The Highlander.

Ingersoll, who decided the case below, came to the conclusion that the lien existed, and enforced it by his decree. The mere giving of credit does not necessarily displace the lien. That has been held in several cases. The ground here is not that a credit was given, but that the credit was inconsistent with the idea of a lien, for the reason, that, unless the boat should remain at her port for the three months, the lien would be lost by the terms of the statute; and that this must have been within the contemplation of the parties. The case of Peyroux v. Howard, (7 Peters, 324,) bears somewhat on this question. There, a contract giving an unconditional credit, extending beyond the time which the law fixed for the duration of the lien, was considered to be inconsistent with the idea of a lien, and to operate as a waiver of it. The difference between that case and the present one is, that the credit given here was not absolute, but conditional upon the owner's giving a note at three months. On his neglecting or refusing to give the note, the credit ceased; for, the demand then became immediately due and payable, according to well-settled law. Now, it may be going too far to say that the builder must have intended to waive the lien in the event of the refusal to give the note; for the case comes down to that. I agree that he would have waived it, if the agreement had been kept on the part of Cornell, and the note had been given. But there is certainly much justice in saying that, on his refusal to keep the agreement in respect to the last instalment, the builder also ought not to be bound by the agreement, but should be remitted to his rights independently of the contract. It may have been material to him, whether this balance should remain in account, or in a note upon which funds could be raised.

The State act is very strong and positive. It declares that such debt, (one like that of the libellants,) "shall be a lien upon such ship or vessel, &c., and shall be preferred to all other liens thereon except mariners' wages." There is no condition or qualification attached, as in the case of maritime. liens, in the Admiralty, except that the work must be done on the vessel or the supplies furnished to do it. The affirmative

Comstock v. Carnley.

therefore, lies on the claimant to displace the lien. That, it is insisted, has been done, by showing a contract inconsistent with any such lien. This assumes, however, that the contract has been fulfilled, in which event the inference is clear. But, is the party equally subject to this inference when the contract has been broken? It seems to me not. As I read the contract, the builder agreed to give three months' credit, on the owner's giving him a note of that tenor; if not, then no credit was given. This is certainly the legal effect, in case of the refusal to give the note, and I do not see why it should not be considered as the meaning and intent of the parties.

Upon the whole, I am inclined to agree with the Court below, and to affirm the decree.

ADDISON J. COMSTOCK

vs.

THOMAS CARNLEY AND DON ALONZO CUSHMAN.

Where a witness examined by deposition, taken ex parte, under the Act of Congress, on the ground that he resided more than one hundred miles from the place of trial, produced before the officer who took the deposition a copy of an original paper, to which he had access, and from which he took the copy, and testified that it was a correct copy, but the original was not produced before the officer: Held, that the proof was not competent evidence of the contents of the original paper.

The proof was no higher than parol evidence of a written instrument, the original of which was in existence.

J. contracted with R. to build a railroad for R., and to take in pay the bonds of R., which were to be advanced to J. on his giving security to apply the proceeds to the construction of the road. C. became such security. J. received the bonds and purchased goods with their proceeds. The goods were attached as the property of J., under process issued against him by D., a creditor of his. C. then sued D., in trover, for the goods, claiming that the bonds and the goods had been assigned to him, as his indemnity for becoming such security, by J., and were his property, until applied to the construction of the road. On the trial, J. was examined as a witness for C. Quere, whether J. was a competent witness for C. Semble, that he was not, because, if the verdict should

Comstock v. Carnley.

be for D., J. would not only be liable to C. for the property, but, as principal in the transaction, would be bound to indemnify C. for the expenses of the litigation, and thus the balance of interest would be disturbed.

It was a question of fact for the jury, whether the goods did not belong to J., and not to C.

(Before NELSON, J., Southern District of New York, May 5th, 1857.)

