee of the Association, in relation to the building for the Mechanics’ Mining Association, a ship of certain dimensions, &c., for a certain price. It was in writing, under seal. Hiscox is President, and Wright is Treasurer, or they were, of the Mechanics’ Mining Association.
    Defendants then offered to prove at whose instance the bond in suit was given. Plaintiff’s counsel objected to the question, and it was excluded by the referee, and the defendants excepted.
    The witness then further testified as follows :
    The sheriff seized the vessel, about the 12t,h of April, 1850. I knew it at the time. The Mechanics' Mining Association were in possession at that time completing the vessel. The Board of Superintendents of the Association were in possession. When attached she was over three-fourths completed, when the attachment was issued.
    Being Cross-Examined, the witness testified as follows :
    The Mechanics’ Mining Association was composed of about one hundred men. They had an article of association, but were not incorporated. They were in writing and printed. One copy was signed and sealed, and put in the register's office. Two copies were executed, one was to be deposited as aforesaid, and the other was retained by the officers of the Association. When Bishop & Simonson failed, the Association took the ship and went to work- finishing her.; in fact they were in possession of her before, for they were putting other work in her. There W.ere four superintendents, Wright, Lugar, Rowland, and I think William Bennet, and Hiscox, I rather think too. Some of the five were at work, and Rowland was actually at work, and the others were superintending.
    Being Re-Examined, the witness further testified as follows :
    As soon as the vessel had progressed far enough—had her decks laid, and they could commence putting in her joiner of the cabin, which is. not the ship builder’s work, they did so.
    Being Re-Cross-Examined, the witness testified as follows :
    This working upon her was the way in which they had possession. Bishop & Simonson were going on with their work till they failed. She remained in the yard till it was bought and taken possession of by Webb—till she was launched.
    • The defence was here rested, and the plaintiffs called Orvill M. Phillips, who was sworn, and testified as follows :
    I am plaintiff’s brother, and was in his office all last year and am still. I presented these bills to Bishop & Simonson. (3 and 4.) I went repeatedly for the money. Each time payment was deferred temporarily. I received, finally, this check.

      “New York, April 5, 1849.
    “Cashier of The New York Dry Dock Company, corner of Avenue D and Tenth street.
    “ Pay James W. Phillips, or order, four hundred fifty-eight 27-100 dollars.
    “ $ 158 27-100. “ Bishop & Smoxsov.”
    And gave a receipt, of which I suppose this (the receipt above-contained) is a copy. On this or some previous occasion, a note or credit was spoken of by Bishop I think. He proposed a note, which I refused, as the sale was cash. I said so to him. The sale was made to him for cash, for the reason, that we would not have sold them on time.
    It- was - then admitted, by defendants' counsel', that the check was presented for payment, April 5,1849, and not paid, and has not yet been paid.
    Being Cross-Examined, this witness testified as follows :
    Those entries (contained in the bill marked 1), are, I believe, copies from plaintiff’s books of this transaction.

      It was then admitted, by defendants’ counsel, that the last deposit to the credit of Bishop & Simonson in the Dry Dock Company, was made January 16,1849, the last draft, January 29,1849, and that this left a balance of only about §>6.00.
    And thereupon the evidence was closed.
    And thereupon the referee reported that the plaintiff was entitled to judgment against the defendants, and assessed the plaintiff’s damages at five hundred and sixteen dollars, and thirty-five cents.
    In June term, 1851, this report was confirmed by the chief justice, and judgment for the plaintiff ordered thereon, with liberty to the defendants to appeal to the general term without security. The judgment including interest, and costs, was for $762 70. The appeal was now heard.

