Page:Federal Reporter, 1st Series, Volume 10.djvu/938

 926 FEDERAL REPOaTBB. �ferred to, there is no claim that Hawkins was not entitled to money, or that he was to take his pay in goods. The passages in the testi- mony referring to Hawkins' statements that he was doing the work on the credit of McLean, evidently refer only to the person from whom he would take his orders and directions concerning the repairs to be made on the vessel; they were obviously not made with reference to any question of lien, nor were they designed to express any waiver of whatever lien the law might give him. McLean testifies that noth- ing was ever said between them upon the subjeot of a lien. Unless something ia said or done incompatible with it a lien exists as a matter of course; it is the ordinary right of the mechanic; and it existed in this case upon McLean's interest, unless the vessel was voluntarily surrendered and the lien thereby waived. �The burden of proof is undoubtedly upon the libellant to show that Hawkins waived his lien. Every presumption is to the contrary. To divest his lien, in the language of Judge Story, (The Marion, 1 Story, 76,) incontestible proof of an intention to surrender the vessel to the owners must appear, through the language or the acts of one or both of the parties, plainly incompatible with the continuance of the lien, I am not satisfied that the evidence in this case shows any such intended surrender or waiver by Hawkins, or that the libellant or Capt. Crowley ever so understood. �I have already stated that Hawkins' possession of the vessel, while she was in his yard undergoing repairs, was a sufficient possession to found a claim of lien upon, notwithstanding the presence of Law- rence, the mate, in the pay of McLean, and the occasional presence of Capt. Crowley. The vessel was launched on the twenty-sixth of August. McLean, Capt. Crowley, and varions other persons were aboard at the time, and participated in the festivities of the occasion. It cannot be serioualy claimed that this amoimted to any surrender of the vessel. The launch was the ordinary incident of that stage of the work. The work was unfinished, and was continued daily by Hawkins until the thirteenth of September. Upon being launched she was moored at a dock adjacent to the ship-yard which Hawkins had the use of. He slept in her that night. The next day, fearing a storm, in or- der to prevent her from chafing at the dock, he ordered her to be hauled out into the stream, where she lay until the sixteenth of September, when she was arrested and carried away by the marahal. IShe was still incomplete; her center-board was not in, nor her forecastle fin- ��� �