THIS was an action of trover brought to recover the value of certain property seized by the defendant Carnley, as Sheriff, by virtue of a process of attachment issued out of a State Court, against one Darius C. Jackson, in favor of the defendant Cushman. Comstock, the plaintiff in this suit, claimed to have been the owner of the property. Several questions were reserved at the trial, and a verdict was rendered for the plaintiff, subject to the opinion of the Court. Jackson and his partners, of Elyria, Ohio, had entered into a contract with the Junction Railroad Company in that State, to construct a portion of their road, and, among other things, agreed to take bonds of the Company and other corporations in payment for the work. A certain amount of the bonds was to be advanced to the contractors, on their giving security for the application of the proceeds to the construction of the road. It was claimed that Comstock gave the security, but insisted, as an indemnity to him, that the bonds, and also the goods purchased with any of their proceeds, should be assigned to him, and should be deemed as belonging to him, until applied in the way agreed. The goods in question were purchased with the proceeds of some of the bonds, some portion in the name of Comstock, the rest in the name of the firm of Jackson. All the goods were purchased by Jackson. One of the bonds was also attached in the possession of Jackson. The case turned a good deal on Jackson's deposition taken under the Act of Congress. ex parte, he residing more than one hundred miles from the place of trial.

NELSON, J. The first question presented is, whether or not Jackson's deposition furnishes competent proof of the suretyship of Comstock, in behalf of Jackson's firm, to the

Comstock v. Carnley.

Railroad Company. This proof is quite material, as it lays the foundation of the title of Comstock to the property in question. The original writing securing the Company was not produced before the United States Commissioner, and proved, but only a copy, which Jackson testified was a correct copy. That copy is annexed. I think the proof produced incompetent. It was no higher than parol evidence of a written instrument, the original of which was in existence. The original was in the hands of the Railroad Company, where, as I understand from the deposition, Jackson examined it and procured a copy which he produced before the Commissioner. The original should have been produced and proved before the officer, and he should have annexed a true copy, in returning the deposition to the Court. Or, if Jackson could not have obtained the original, it was competent to examine the officers of the Company in whose custody the paper was. (Steinkeller v. Newton, 9 Carr. & P., 313.)

I entertain strong doubts, also, as to the competency of Jackson as a witness for the plaintiff. His competency is put upon the ground that his interest is neutralized that is, that he is liable whichever way the case may result. But, I am inclined to think, that as the case stands, if the verdict should result in favor of the defendants, Jackson would not only be liable to Comstock for the property, but, as principal in the transaction out of which the litigation has arisen, would be bound to indemnify Comstock, his surety, for the expenses of the litigation. This would disturb the balance of interest. It is not necessary, however, to express a definitive opinion upon this question, as there must be a new trial, and the determination of the point will depend upon the facts as they may appear upon that trial.

The case is one, also, that should have been put to the jury upon the question of fact, whether or not, under the circumstances attending the purchase of the goods in question, and the dealings with the bonds, the property did not belong to Jackson's firm, and not to Comstock, the plaintiff. The

Serrell v. Collins.

case properly presented this question, and it belonged to the jury to determine it.

For these reasons, there must be a new trial, with costs to abide the event.

ALFRED T. SERRELL

vs.

DENMARK P. COLLINS AND ABIJAH PELL. IN EQUITY.

Where, on an application for a provisional injunction, to restrain the infringement of letters patent, it appeared that the right of the plaintiff to the inven tion patented had never been established at law, that the plaintiff had twice failed to establish his right, on trials at law, that the defendant attacked the novelty of the invention, and claimed a right to use it on other grounds, and that the plaintiff's right had not been acquiesced in by the public, the Court denied the application.

But the Court made an order requiring the defendant to be ready to try, at the

next term, an action at law pending against him on the patent, and providing that, if he should not be so ready, an injunction should then issue, as prayed for.

(Before INGERSOLL, J., Southern District of New York, June 30th, 1857.)

THIS was an application for a provisional injunction. The plaintiff claimed to be the first inventor of a new improvement in machinery for making mouldings, for which he obtained letters patent, dated May 16th, 1848. That patent was surrendered, and a reissued one obtained, dated January 7th, 1851. The last-mentioned patent was also surrendered, and a new reissued one was obtained, dated June 21st, 1853. The bill set forth, that the defendants were violating the rights secured to the plaintiff by the patent, and prayed for an injunction. The novelty of the invention was attacked by the defendants, and they also claimed a right to use the invention described in the patent, on various other grounds.