author: Spalding, J. Hitchcock, C. J.,

text:
    Julius B. Webster v. The Brig Andes.
    Under the act of 1840, authorizing proceedings against steamboats and other watercraft by name, sub-contractors and day laborers employed to perform work on such watercraft, have a lien which they may assert against the craft, in whosesoever hands she may be found.
    It is immaterial at whose instance the work is done, provided the person employing the laborer has, at the time, the control of the craft, or some part of her, as contractor or sub-contractor for the building thereof.

      This is a writ of error to the Court of Common Pleas of Lucas county.
    The original action was assumpsit, under the act of Feb. 26, 1840, entitled “ an act providing for the collection of claims against steamboats and other watercraft, and authorizing proceedings against the same by name.”
    The declaration contains the common counts for work and labor, etc., to which the defendant plead general issue.
    The case came on for trial at the June term, 1848, of the court of common pleas of Lucas county; was submitted to the court without the intervention of a jury, and judgment rendered for defendant.
    The facts in the case are detailed in the following bill of exceptions:
    Be it remembered, that at the trial of this cause, upon the pleadings on file, at the court and term aforesaid, said cause was submitted to the said court, by the consent of parties, without the intervention of a jury.
    When it appeared in evidence that at the county aforesaid, in the month of December, A. D. 1846, the plaintiff performed sixteen days labor, at the price and value of one dollar and twenty-five cents per day, in building said defendant, to wit: in planking the deck of the same, which defendant was then and there being built, and afterwards and before the commencement of this suit, was a watercraft, navigating the waters within and bordering upon the State of Ohio.
    It also appeared in evidence that said labor was done in the employment of James W. De Neal, in pursuance of a contract which he then and there had entered into, to plank the deck of the said defendant aforesaid, with Joseph P. Arnold ; and that said Arnold was then and there in the possession of said defendant, and building the same, under the annexed contract, which is made a part of this bill of exceptions.
    It was also in evidence that the said defendant was after-wards, and before the commencement of this suit, delivered to Lewis & Beardsley, in-the said contract named, who paid the-said Arnold in full for and upon the same ; but that the said De Neal never was paid for planking the deck of the said defendant as aforesaid ; and there was no proof that said De Neal or said plaintiff knew anything of the terms of the said contract between the said Arnold and the said Lewis & Beardsley.
    It was further in evidence that after eleven days of said plaintiff’s labor had been performed, a notice was put up in the-work-shop belonging to the ship-yard of the said defendant, and also on the said defendant, and signed by the said Arnold, to the purport that hands at work on the defendant must not look to the same for pay, but to their employers.
    Whereupon the court ruled, contrary to the request of the plaintiff, that the plaintiff was not entitled to recover for the said labor, or any part thereof.
    Upon which ruling of the court, the said plaintiff made a motion for a new trial, which was then and there overruled. Whereupon the plaintiff excepted to the said ruling of the court, and prayed that his bill of exceptions, in that behalf, might be allowed, which is accordingly done.
    The following is a copy of the contract, made part of the bill of exceptions:
    Memorandum oe a-n Agreement, made and entered into at Toledo, Ohio, this 15th day of Oct., 1846, between Lewis & Beardsley, of Oswego, New York, by their agent, Simeon Eitch, jr., and Joseph P. Arnold, of Toledo, Ohio, which is as follows:
    Said Arnold agrees to build, at Toledo, for said Lewis & Beardsley, a vessel. Hull of the following dimensions: one hundred and twenty (120) feet keel, 23 feet 9 inches beam, and 9 feet 6 inches hold; to be built, finished, launched and in every respect ready and complete for her rigging, with the spars stepped, by the 4th day of April, 1847. Her timbers and planking outside and inside to be of white oak and of a good quality; thickness of plank and size of timbers not to be of less dimensions than those of the schooner Ireland. Deck plank .and spars to be of white pine ; cabin, forecastle, forecastle gallery, etc.; and to be done and finished in a first rate and workmanlike manner. In fact, every thing to be done necessary for .a vessel of these dimensions, in a manner suitable and with suitable materials. The vessel to be sufficiently and well fastened and painted, and with a good and sufficient yawl boat, which is also to be painted and finished for hoisting upon davits, and the vessel finished every way ready for rigging, including all iron work about the vessel except the upper dead eyes. Cabin to be neatly and plainly finished, and the vessel to be built with reference to navigating the lakes and Welland canal, and bearing a large cargo of wheat, twelve inches dead rise or thereabouts, for and at the rate of $24 per ton, custom house measurement; and which may be paid for by said Lewis & Beardsley, or their agents, as follows: As the work progresses, they may pay in materials for building said vessel, or by paying for secure for same, at said Lewis & Beardsley’s option, not exceeding an amount which shall be $2,000 less than the whole vessel shall amount to ; but may, if required by said Arnold, equal that amount; to be paid by said 4th of April, 1847, provided said vessel shall ■be done, finished, launched, etc., as per contract; and the remaining $2,000 to be paid, $1,000, with interest, in six months .after delivery, and $1,000, which shall be in full, within fifteen months, with interest, after said delivery.
    It is further understood and agreed by the parties, that said vessel, frame, and material shall remain in the possession of said Lewis Beardsley, as fast as got out or put together, as a guaranty that the said vessel shall ■ be built and finished as above. And it is further agreed that after said vessel is done and delivered, said Arnold shall have right and lien upon it, as his security that said Lewis & Beardsley, or any one representing them, shall pay the aforesaid balance of $2,000.
    The rig of said vessel not being determined upon, it shall be the privilege of said Lewis & Beardsley to determine whether ■the spars be calculated for a fore and aft or brig rig, and also whether the galley shall be connected with the cabin or separate, and what kind of cut-water, color of paint, etc.
    Signed, Lewis & Beardsley,
    Per S. Fitch, jr.
    Joseph P. Arnold.