      H. S. Dodge, for defendants (appellants), made and argued the following points.
    The referee’s decision on the motion for a non-suit, -and on the whole evidence, was that Bishop & Simonson, having contracted to build the vessel for the Mechanics’ Association, were the “ owners ” of the materials until the completion and delivery of the vessel, and therefore could and did create a lien on the vessel, and in this he erred.
    I. The answer denies that Bishop & Simonson were the owners of the vessel, or agents, or that the demand against them was a subsisting lien on the vessel, and the onus lay upon the plaintiff, affirmatively, to prove that this debt was a lien. (Wakeman v. Newton, 21 Wend. 206.)
    II. The statute (2 R. S. 493) does not contemplate or create a lien upon materials for a ship, or upon an incomplete vessel, but on a complete ship, ready for use and capable of sailing from the port (Id. §§ 1,2,9,) and the “ owner,” in § 1, means the person who is, or is to become the “ owner” of the complete vessel, as distinguished from the builder or owner of the materials. And this has been so held in a case where the property in the materials did not pass until completion and acceptance. (Hubbell v. Denison, 20 Wend. 182; Van Pelt v. The Ohio, U. S. District Court, Judson, D. J.; Udall v. Ohio, same court (April, 1851), Betts, D. J.; Reed v. Hull of a New Brig, 1 Story C. C. R. 244; Harper v. a New Brig, Gilpin, 536, 540, 550).
    III. But in this case the evidence showed that the vessel was built for the association under their superintendence, and was in their possession, so as to belong to them as fast as completed, at the time the plaintiff’s demands accrued, and that Bishop & Simonson had been paid in advance. (Wood v. Russell, 5 B. and Ald. 942; Clark v. Spence, 4 Ad. and Ellis 448; Addison on Contracts, pp. 45 and 762.)
    IY. The materials furnished by the plaintiff were not furnished “ towards the building of this vessel.”
    1. The demands were not “ contracted for this vessel,” but the materials were furnished without any designation of their purpose, or reliance on the credit of the vessel. And the plaintiff ought to have been non-suited for this reason. (Van Pelt v. the Ohio, ubi supra, and the Statute, 2 R. S. 494, § 4.) And the referee erred in excluding the further evidence offered. (Ante, p. 352.)
    2. A part only of these materials went into this vessel. If the materials had been sold expressly for and charged to this vessel, the plaintiff could not have had a lien for the part not used in the vessel. (Udall v. the Ohio, ubi supra; Johnson v. the Sandusky, 5 Wend. 510; Crooke v. Stack, 20 Wend. 177; Veltman v. Thompson, 3 Comst. 438.)
    3. But in the present case the only evidence that the plaintiff furnished to show that the debt was “ contracted for this vessel,” was that some of them were used in this vessel.
    The plaintiff was bound to show affirmatively how much went into the vessel.
    Y. The plaintiff, if he ever had any lien, discharged it by looking to Bishop & Simonson’s individual credit, and giving them time by taking their post dated check. (Myers v. Welles, 5 Hill 463; Bailey v. Adams, 14 Wend. 201.)
    The judgment of the special term ought to be reversed with costs, and the referee’s report set aside.

