the ship was in the process of building; the lumber was delivered to the builders at their yard, and was suitable for this ship, and so far as it was actually used in this ship, the presumption is that it was contracted for on account of this ship. It is said, that the construction contended for will give a general and indefinite lien, following the property through any number of intermediate hands. Now where the circumstances plainly show an individual credit, and negative the idea of any other, the lien would not exist. When a man sells to a mere lumber dealer, he certainly trusts to individual credit, and generally when he sells to one not a builder, he has no lien. The debt is to be created by the person for materials to be used in the ship. I think, in this case, there is a primâ facie lien.

On the other hand, it is contended by the libellant, that there is a lien for the whole amount, whether used or not, if it were apparently furnished for the ship. But I cannot say, that if it were furnished for the ship, that it would create a lien, unless used. That is the language of the statute, and is equitable. The merchant, contracting with, or purchasing of the builders, may know about what amount of materials has gone into the ship, and may guard himself to that extent, but he cannot know what amount the builders may have purchased. The equity of the law is, that the materials and labor put into the vessel, shall be held as security for the payment of those who put them in.

The second question is, whether such a credit as was given by the original contract, excludes the idea of a lien. When the original credit was given, it was known by the parties that it would expire before the completion or sailing of the vessel, and I think there is nothing in it inconsistent with the existence of the lien. Such a credit only sus

pends the remedy until it expires.

The more important question is as to the application and effect of the note which was given. This note was not due when process was commenced, and the credit given by it at least suspended the remedy, if it did not displace the lien. As to this amount, then, the suit was clearly premature. But the claimants contend that the note was absolute payment pro tanto. By the law of Massachusetts and Maine, a negotiable promissory note is primâ facie payment. It is otherwise in most of the other States. The case of the Barque Chusan, (2 Story, 455,) was decided according to the local law of New York. In the present

case, the law of Massachusetts must govern the contract. There is nothing in the case to repel the presumption of payment. The $100 cash, and the note, must therefore be taken together as a payment of $500. The question now is, how is this amount to be applied. The libellant contends, that, if it appears that for a portion of the lumber purchased he has no lien, that this payment shall be applied to discharge the portion of the debt not thus secured; while the claimant contends that the payment shall be applied to the extinguishment of the lien. This leads us to consider the doctrine of the appropriation of payments. The books abound with very conflicting opinions on this subject. The language of different cases is not capable of being reconciled. But I think we shall find the dicta more contradictory than the decisions. The disposition to generalize has led to much of the difficulty. Thus, the strongest case cited for the libellant, Upham v. Lefavour, (11 Metc. 174,) contains the general proposition that the creditor may appropriate a payment to discharge a portion of the debt that has no security; but the circumstances of this case were very peculiar, and required no such dictum to support the decision. [The learned judge here entered upon a critical examination of the facts in that case, and the grounds upon which the decision might properly be placed.] The authorities agree that in the first instance the debtor may appropriate; that, failing to do so, the creditor may appropriate at the time, but beyond this point differences arise. It is contended, in some of the cases, that the creditor has the right of appropriation even up to the last moment, and may change a prior application made by him. But I think the true rule is otherwise, and is that which is substantially laid down in the cases Gass v. Stinson, (3 Sumner, 98); Pattison v. Hull, (9 Cowen, 773); and Warren v. Warren, (6 Law Rep. 501.)

All the authorities agree in one point, that the debtor, when he pays, has a right to say to what debt the payment shall be appropriated; and this for the obvious reason that the debtor might withhold the payment, and if the creditor receives it, he must take it on the terms offered by the debtor. Now it is said that the debtor failing to exercise the right, it reverts to the creditor. Why so? What equity is there in giving this right to the creditor at any subsequent period? If the creditor appropriates it at the moment, and with the knowledge of the debtor, and there is nothing said

by the debtor, there is a presumed assent to the application. Otherwise the law ought to appropriate. Now on what principles? The Roman law adopted the rule of appropriation sanctioned in the case of Gass v. Stinson, and the other cases above cited, that the application was to be made as the defendant would have made it if he had expressed his choice at the time. Thus, where there are two debts, one secured by a penalty and the other not, or one bearing interest and the other not, the payment in both cases is to be applied to discharge the former, according to the presumed intent of the debtor. I am satisfied that the law applies the same principle in case of a debt in part secured by a lien; that the debtor would naturally intend to relieve his property from incumbrance. He had the original right of appropriation-the creditor did not exercise the right, and the law now comes in and does it as it presumes the debtor would have done. The case of Harker v. Conrad, (12 Serg. & Rawle, 301,) cited, fully sustains this view, and in the present case the circumstances are stronger in favor of the claimant. The case in Pennsylvania was a case of lien and a general payment, and the court held that the builder was bound in conscience to have relieved the property sold by him from incumbrance, and therefore he must be presumed to have intended so to do. But from the circumstances of that case, it is doubtful whether it was his pecuniary interest to do so. The presumption was certainly a charitable one. But in the present case both the obligation and interest of the builders required them to deliver this ship to the claimant free of all incumbrances, for he had made advances to the builders equal to the value of the vessel. It is therefore to be presumed that they would have so appropriated the payments as to effect this object. I shall therefore appropriate the $500 towards satisfaction of the part secured by the lien.

The last question to be considered is, as to the amount of materials used in this ship for which a lien existed. The amount is left somewhat indeterminate, but on the whole I must take the builders' testimony as most satisfactory. Under all the circumstances, I shall fix the amount at $700. From this the $500 is to be deducted, and a decree will be entered for the balance-$200 and costs.