      Abbott f Dodge, for plaintiff in error.
    No argument for the plaintiff was received by the reporter.

      Tilden 3? Baker, for defendant.
    I. The question presented by the record, and which we pro•pose to discuss, is, whether or not by the evidence submitted to the common pleas, a demand was established under the statute .authorizing a recovery against the vessel by name ? This question is one of fact, and a court in error ought not to declare the finding of the appropriate forum, for its trial, to be wrong, except in a case of manifest error or mistake, or unless some distinct legal principle has been violated. All reasonable intendments should be indulged, and a mere difference of opinion, upon a matter of fact only, is not enough to authorize the court to grant a new trial.
    The statute is in derogation of the common law, and specifically limited to a prescribed state of facts. It would be against the known rules of interpretation to give it a more extended scope than its terms demand: and against right to sustain an action in which any one material fact is unproved.
    Two classes of cases are provided for; one arising ex delicto and the other ex contractu. It is to the latter only, that the case refers itself. To bring it within the statute the following distinct facts must appear: 1st, that the defendant is a “ steam boat or other watercraft.” 2d, that the debt was “ contracted on account thereof.” 3d, that it was contracted “ by the master, owner, steward, consignee, or other agent,” and 4th, that it was for “ materials, supplies or labor, in the building, repairing, or equipping the same : or that it was due for wharfage, or for damages arising out of a contract for the transportation of persons or property.” These facts are material, and must be proved. And they must be proved by the one who sues: because they are affirmative propositions, and he has the means of proof if they are true: and because they are part of his case and essential to his title. In a logical as well as legal view, they are to be proved by him who asserts the rights which they confer, and who invokes the remedies to which they give rise. And whether, in this case, they have been proved, is a pure question of fact, which has already been decided. We think that decision ought not to have been reviewed at all, and that at any rate it was right.
    The action was brought for “ labor in the building ” of the vessel: the labor was performed at the request of De Neal, a sub-contractor under Lewis & Beardsley: he was not a “ master, steward or consignee: ” and the case requires that the plaintiff in the court below should establish, upon the evidence there adduced, the following propositions: that the debt was “ contracted on account ” of the vessel, and that De Neal was either the “ owner or other agent ” of the owner of the vessel. Both of these propositions can, we think, be conclusively answered.
    1st. The labor was not performed “on account” of the vessel. The case has been conducted as if the expression “ on account of ” was either altogether immaterial and without meaning, or, as if it related to the use made of the labor in question, and as though labor performed in the building of a vessel, was performed “ on account thereof.” Argument cannot be required to prove that the expression is a material member of the sentence: and, that the construction here supposed is not the true one, is plain from this, that besides that it is not the natural, or a,t least not the most natural, import of the words, it is, by another clause, provided that the labor which is performed “ on account thereof ” must be performed “ in the building, repairing, furnishing or equipping the same.” It is not to be supposed that these two distinct expressions mean the same thing. Nor do they. What is meant is this: that the debt was contracted “ on the credit ” of the vessel; that the vessel wras trusted; that the debt was contracted under circumstances entitling the creditor to pursue his remedy under the statute. It was not the intention that the statute should create a liability; but only that it should provide a mode in which the parties might create one. Who those parties are, the statute has plainly defined; and what it is which they are to do to create that liability is to deal on the credit of the vessel. No new element is introduced into the law of contracts; and no change is made with respect to the capacity of persons to bind themselves or their property. But a mode is provided in which a contract may be so made, that it may be enforced against the property of the owner, as well as against the owner himself, and that mode is by binding the property itself as well as the owner. Parties may so deal that the property itself may be pursued; and they may so deal that it cannot be pursued. The statutory right may be divested, and so it has been decided: there is equal reason for holding that a contract may be so formed that it shall not be acquired. To decide otherwise would be to affirm that the parties are not free; and that too at the sacrifice of an express statutory provision. This cannot be the law ; and that it is not, is further manifest by this, that the lien law, subsequently passed, makes express provision for the very case in which the debt was so contracted, as not itself to bind’ the property. . By that