said that so far as the question of property in the vessel ■was concerned, she was, and remained, until completion and delivery to the purchaser, the property of the builder; that one material element upon which the English decisions rested, he thought, was wanting here, viz.: the fixing any payment or payments at a specific period in her construction; but if that were otherwise, still the authority of those cases had not been recognized, and the law would probably be otherwise held here: and that this case did not come within that of the Eastern Railroad, [Case No. 13,039.] As to the lien claimed on the vessel, however, he was of opinion that it did not exist, because the evidence and circumstances in the case showed an intention on the part of the libellants to rely upon the personal credit of the builder and not upon the vessel. This appeared in the first place from the libel-lants’ own books, in which all the charges were made against the builder personally, without any reference to, or mention of any of the vessels which he was building; again, the materials appeared to have been taken from the libellants’ yard by a teamster employed by the builder, and transferred to-his ship-yard, while no exertions appeared to have. been made by them to ascertain for what purpose these materials were to be used, as would naturally have been the case if they intended to claim a lien upon the vessels in whose construction they were employed, the right to a lien depending upon their being actually used in the construction of some vessel; and if they looked to any vessel, they ought to have known in which their materials were used, or to which they were hauled, and would naturally have made inquiries at the time; but no inquiries were made, so far as appeared, and no charge to any vessel.
Thirdly, when payments were made by B., the builder, as they were from time to time, to the amount of ¡¡>2,500, there was no appropriation by the libellants on their books, or receipts, to any items to distinguish their claim upon the different vessels, as would be proper, if they intended to-claim liens upon them, for it would be material to know which was paid for, and which not.
The fourth circumstance bearing upon this-matter was the alleged credit of four months. In itself, that was the most material, but it was ■ mentioned last because there was more doubt as to the fact.
His honor reviewed the evidence upon this point, and expressed his opinion that it showed a course of conduct by the libel-lants, inconsistent with the intention to claim a lien, even if it did not, and he seemed to-consider that the weight of the testimony was that it did, show such a credit. He was of opinion that the payments made must be applied to the account generally, and not as the plaintiff had claimed and offered evidence to show that they should be, to other items than those specified in his libel. And he came to the conclusion, upon the whole, that no lien existed, because upon all the evidence, not relying upon any of the considerations mentioned, alone, it appeared to-be the libellants’ intention to waive it, and rely upon the builder personally. The matter of the four months credit he had considered only as bearing upon the general question of a personal credit, because it was not alleged in the claimants’ answers as a substantive ground of defence, although conclusive, when properly alleged and proved, if that credit would certainly extend beyond the time limited by statute, and more or less-strong in proportion to the probability that it would extend beyond that time, the weight to be given to it in this case, depending on its force as evidence of an intention not to rely upon a lien. Libel dismissed, with costs-for claimants.