      Wm. M. Evarts, for plaintiff, argued as follows :
    . I. The facts necessary to constitute a lien under the statute in this case, were (1,) that a debt of fifty dollars or more should have been contracted in this state by the owner of the vessel, (2,) on account of materials furnished in this state, for or towards building such vessel.
    These facts the referee found in favor of the lien, and in pursuance of the 18th section of the title referred to, reported for the amount of the plaintiff's claim (2 R. S. p. 496, § 18).
    II. That there was substantial evidence in support of these facts, appears on the face of the case; and there being such evidence, the court will not review the referee’s finding of matters of fact upon such evidence.
    III. The evidence fully sustains his finding of facts, and admits of no other result.
    IV. Bishop & Simons on buying materials in their own name, and upon their own liability, and therewith building a vessel, in their own yard, with their own labor, are, in law, owners of such vessel.
    That they were thus building such vesseljfor others upon contract is immaterial. If there existed a special contract, upon which the legal ownership of the vessel at the time, of these purchases from plaintiff could be brought into question, it should have been produced and proved. Such special quality or effect of the contract cannot be inferred (Abbott on Sh. p. 5; Laidler v. Burlinson, 2 M. & W. 602).
    Y. If the legal ownership of the vessel were in the purchaser or employer, yet the ship-builder in possession, buying materials for it, is to third persons in that behalf the agent of the owners, and a debt thus contracted by him, is contracted by the owners, his principals.
    YI. The fact of the non-application of a part of the materials bought for the vessel, to the building of the same, is immaterial. The furnishing of them for building the vessel is the foundation of the lien. The seller is not bound to look to their application, nor can the lien be impaired, by any subsequent act of the purchaser.
    If material, the defendants gave no evidence upon which any abatement, on this account, from the plaintiff's claim, could have been made by the referee.
    VII. Who was owner when the attachment was levied, or at any time subsequent to the contract, is immaterial; the lien ceases, or is divested, twelve days after the vessel’s leaving the port, or immediately after its leaving the state, and not from change of ownership (2 R. S. p. 493, § 2).
    VII. The giving of credit to the purchaser does not prevent nor supersede the lien. The terms of the statute import a personal liability, and add a lien from the nature of the consideration of such liability.
    Much less can a sale for cash impede or impair the lien.
    IX. The post-dated check, drawn upon a bank without funds, given to the plaintiff, was a mere sham or fraud, and no more discharged the lien than it satisfied the debt.
    X. The report of the referee should be confirmed, with costs.

       The pleadings are lucid and concise, and may be useful as a precedent. They are as follows:
      Complaint.—James W. Phillips, plaintiff in this action, by Butler & Evarts, his attorneys, complains of Freeman Hiscox and Horace Wright, residing in the city and county of Hew York, defendants herein, that on the fourteenth day of February, in the year one thousand eight hundred and forty-nine, Joseph Bishop and Jeremiah Simonson, who were then co-partners in the trade and business of shipbuilders, in the city of Hew York, under the name and firm of Bishop & Simon-son, and who were then, as this plaintiff is informed and believes, the owners of a certain unfinished and unnamed ship or vessel, then, and at the time of the application hereinafter mentioned, lying upon the stocks in the course of construction, in the ship yard occupied by the said Bishop & Simonson, on Lewis, Fifth and Sixth streets, and the East river, in the Eleventh Ward of the city of Hew York, contracted a debt with the said plaintiff, amounting to the sum of three hundred and thirty dollars and fifty-three cents, for certain materials or articles furnished by the said plaintiff, in this state, towards the building of the said ship or vessel, and that afterwards, and on the second day of March, in the year one thousand eight hundred and forty-nine, the said Bishop & Simonson—who then, also, as the plaintiff is informed and believes, were such co-partners ás aforesaid, and such owners of the said unfinished and unnamed ship or vessel, contracted a certain other debt with the said plaintiff, amounting to the sum of one hundred and twenty-seven dollars and seventy-four cents, for certain other materials or articles furnished by the said plaintiff, in this state, towards the building of the said ship or vessel; that the said materials or articles for which said debts were so contracted were certain cedar logs, furnished by the said plaintiff to and at the request of the said Bishop & Simonson, in the city of Hew York, at the times respectively hereinbefore stated, towards the building of the said ship or vessel, and that the amount of such debts, that is to say, the sum of four hundred and fifty-eight dollars and twenty-seven cents, together with interest thereon, was justly due to the said plaintiff, at the time of the application hereinafter mentioned.
      And the plaintiff further says, that having a lien upon the said ship or vessel, for the said sum of four hundred and fifty-eight dollars and twenty-seven cents, and interest thereon, he did heretofore, and on the twelfth day of April, in the year one thousand eight hundred and forty-nine, make application to Lewis II. Sand-ford, one of the justices of this court, pursuant to the provisions of the eighth title of the eighth chapter of the third part of the Revised Statutes of the State of Mew York, that such lien might be enforced, and that a warrant, pursuant to the aforesaid provisions of the revised statutes, might be issued to the sheriff of the city and county of Mew York, and that thereupon such warrant was issued by the said Lewis H. Sandford, one of the justices of this court, to the said sheriff, whereby the said sheriff was, among other things, commanded to attach, seize, and safely keep the said ship or vessel, her tackle, apparel, and furniture, to answer the said plaintiff’s lien, and all other liens that should be established against herj according to law:
      And the plaintiff further says, that the said sheriff did, in pursuance of the said warrant, attach and seize the said ship or vessel, and that afterwards, and on or about the sixteenth day of April, in the year one thousand eight hundred and forty-nine, the above named defendants applied to the said Lewis H. Sandford, such justice as aforesaid, for, and obtained an order to discharge the said warrant, and that thereupon the said defendants executed and delivered to the said Lewis H. Sand-ford, a bond to the said plaintiff, in the words following, that is to say:—
      “Know all men by these presents, That we, Freeman Hiscox and Horace Wright, of the city of Mew York, are held and ¿irmly bound unto James W. Phillips, in the sum of nine hundred and sixteen dollars and fifty-four cents, of lawful money of the United States of America, to be paid to the said James W. Phillips, his executors, administrators, or assigns. For which payment, well and truly to be made, we bind ourselves, our and each of our heirs, executors, and administrators, jointly and severally, firmly by these presents, sealed with our seals. Dated the sixteenth day of April, one thousand eight hundred and forty-nine. Whereas, the sheriff of the city and county of Mew York, has seized the ship or vessel, called an unfinished and unnamed ship or vessel, being upon the stocks, in the course of construction in ship yard, by virtue of a warrant of attachment issued on application of the above obligee: Mow the condition of the above obligation is such, that if the above bounden Freeman Hiscox and Horace Wright shall pay the amount of all such claims and demands as have been exhibited,