law, where a vessel is owned by one man, and another contracts to perform labor upon it, the under workmen and material men have a lien; but it is not a primary lien upon, or a right to sue the vessel: it is a lien on the piece in the hands of the owner, to secure a debt due from the contractor to him who has performed the labor or furnished the materials. That is a clear case where there is no right to sue the vessel; but it is only clear because it affords evidence that the vessel itself was not trusted; and where, in any other case, the same fact exists, that is, that the debt was not .contracted “on account of” the vessel, the right to sue the vessel is repelled in a manner equally decisive. We do not feel required to adduce further proof on this point, although it is not wanting. We feel warranted in the assumption that a debt, to be one which may be enforced by attachment against a vessel, must have been contracted on the credit of the vessel. It must have been contracted by some one having the power to bind the property of the owner therein; and there must have been an understanding that the vessel should be regarded as a debtor. This fact, being an essential element of the statutory liability, must be shown, and whether it is sufficiently so is a question of evidence.
    There is nothing to show that Lewis & Beardsley intended to make themselves liable to any of the worknjen; and the facts warrant the conclusion that the plaintiff did not expect to look to them, nor to the vessel for his pay. It was with He Neal that he dealt, and it was He Neal whom the circumstances authorized him to regard as his debtor. His labor was performed on the credit of He Neal, and not on account of the vessel. At any rate, the court below so found; and at least it cannot be said that that finding was so clearly against the evidence as to warrant the interference of a court of error; and on this ground alone, we think we have a right to leave the circuit .decision reversed.
    ■2d. But it must also appear that the debt was contracted by some one whom the statute regards as authorized to act in the name and on the credit of the vessel; and our next proposition will bé that He Neal, at whose instance the labor was performed, was not so authorized. If he was, it is because he was either an owner or an agent. We shall try to show that he was neither.
    1st. He was not an owner. The rules of property are not changed by the statute ; and the mode in which the title to a ship .or vessel may be acquired and lost, is indicated by the principles of the general law. The agreement before referred to was made, and the acts done in pursuance ff it were performed, with the express intention of vesting the property in Lewis & Beardsley, and that in a form so absolute and clear as to protect the subject of it against all liens and liabilities to be created or incurred by Arnold. It is certain that this intention has been accomplished, if it was capable, in law, of being effectuated in the manner adopted by the parties; and the only legal impediment which can be suggested to this, is the principie that the thing which is to be the subject of a sale or trans fer, must have an actual existence at the time of such sale or transfer, or the transaction is a contract of sale and not a sale. But this principle, though generally true, is not universally so. One exception, at least, has been established; and that is where the subject is a ship or vessel to be built of materials belonging to the contractor, and the agreement and acts of the parties denote an intention to have the property pass as the component parts are wrought out of the raw material and. put together. As the principle rests upon intention it is by evi dence that it is manifested ; and the cases which have been decided, bring the one under consideration under the operation of the principle. Woods v. Patten, 7 Eng. L. L. Reports 310; Clark v. Spence, 31 Eng. L. L. R.; Abbott on Ship. 5, and Appendix 799. At any rate, there can be no doubt that where, as in this case, there has been an actual delivery of the keel, so as to pass the property in that, all materials subsequently united to it, with the consent of the owner of such materials, follow the ownership of the keel; and this is especially and strongly so if such be the express agreement of the parties. Glover v. Austin, 6 Pickering’s R. 209.
    2d. He was not an agent. It has been said that it was the intention of the members of the committee of the legislature, who framed and reported the statute under consideration, to use the words, “ or other agent,” in a broad and sweeping sense, so as to include every claim beneficial to a vessel, at whose instance soever incurred. We submit that we are not bound to accept such an issue, nor to unite in the trial of such a fact. That the terms of the statute are, in many respects, loose and vague, is not a matter resting on our assertion alone, and that it has not yet assumed a consistent shape, any one may convince himself, who will examine the conflicting dicta to which it has given rise; and if the intention thus imputed to its framers be true, it shows that the spirit of its conception was not behind that in which it is sometimes construed, and is generally attempted to be carried into execution. For there seems to be an idea that the class of persons who deal with vessels are incapable of taking care of themselves; that those who own them are persons whom the statute intends to watch without sleeping, and hunt down without mercy; and that where labor is performed about a vessel, no matter at whose instance, or under what circumstances, it makes a claim some how or other, falling within the expansive embraces of this prolific parent of queer things. But in this instance, if the law itself is to govern, it is easy to vindicate it from a fault so flagrant, and to show that broad and sweeping as it is, there are at least some cases which it does not embrace.
