
    Samuel Bryant versus Andrew J. Erskine and William McLoon, Trustee.
    
    M. promised to pay E. his account against a third person, if it should be adjudged a lien claim upon a certain ship : — until some competent tribunal has adjudged the claim, a lien, the demand against M. is “ contingent” and he cannot be held as the trustee of E. in a suit by a creditor of E. (R. S., c. 86, § 55.)
    Exceptions from the adjudication of Rice, J., discharging the trustee.
    Isaac Ames, and Erskine, the principal defendant, as partners, claimed to have furnished materials of the value of $330, for a ship built at Rockland by one Rhodes, in the year 1854, for which amount they claimed to have a lien upon the ship, under the statute.
    
      The trustee purchased the ship of Rhodes, who died before it was launched. No suits could be brought to preserve the lien claims, no administrator having been appointed on Rhodes’ estate. Several claimants filed libels in the District Court of the United States against the ship.
    The trustee, in Ms disclosure, says, — "Ames said to me that he had a bill against Rhodes for materials that went into the ship. I told him if it was a lien claim, I would give Mm a writing agreeing to pay the same ; and, in February, 1855, I signed a paper agreeing to pay Mm, or Ames and Erskine, so much of said bill as should be adjudged a lien claim on said ship, provided the U. S. Court should decide that a libel for any lien claim on the ship should be sustained in that Court,” &c. * * '* * * * "I afterwards learned that the bill of Ames and Erskine was not a legal lien claim on the ship.”
    The plaintiff filed allegations, as is provided for by the statute, and took testimony to support them, — but the view of the case taken by the Court renders it unnecessary to state here the substance thereof.
    
      L. W. Howes, for the plaintiff.
    
      II. Stevens, for the defendant.
   The opinion of the Court was drawn up by

Davis, J.

The liability of the alleged trustee, to the principal defendant, was a collateral one, for the debt of another. Ilis contract was in writing, no copy of which is in the case. Though proved by parol, in part, we can come to no definite conclusion in regard to its terms, except that it was an agreement to pay whatever part of the principal defendant’s bill " should be adjudged by the United States Court to be a lien claim on the ship built by Francis Rhodes.”

The disclosure is very indefinite in other respects. The counsel for the plaintiff claims by it, that Rhodes, the original debtor being dead, the question, whether any libel could be sustained, was to be determined by the United States Court; but that the question, whether the principal defendant’s demand was a Men claim, is now to be " adjudged” by this Court. We do not think the terms of the contract are sufficiently proved to authorize us to come to such a conclusion. But, if they had been, it would then appear that, at the time of the service of the plaintiff’s writ, it was uncertain, and contingent, whether the alleged trustee would ever be liable upon his contract. No suit could have been maintained upon it, until some tribunal had " adjudged” Erskine’s bill to be " a lien claim.” Until then, it was a " contingent” demand. Such an adjudication has never yet been made. The case, giving the contract the construction claimed by the plaintiff, is within one of the exceptions stated in section 55 of chapter 86 of the Revised Statutes; and the trustee was properly discharged.

Exceptions overruled.

Tenney, C. J., Rice, May, Goodenow and Kent, JJ., concurred.  