       Mow one of the judges of the court of appeals. which shall be established to have been subsisting liens upon the said vessel, pursua t. to the provisions of the eighth title of the eighth chapter of the third part of the revised statutes, then the above obligation to be void, else to remain in full force and virtue.
      “FREEMAN HISCOX, [l. s.]
      “HORACE WRIGHT, [ns.]
      “Sealed and delivered ) “in the presence of )
      “ W. K. Thorn.” .
      And the said plaintiff avers, that his aforesaid claim was a subsisting lien on the said ship or vessel, at the time of the exhibition thereof, as hereinbefore mentioned. Yet that the said defendants have not paid the same, or any part thereof.
      Wherefore, the plaintiff demands judgment against the said defendants for the sum of four hundred and fifty-eight dollars and twenty-seven cents, with interest upon three hundred and thirty dollars and fifty-three cents (parcel of said sum), from the fourteenth day of February, in the year one thousand eight hundred and forty-nine,'and upon one hundred and twenty-seven dollars and seventy-four cents (the remainder of the said sum), from the second day of March, in the same year.
      Answer.—The said Freeman Hiseox and Horace Wright, defendants in this action, by William K. Thorn, their attorney, for answer to the complaint of the said James W. Phillips, plaintiff in this action, say: That on the fourteenth day of February, in the year eighteen hundred and forty-nine, Joseph Bishop and Jeremiah Simonson, in said complaint named, were copartners, in the trade and business of ship builders, in the city of New York, under the name and firm of Bishop & Simonson. But these defendants deny that the said Bishop <& Simonson, were the owners of a certain unfinished and unnamed ship or vessel, lying upon the stocks, in the course of construction, in the ship yard, occupied by tl-e said Bishop & Simonson, as mentioned in the complaint in this cause, but that the same belonged to an association.
      These defendants admit, that the said Bishop <fc Simonson, may have contracted the debts, mentioned in the said plaintiff’s bill of complaint, for materials or articles furnished by the said plaintiff to the said Bishop & Simonson, but they deny that the said materials or articles were so delivered to be used and employed in, and towards the building or construction of said ship or vessel; and these defendants say that the said plaintiff had no lien of any kind upon the said unfinished ship or vessel, at the time of making the application mentioned, and particularly set forth in the said complaint That the said new hull then lay in the ship yard, in the city of Mew York, not finished, or ready for launching, but requiring a large expenditure of money to complete the same, and that the said Bishop & Simonson never were the owners, masters, agents, or consignees of the said hull or ship, but only the contractors for building such ship or vessel, for the said “The Mechanics’ Mining Association,” and no lien of any kind did attach to said hull of said vessel for anything furnished to them in any manner, as they are informed and believe.
      That these defendants deny, that the said materials or articles furnished by the said plaintiff, were furnished for the said hull of said new ship, but were sold and delivered by the said James W. Phillips,the plaintiff, to Bishop ¿Simonson generally and on their personal credit, and not with a view to reserving any lien, on the said hull or ship, and that the draft or check of the said firm of Bishop & Simonson, was taken and received by the said plaintiff, for the amount of the purchase money of said materials or articles, as a payment in full of his said claim.