    As there must be a rightful authority vested in him who assumes to create a burden upon the property of another, so he who has, or may be presumed to have, or may in fact have that authority, is precisely described. He may be the owner himself, or some one standing in his place ; and of the latter the statute makes the following classification: 1st, Those whose official character and relation to the owner, raise a presumption of agency, and these are “ masters, stewards and consignees;” and 2d, all other persons, not sustaining either of those characters, by what name soever known, who are in fact empowered to act for the owners. These persons are agents — they are the “ other agents ” referred to in the act. Any broader interpretation than this, would be to substitute the word person, or some other word equally sweeping ; and it would be to erase all the descriptive words employed, for the term person comprehends as well “ master, stewards and consignees,” as it does “ other agents.” No such judicial legislation is demanded by any principle of policy or justice. But the statute contains other evidence that we are not wrong. It enables the creditor to sue either the vessel or the owner, and if the sale of the vessel does not produce enough to pay the debt, to collect the balance “ on execution as upon other judgments.” Hence, where there is a right to sue the owner there is a right to sue the vessel ; if there is a right to sue the vessel it is because there is a right to sue the owner; and if the owner is not liable, how can the vessel be ? And can the owner be liable unless he has bound himself or authorized another to bind him ? There can be no election if there is but one remedy: and it would be strange if the owner were not bound to pay the debt, if he could be made to be so for the balance of a judgment founded thereon. Such results should be avoided, and they will be by holding the vessel to be liable only for debts contracted on account thereof by the owner, or by some one whom he has authorized to act for him.
    The rules by which the existence, validity and extent of an agency are to be ascertained, are those furnished by the general law; for in this respect also the statute introduces no change. By these rules it is required, amongst other things, that the principal do intend to, and do in fact, delegate the power in question ; and whether he has done so, is a pure question of fact, depending upon the evidence of what he has done, and of the intention by which he was governed; and to that we recur. The agreement before referred to is itself enough to disprove the suggestion of agency; and it was repelled by no evidence of any act before or afterwards capable of establishing the fact, or calculated or intended to mislead third persons; and the position of the plaintiff below, and the circumstances under which his claim was made, were such, that he could not have been ignorant of its existence and bearing upon his own rights.
    II. The above is the result of the case, upon the precise questions arising upon the evidence, and indicated by the form of the issue between the parties. But the same conclusion will be arrived at by a right discussion of it upon its statement in a more general form. Lewis & Beardsley were commercial men, largely interested in shipping. They were desirous to obtain a vessel, and to contract for the buildiing of one in such a manner as to enable them to know precisely what it would cost, and to be relieved from all care and superintendence, and from every burden but that of paying the price agreed. Arnold was by trade and occupation a ship-builder, skilled' in all the details of the business, and, by the agreement, was provided with the means for the purchase of materials and the employment of workmen. Both parties agreed to vest the property in Lewis & Beardsley, and that if they should pay the full price of the vessel, they should be relieved from all losses to result from the misfortunes, mismanagement and fraud of Arnold. They did so pay, and if any of the material men or laborers have not been paid, it is not their fault. They practiced no concealment or other fraud; they received an open and public delivery of the keel of the vessel in order to perfect their title; they had no agency in the purchase of materials or in the employment of men, and no control over them when employed; they paid agreeably to their undertaking, and had a right to suppose that Arnold had paid ; and now they are called upon to pay a second time to men whom they have not employed, and to whom they are not bound by any act done or authorized by them. The case thus stated, is a common one wherever the business of ship building is carried on; and its circumstances and reasons belong to every case in which one man is to fabricate and another to pay for and own a structure requiring material, labor and superintendence. To hold in this instance, that the agreement is not obligatory; to hold that Lewis & Beardsley are bound to pay the debts of Arnold or of De Neal, contracted'by them in the execution of their part of the agreement, would be to decide that ship builders were the only class in community not free to make lawful contracts; and it would be to destroy the business of ship building in the manner here adopted — a mode at once completely just, and equally beneficial to owners and mechanics. 'We do not believe the law to be so; and we have the utmost confidence that the court will not so decide.
