Page:Federal Reporter, 1st Series, Volume 7.djvu/264

 252 FEDEBAIi BEFOBTEB. �of the security by the cost of the new sails, (Southworth v. Isham, 3 Sand. 448,) yet he did not intend to appropriate or divert the old ones from the use of the ship or the operation of the mortgage. Applying these suggestions to the case under consideration, it appears to me that this old copper, as Boon as it was removed from the sides of "the vessel and its place supplied with new, became the property of the mort- gagors. Upon this conclusion, the master must have dis- posed of the 2,000 additional pounds which he sold at Rio, as the property of the mortgagors, for $240; and he probably would have disposed of the remainder in the same way if it had not been thought best to bring it here for a better market, whieh has proved the case. �No practical use has been shown, or even suggested, to which this copper could be applied in the ordinary navigation or use of the vessel ; and theref ore, although it was suffered to remain on board until the mortgagee took possession, there is no reason to conclude that the mortgagors did not intend to separate it from the mortgaged property — the vessel — and appropriate it to their own use in exchange for the new. Indeed, there is not a single circumstance connected with the transaction which tends to prove that the old copper was not only actually taken off from the sides of the ship, but legally separated from it and its uses, so that it was no longer a part of it. And, finally, the value of the security of Sutton & Co. has been enhanced rather than diminished by the exchange, and therefore there is no particular merit in their claim. Under these circumstances, this copper was and is the prop- erty of George and Jabez Howes, and therefore liable to the attachment of the libellants in their action in the state court to recover the sum due them from said Howes, and they thereby acquired a valid and subsisting lien thereon for the amount of their claim and the costs of their action.. �The fund arising from the sale of the copper, less the ex- pense of sale and this litigation, must, therefore, be delivered to the sheriff, with the writ of attachment, to keep, subject to the exigencies of such writ. ��� �