        The reply of James W. Phillips, plaintiff, to the answer of the defendants in this action: The plaintiff denies, that the draft or check of Bishop & Simonson, mentioned in the said answer, was taken, or received by him as a payment, or in full of his claims for the materials or articles in the complaint mentioned, and he avers that the materials and articles furnished by said plaintiff towards the building of said ship or vessel, as in said complaint mentioned, were delivered to -be used and employed in, and towards the building and construction of said ship or vessel, and were, as he is informed and believes, so used, and employed.

   By the Court.

Sandford, J.

The proof that Bishop & Simonson built the vessel, established presumptively the fact, that they were her owners. The evidence that she was built by them, for the Mechanics’ Mining Association, under a contract, does not go far enough to rebut the presumption thus established. In the cases cited on this point, the contracts were produced, and the payments made from time to time to the builder, were fully shown. There is nothing in the evidence before us incompatible with the idea that Bishop & Simonson were to continue the owners of the hull of this vessel, until their work was completed, and the price fully paid. As we cannot anticipate what the case will be when the contract is introduced and evidence given of the payments made by the association, we forbear expressing any opinion as to the question Of ownership, beyond that already stated upon the facts as they now appear.

The defendants contend that the statute does not create a lien upon an incomplete or unfinished ship ; that she must be complete, ready for use, and capable of sailing from port, in order to be a ship or vessel, within the meaning of the act.

We cannot accede to this proposition. The occasion for enforcing a lien for work and materials towards the building of a vessel, arises quite as frequently before she is finished, as it does after that event, and a construction, limiting the lien to the case of vessels completed, would deprive of its benefit a large class of cases, as deserving of protection as any provided for in the act. Indeed, the effect would be to defeat the statute in respect of the building of vessels, for it would become a general practice, to transfer and remove a ship before she was finished, whenever the builder is likely to stop payment, or is embarrassed in his affairs.

The practice under the statute has long proceeded on the assumption that it contemplated unfinished, as well as complete, vessels ; and we believe that, in the ordinary use of the word, the term ship or vessel is applied, and properly applied, to the structure or frame, as soon as it assumes the shape or form of a ship or vessel. We hear the expression, ‘‘ a ship on the stocks,” constantly applied to ships, in all stages of their construction, and we think the statute intended to adopt the common meaning of the words used in it. Therefore, the fact that the ship in question was unfinished, when the attachment issued, does not affect the plaintiff’s claim for a lien under the act. .

The next ground of defence is, that the materials furnished by the plaintiff, were not furnished “ towards the building” of this vessel, but were furnished to Bishop & Simonson, generally, for their business, without any designation of their purpose, or reliance upon the credit of the vessel. Also, that a part only of his materials, went into this vessel.