    If it be said that there may be danger under such agreements, that the common laborer may not get his pay, we answer that there is the same danger in all other cases; he is not bound to work, and may take measures to secure himself; and besides the lien law provides him with a remedy equally efficient for him, and just to all the other parties. Indeed, in our judgment, that law furnishes evidence nearly conclusive, against this case. For that it affords a remedy at all, shows the absence of any other remedy; it shows that there may be cases in which one man may own a vessel, and another may contract to do work upon it, and fail to pay his workmen, and in which these workmen have rib remedy under the watercraft law. To give them such a remedy, and to place them on the same footing with house carpenters, could have been the only object entertained by the legislature in providing for them; for the provision was worse than useless, if they already had a better remedy under the watercraft law.
    In Treat v. Canal Boat Etna, 16 O. R. 276, 15 Ibid. 585, two of the three judges who participated in the decision held, that until the delivery of the boat under the agreement, Treat, the builder, was the owner. From this it was concluded that Treat could not proceed under the statute, although it was admitted that the workmen might. But that case was very distinguishable from this. There the agreement contained no provision vesting the property in Griffith, Standart & Co.; and it was not delivered until completed pursuant to the agreement. Here the property Avas vested in Lewis & Beardsley, from the commencement, by the agreement itself; and the vessel was delivered before the debt accrued. Treat v. The Boat Etna, would be an authority to show that Lewis & Beardsley could not recover under the statute for advances, because the vessel was their own, and they could not sue themselves. It would be an authority also to shoAV that Arnold could recover under the statute, unless prevented by the terms of the special agreement, because his debt was contracted with the owners. But this is the extent of the decision, and no other point is conclud • ed by it or by any of the dicta of the judge founded on any fact in the case. And there is nowhere any decision or remark of the court to warrant the idea that the under workmen, or sub-contractors, or material men, who deal only with the contractor, have any right to proceed against the vessel unless the contractor himself be the owner. On the contrary, although there is no reported decision upon the point now made, yet in all the cases which have arisen under the statute, there is, in the opinion delivered, a strong implication, and in some there are express declarations, that the debt must appear to have been contracted on account of the vessel, and by the owner, or by some one standing in his place.
    The case of Southwick v. The Packet Boat Clyde, 6 Black. R. 148, is, we think, a strong case for us. It decides, indeed, the very point .in question. It decides that the person who builds a boat, “ agreeably to his contract with the owner, has a lien on the boat, under the statute, for the price, whether he has paid the workmen that assisted him and were employed by him or not; hut the workmen so employed hy the contractor have no such lien for their wages.” The statute of Indiana, under which the case arose, so far as the present question is concerned, is almost in the very words of our own; and the decision is at least entitled to respectful consideration. It was remarked, indeed, by the court on the circuit, that there was this substantial difference between the two statutes: that in the Indiana statute the words “ or other agent,” are entirely omitted. But we submit that this objection is altogether aside from the point to which we cite the decision as an authority. If Arnold was an agent, the liability of the vessel, under our statute, is conceded. But in the entire absence of any evidence of an agency, he is to be viewed simply as a contractor, and Southwick v. The Packet Boat Clyde is an authority to show that in that character he possesses no authority to bind the vessel for the payment of debts contracted by himself, and for which he alone is liable. It decides also that the contractor may proceed under the statute, and so far it would appear to be opposed to Treat v. Canal Boat Etna, if the facts were precisely the same. But the facts are not given in the report, and it is fair to presume that they were such as to show the property to have been in the purchaser, as in this case they show it to have been in Lewis & Beardsley.
   Spalding, J.