T. G. Coffin, for libellant.

R. C. Pitman and J. C. Stone, for respondents.

Miscellaneous Entelligence.

PROCEEDINGS OF THE BAR UPON THE OCCASION OF THE DEATH OF DANIEL WEBSTER. Continued from page 532.

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IN New York City - A meeting of the Bar was held in the United States Circuit Court Room, on Monday morning, October 25th, at which the late Chief Justice Jones presided. Mr. Evarts moved the adoption of the following resolutions, which motion was seconded by Seth V. Staples, Esq., in a brief speech:

Resolved, That the Bar of New York have heard, with profoundest grief, of the death of Daniel Webster, and respectfully offer their condolence to the family of the deceased upon this sad event.

Resolved, That in the large capacity and varied powers of his intellect, in the culture and discipline of those powers in the highest sphere of human action and influence, in a fortune of great opportunities and the success of great achievements, Daniel Webster stands first among the men of his day and generation, and his name and his fame will be a treasured possession to his country forever.

Resolved, That while the great abilities, thorough and extensive learning, powerful and splendid eloquence of Mr. Webster call forth our highest admiration — the vast public labors and eminent public services to which, for half a century, he has devoted these noble gifts and large acquirements, from love of country so pure and enthusiastic, have imposed a great debt of gratitude upon his countrymen, which they and their posterity to the latest generation can never, by the public tribute of affection, respect and honor to his memory, too deeply acknowledge.

Resolved, That we feel a just pride in the knowledge that the foundations of Mr. Webster's greatness were laid on the learning and discipline of the profession of the law, the first principles of his fame were gained in its arena, and that throughout a long life he ever honored its votaries, and that we esteem his uniform support of the Constitution and the laws of the land, his habitual reverence for the judicial tribunals, and his perpetual efforts to maintain, extend and illuminate and defend the administration of justice among men, in the several spheres of municipal, constitutional and international law, one of the chief glories and one of the most lasting elements of his renown.

Resolved, That to the glory of his life, the manner of his death was a fitting and majestic close, and leaves no ground for lamentation for his sake who has departed, but for his country only and the cause of constitutional liberty to which he is lost forever.

Resolved, That in testimony of respect for his memory, such of our number as may be deputed by the chairman of this meeting attend his funeral as representatives of our body, and that we all wear the usual badge of mourning.

Hiram Ketchum, Esq. then spoke as follows:

The offices of this day belong less to grief and sorrow than congratulation and joy. It is true that our illustrious countryman, Daniel Webster, is no longer numbered among the living, but it is a subject of congratulation that he lived beyond the ordinary period allotted to human life, and that he was permitted to die as he had lived, for thirty years, in the service of his country; and at his own home, in his own bed, surrounded by his domestic family and friends. The great luminary of the Bar, the Senate,

and the Council Chamber, is set forever, but it is a subject of rejoicing that it set in almost supernatural splendor, obscured by no cloud; not a rav darkened.

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I have often heard Mr. Webster express a great dread, I may say a horrible dread, of a failure of intellect. He did not live long enough to experience such failure. I rejoice that he lived long enough to collect and supervise, and publish to the world, his own works. Many of our distinguished countrymen live only in tradition; but Daniel Webster has made up the record for himself; a record which discloses, clear as light, his political, moral and religious principles, a record, containing no word which, dying, he might wish to blot," or any friend of his desire to efface. More than any living man, he has instructed the whole generation of American citizens in their political duties, and taught the young men of the country how to think clearly, reason fairly, and clothe thought in the most simple and beautiful English. He has reared his own monument. "There it stands, and there it will stand forever." The Rock, which was first pressed by the feet of the Pilgrims first landing on the shores of this western continent, is destined long to be remembered; but no longer than the oration commemorating that event, delivered two hundred years after it occurred, by Daniel Webster.

The monument which indicates the spot where the first great battle of the American Revolution was fought, will stand as long as monumental granite can stand; but long after it is obliterated and scattered, the oration delivered on laying its corner-stone, and the other oration pronounced nineteen years after, on its completion, will live to tell that such a monument was. The names of John Adams and Thomas Jefferson will be known to a distant futurity, but I believe that among the last records which will tell of their names will be the eulogy of which they were the theme, pronounced by Daniel Webster. We all hope, and some of us believe, that the Constitution and Union of our country will be perpetual; but we know that the speeches and orations in defence and commendation of that Constitution and Union, delivered by Daniel Webster, will live as long as the English language is spoken among men. I might refer to the Capitol of the country, to every important institution, and every great name, in our land, among the living and the dead; for there is not one of them that has not been embalmed in his eloquence.

In the few remaining remarks which I have to make, allow me, Sir, to speak of some of the personal characteristics of Mr. Webster, as they have fallen under my own observation. I have long been acquainted with him. From all I know, have seen and heard, I am here to-day to bear testimony that Daniel Webster, as a public man, possessed the highest integrity. He always seemed to me to act under the present conviction that whatever he did would be known, not only to his contemporaries, but to posterity. He was "clear in office." He regarded political power as power in trust, and though always willing and desirous to oblige his friends, yet he would never, directly or indirectly, violate that trust. I have known him in private and domestic life. During the last twenty-five years, I have received many letters from him; some of which I yet retain, and some have been destroyed at his request. I have had the pleasure of meeting him often, in private circles and at the festive board, where some of our sessions were not short. But neither in his letters nor in his conversation have I ever known him to express an impure thought, an immoral sentiment, or use profane language. Neither in writing nor in conversation have I ever known him to assail any man. No man, in my hearing, was ever slandered or spoken ill of by Daniel Webster. Never in my life have I known a man, whose conversation was uniformly so unexception