As to the first branch of the objection, the referee has found that the timber, for which the plaintiff claims, was furnished by him to Bishop & Simonson, as materials for, or towards the building of this ship, and that no term of credit was given to Bishop & Simonson, for the price. The evidence fully sustains the fact, that the timber was furnished for this particular ship ; and, although, as in every case, the material man charged the price to Bishop & Simonson, looked to them for payment, and thus gave them credit for the same, this does not conflict with his also looking to the vessel, and relying uporn the statute lien as his security.

But it does appear, and so the referee states, that a part of tlie timber so furnished, was not used in this vessel ; some of it was sold by Bishop and Simonson’s assignees, and it is probable some went for the repair of other vessels. The plaintiff insists that this non-application of the timber to the building of this vessel, for which it was bought, is immaterial; that the statute confers the lien when it is sold and delivered for building- the vessel, without regard to its actual application for that purpose.

We do not think that this position is a sound one. The whole theory of a lien for labor and materials rests upon the basis, that such labor and materials have entered into, and contributed to the production or equipment of the thing upon which the lien is impressed. This imposes on the material man the necessity of seeing to it, that his materials are applied to the purpose for which they are procured, if he design to rely upon a lien given to him, by reason of such purpose. The laborer makes the application himself, and hence the difficulty does not extend to'hia case. If the law were, as the plaintiff contends, it would produce inextricable confusion. A ship builder, in doubtful credit, would buy lumber and materials sufficient for building a ship, from several distinct persons. He would buy them for a particular ship designated, and each material man would sell to' him “ for or towards the building” of that ship. He would sell some of the materials thus acquired, and use some in building or repairing other ships. Which of these material men is to have a lien ? Or are all entitled to a lien, amounting in the aggregate, to several times the value of the materials which actually entered into the construction of the ship ; thus, probably, totally displacing, or reducing to a small proportion, the lien of laborers, sail makers, &c., whose work and supplies were used in the building of the ship ?

It is very apparent that such an interpretation of the statute would lead to its complete defeat, as far as any praiseworthy object is to be effected by it.

Under the act of 1198, (1 R. L. 130,) which, among other things, gave a lien for supplies, furnished for, or towards the fitting, furnishing, or equipping of a ship or vessel, the late supreme court, in deciding that fuel supplied to a steamboat did not come within the act, placed it on the ground that the supplies contemplated by the act must be such as enter into the construction or equipment of a vessel, and become a part of her, as distinguished from such articles as are daily consumed, and constantly replaced. The court apparently assume that to constitute a lieu, the articles must, at all events, go into the vessel, or. be used in or about it, and not merely be furnished for that object, although used for some other purpose.

It may well be doubted, whether a literal interpretation of the words of the statute (2 R. S. 493), confer a lien, unless the articles furnished are actually used in the building, &c., of the vessel against which it is claimed. Can it be said that materials are furnished for, or towards building a ship, when no part of them enter into, or become a part of, the ship ? They may be furnished for the purpose of being thus applied, but is that the same thing as being furnished for the ship ? In other words, does not the idea of furnishing an article for, or towards the building of a ship, embrace as well its application‘to, or in the ship, as its procurement for that object ? I may buy an article of furniture, for the purposes of my library, and with a full intention of placing it there, and then change my mind, and sell it to another. Can it be said that such article was bought for, or towards furnishing my library ?

This doubt, and our conviction that the spirit of the act does not warrant its extension to materials bought for, but never used, in the building of a designated vessel, make it our duty to hold, that for the timber which did not enter into the construction of the ship in question, the plaintiff had no lien.

This interpretation of the statute imposes no undue hardship upon material men. The act gives them a privilege over all general creditors, on 1he footing, that the articles furnished by them, have contributed to the making of the ship, against which it is claimed. It is certainly not asking too much, that they shall look to the application of what they furnish, if they intend to create the statutory lien.

It was incumbent on the plaintiff to prove the extent of his lien. He did not prove it to the amount allowed to him by the referee, and we must therefore set aside the report, and order a new trial.