A majority of the members of this court find no difficulty in pronouncing the law, arising upon the facts in this case, to be with the plaintiff. Indeed, it appears to us that the whole question involved in the present controversy, has been twice, virtually, decided here.

In Canal Boat Etna v. Treat, 15 Ohio Rep. 585, the late Chief Judge (Birchard), in giving the opinion of the court, that Treat, who had built the boat under a contract with Standart, Griffith & Co., had no lien thereon, after delivery, for the.contract price, says: “A transfer-by Treat to any person, or under any circumstances, without notice of those debts, or the assent, expressly or tacitly given by them, would not have prevented Standart, Griffith & Co., or the hands that labored upon the boat, in assisting to build her, from attaching and, selling her under the statute, to satisfy their claims. The object of the act .was to provide a remedy for those who otherwise might be defrauded, hindered or delayed in collecting their just claims, and to save them the inconvenience of seeking out the owners, and subjecting them to the payment of the debts contracted by their authority.”

And afterwards, when the same case was reviewed by this court, Treat v. Canal Boat Etna, 16 Ohio Rep. 276, my learned associate, Judge Avery, who took no part in the first decision, when affirming the same, takes occasion to say: “ But we think that a suit for materials or labor would Jie against the builder; and that it could clearly be maintained, under this statute, against the boat, in whatever hands she 'might be found. Upon this last point, neither the language nor meaning can admit of any doubt.”

It will be found that, in both instances, Read, Judge, dissented. But he differed in opinion with the other judges, in this only: that he construed the statute as giving a lien upon the boat to the master builder, who contracted to deliver her, when finished, to Standart, Griffith & Co., as well as a lien to the common laborers and material men.

It is proper to remark also, that the present chief judge, who does not acquiesce in the opinion which I am instructed to pronounce, took no part in deciding the case of the boat Etna, having been of counsel for the plaintiff.

The act of 1840, upon which this suit is founded, although somewhat objectionable for- its want of precision and clearness, is nevertheless an honor to our state legislation Our statute books are filled to overflowing with enactments in aid of individual and associated wealth. Our books of reports teem with adjudications necessarily tending to “ make the rich richer;” but instances are rare where the wants of him “ who earns his bread by the sweat of his brow,” are humanely cared for by the law-making power; or where the rights of labor have borne unquestioned competition with privileged capital, in the judicial forum.

The act which we are considering, was intended to secure to honest industry the fruits of its hard earnings, against either the fraud or failure in business of all such as might put it in requisition.

It is a statute of so highly beneficial a character, as to justify a court in giving to its construction the most liberal intendment to carry out its objects.

It provides that steamboats and other watercraft, navigating the waters within or bordering upon this state, shall be liable for debts contracted on account thereof, by the master, owner, steward, consignee or othe? agent, for materials, supplies, or labor, in the building, repairing, furnishing, or equipping the same,” etc.

And it further provides that “ any person having such demand; may proceed against the owner or owners, or master of such craft, or against the craft itself.

It surely requires no stretch of ingenuity to bring the claim of plaintiff within the intendment of this act. It does, in fact, fall naturally within its letter.

The claim is for a debt accruing to the plaintiff, for labor performed on the brig Andes, a watercraft, in the building thereof.

But it is insisted, by counsel for defendant, that the labor was not performed “ on account of” the vessel, but “ on account of” Arnold, who took the contract to build the vessel; and that the words in the statute are equivalent to “ on the credit of; ” and that where the evidence shows that credit was not given to the craft, the case is not provided for by the statute.

The construction asked for by counsel, would render the statute, in most cases, of no effect. There would not be found more than one instance in one hundred, where the individual performing labor on a vessel, or furnishing materials for her construction, would give the credit, in the first place, to the vessel herself; and if he did, where would the proof come from ?

The mechanic or material man necessarily makes his contract with some person who acts in behalf of the vessel, and has an interest in her construction. This may be the ultimate owner, the contemplated master, or “ any other agentf who controls the whole or any portion of the work. It may be a contractor or a sub-contractor.

This is not, however, a sensible interpretation of the statute. The language is, that “ steamboats and other watercrafts shall be liable for debts contracted on account thereof by the master, owner,” etc. Is it for a moment to be supposed that the master or owner of a vessel would hire a ship-carpenter to flank the deck, or perform any other work necessary to be done in building and repairing vessels, and at the same time tell the mechanic that he is to work, not on the credit of his employer, but on the credit of the vessel itself ? The idea seems most preposterous. The plain and obvious import of this language in the statute is, that the watercrafts shall be liable for debts contracted in and about themselves, either in putting them together originally or in repairing them afterwards.

