said that the first objection raised by the counsel for the claimant, appeared a formidable one. Liens of this kind did not exist before the passage of the statute, and the libellants must bring themselves within its meaning. The vessel entered the harbor of Portsmouth, before she was libelled. The question is, whether she is to be considered as having arrived at a port out of this commonwealth, within the meaning of the statute. The counsel for the libellants had cited the case of Hancox v. Dunning, 6 Hill, 494, in which it was held by the court, in an opinion delivered by Bronson, J., that after a lien had been acquired, pursuant to the New York statute, it was not lost, although the vessel made a short excursion, beyond the bounds of the state, for the mere purpose of testing her machinery, in the course of which she landed, and made fast to the dock at Perth Amboy, in New Jersey, remained there about two hours, and immediately returned to her former berth in the city of New York. The New York statute is not in precisely the same words with ours, the language being, “such lien shall cease immediately after the vessel shall have left the state;” but the decision is in point. In that case, the court held that the excursion, though within the letter, did not come within the meaning, scope and purpose of the statute. In the present case, the libellants had no reason to expect that the lien would be lost, by- the vessel’s starting from Newburyport Neither party could have anticipated her being driven into Portsmouth. Such an entry into that harbor cannot be considered an arrival, within the meaning of the legislature. The policy upon which the law may be supposed to have been *296founded, would not be promoted by so rigid a construction. On the strength of the decision in New York, and a view of the purposes of the Massachusetts statute, and the circumstances of this case, the court do not think that the lien was lost by the vessel’s being driven into Portsmouth.
[On appeal to the circuit court, this decree was reversed. Case No. 12,282.]The second objection is, that the claimant became the owner of the vessel, upon making the first payment, and that the builders had a lien upon her, and that the libellants, being sub-contractors, could not also have a lien.
This objection cannot prevail. There is nothing in the contract which indicates an intention that this vessel should become the property of the claimant, before she should have "been completed and delivered to him.
By the terms of the contract, $5,000 were to be paid, at a certain stage of the work, to the builders, upon their furnishing security. This indicates that the vessel was not to be held by Mayo, the claimant, as his own, or even as security. The contract also provides for a delivery of the vessel by the builders to Mayo, after her completion.
It is not true, as contended, that a vessel in the process of construction, under a contract between a merchant and the builder, becomes as against third persons, the property of the merchant upon his making the first payment. The English decisions cited, use the guarded language, “as between the parties themselves.” These libellants had no notice of any contract, or of any ownership by any one. except that of the builders. She was built by Manson & Fernald, at their own ship-yard, in their own name, and to all the world they appeared to be the owners. And so far at least as the rights of the libellants are concerned, they must be deemed to have been so. And the lien of the libellants would not, therefore, subject her to a double lien. This case differs materially from that cited from Curtis' Reports. That was a libel for the repair of an old vessel, known to be owned by parties other than the contractors, for repairing. I have, therefore, no occasion to consider whether a double lien might be sustained under the statute.
The third ground of defence is, that there was a waiver of the lien, and the fact relied upon is, that the materials were charged to Manson & Fernald. This is evidence, but not conclusive evidence, of an intention not to rely upon the vessel. It may be explained and repelled, and I think is so here. This debt was contracted before the vessel had any name. The charge was made as a mere memorandum, and not from an intention to rely upon the builders alone. The agreed statement of facts declares that the libellants believed they had a lien. This is inconsistent with an intention, or agreement, to waive the lien. It is equivalent to saying that they intended to rely upon it. Decree for the libel-lants.