It is insisted further, that Arnold was neither one of the persons enumerated in the first section of the statute, as competent to render the vessel liable.

It would appear to the court, from an examination of the contract exhibited between Arnold and Lewis & Beardsley, that it was contemplated quite early in the transaction that some of the under contractors or day-laborers would be wronged out of their wages — for it was stipulated that “ the vessel, frame and materials should remain in the possession of Lewis & Beardsley as fast as got out or put together.”

And this is said to be stipulated as a guaranty that the vessel should be finished. It is more reasonable to suppose that Lewis & Beardsley felt that they were dealing with an irresponsible man, and, that they might be secure in their advancements, they stipulated for the ownership and possession of the vessel from the laying of the keel upwards; and the incautious laborers were notified in writing, that they must not look to the work of their own hands for their pay.

From their abundant caution in the matter, Lewis & Beardsley have brought themselves most clearly within the meaning of the statute, as the owners of the Andes, when the labor was performed therein by the plaintiff; and if the vessel should not sell for enough to pay the debt, they would, within our jurisdiction, be compelled to make good the deficiency.

At all events, it is adjudged by this court, a majority concurring, that for labor performed upon a watercraft in Ohio, the craft is made liable by our statute, no matter at whose instance the labor be performed, so that the contracting party have, at the time, the rightful control of the craft, or of that portion of the craft on which the work is expended. And this liability will adhere to the craft, no matter through how many hands she passes, until the debt be paid, or the lien-holder relinquish his claim.

It is said by the court in Missouri, where they have a lien law like our own, “ purchasers must exercise ordinary diligence, and, knowing that boats and vessels are subject to liens, notwithstanding they are out of the possession of those entitled to the liens, they should indemnify themselves against losses which may be caused by their existence.” 9 Miss. Eep. 68.

The case of Southwick v. The Packet Boat Clyde, 6 Blackford’s Rep. 148, is cited by counsel for defendant, as a counter decision upon the construction of a similar statute.

We hold the decisions of a sister state in high respect, and have therefore examined the statute of Indiana with care. We find that, by the law of that state, boats and vessels are liable only for such debts as may be contracted by one of three individuals : master, owner, or consignee.

The claim of Southwick did not arise under a contract made with either of these, and the court ruled that it was not a lien. Possibly we might have brought our minds to a different conclusion under that statute.

It is claimed, also, that the plaintiff has an appropriate remedy under the act of 1843, “ creating a lien in favor of mechanics and others in certain cases.”

We have no doubt that he might at one time have had a concurrent remedy under this last named act. That is, he might have transmitted his account for work on the brig, to the owners at Oswego, in the State of New York, and if afterwards he could have found these owners within our jurisdiction, he might have compelled them, perhaps, to pay the amount, they being required by the law to withhold the sum due the laborer from the amount stipulated to be paid the contractors.

But it is only necessary to state' the facts in the case before the court, to show the utter folly of attempting to build an argument upon the law of 1843. That law can only be made effectual to secure the claim of mechanics where all parties live within our jurisdiction. Besides, this last statute contemplates a claim and a judgment against the person. The proceeding? under the act of 1840 are mainly in rem.

Judgment reversed.

Hitchcock, C. J.,

dissenting. Dissenting as I do, from the majority of the court in the decision of this case, it is prope7 for me to state the reasons why I thus dissent. The case itself is of but little consequence, so far as the amount in contro versy is concerned, but it seems to me that an important prin ciple is involved, and that the principle of the decision, if adhered to, will in many cases operate to work out manifest in justice. But for this, I would have been satisfied with a mere silent dissent.

So far as I have had any experience in the court, no case like the present has ever been presented for consideration. Many cases under the law “ providing for the collection of claims against steamboats,” etc. (Swan’s Statutes 209), have been presented, but in no one of them, according to my recollection, has the question, upon the determination of which this case should be mad'e to turn, been agitated.

In order to a correct understanding of the case, it is necessary to be particular as to the facts as disclosed in the bill of exceptions.

From the bill of exceptions it appears that on the 15th day of October, 1846, an agreement was made and entered into between Lewis & Beardsley, of Oswego, in the State of New York, and Joseph Arnold, of Toledo, in the State of Ohio, by which Arnold agreed to build for Lewis & Beardsley a vessel hull, at said Toledo. This contract is made a part of, and is attached to, the bill of exceptions. The work was to be completed by the 4th day of April, 1847, and the price to be paid, twenty-four dollars per ton, custom-house measurement.

A vessel was built pursuant to this contract, was square rigged, called the Andes, and is the defendant in this suit. The contract price for the building was paid by Lewis & Beardsley, and whatever else they may be compelled to pay, is in addition to that which they agreed to pay, when the contract was made.

Now the question properly arises, under this contract, as to the ownership of this vessel while she was building. I am aware that there is some difficulty, and perhaps doubt upon this subject. The general rule undoubtedly is, that where a ship-builder undertakes by contract to build a ship for another, ¿he craft remains the property of the builder, until after delivery. But this rule is subject to exceptions. Where the person for whom the ship or vessel is building, can, by the contract, compel the delivery of the very ship or vessel in the course of construction, where the builder w'ould not fulfill his contract by the delivery of another craft of similar dimensions and of similar build, I suppose it may with propriety be held, that the ownership of the person for whom the craft was built attaches as the work progresses.

In the case before the court, the agreement between the par ties to this contract is, that so fast as the work progresses, the parts of the vessel, the materials, everything, is to be consid ered as in possession of Lewis & Beardsley. The materials are to be furnished as paid for by them during the progress of the work. They have the right secured to them of directing in some particulars, at least, in what manner the work shall be done. They are the owners, employing Arnold to do the work. It is to be done for. them. A part of the payments are to be made as the work is going on; and the balance within a limited period after it is finished. It seems to me that this contract is within the rule established in the case of Woods v. Russel, (5 B. & A. 944,) and that Lewis & Beardsley may be considered as the owners while the work was in progress.

But in the view which I take of the case, I am not aware that it is very material whether Lewis & Beardsley are considered as the owners of this vessel, at the time the cause of action is claimed to have occurred, or whether at that time Arnold, the builder, was the owner.

The bill of exceptions further shows, that Arnold, while in possession of the vessel and building -the same, entered into a contract with one James W. De Neal, by which De Neal agreed to plank the deck of said vessel. In the month of January, 1846, the plaintiff performed sixteen days labor in planking the vessel, and this work was done by the plaintiff while in the employ of said De Neal.

Erom this state of facts it is apparent that if Lewis & Beardsley were the owners of this vessel, while she was building, Arnold was contracted to do the entire work; De Neal was a sub-contractor under him, to plank the deck, and the plaintiff a laborer under De Neal, and in his employ. If Arnold is to be considered the owner of the vessel, then De Neal was a contractor with him to plank the deck, and the plaintiff a hand in the employ of De Neal, to do a part of this work. There can be no reasonable pretense that there was any contract, or priority of contract between the plaintiff and Lewis & Beardsley, or between the plaintiff and Arnold.

The facts already stated show that Webster, the plaintiff in this case, performed labor upon the deck of the brig Andes. But for whom did he perform that labor, in whose employ was it done, and who was indebted to him for it ? The case shows that the work was done by him as the hireling of De Neal, and in the employ of De Neal. His interest was with De Neal, and in consequence of the labor by him performed, he became the creditor of De Neal. If the debt was not paid he would have had a right of action against De Neal. I employ a man to build for me a house, for which I agree to pay him a specified price; and in performing his contract, he employs others to labor for him,- can those laborers look to me for their pay ? I apprehend not. They must enforce payment from him with whom they have contracted, and for whom the wo2\k is done. Now I do not apprehend that any one will say, that by any principle of common law, this plaintiff would have maintained an action, either against Lewis & Beardsley, or Arnold, whichever of them may be held to be the owner of this vessel. De Neal, and De Neal alone, was the debtor of the plaintiff so far as any matter of contract is concerned, and he alone would, at common law, be liable to an action.

We have a statute which provides that no one shall be answerable, upon a promise to pay the debt of another, unless that promise is in writing; but by the decision of the court in this1 case, Lewis & Beardsley are compelled to pay the debt of DeNeal, although they have made no promise to do it, either in writing or otherwise.

This suit is brought against the brig Andes by name, under the act of the 26th February, 1840, entitled “ an act providing for the collection of claims against steamboats,” etc., before-referred to. As, according to my apprehension, a case is presented in which it is attempted to extend the provisions of that-statute beyond what has been heretofore done, it seems necessary to examine it with some particularity.

The first section of this act provides, (Swan’s St. 209,) “that steamboats and other watercrafts, navigating the waters within, or bordering upon this state, shall be liable for debts contracted on account thereof, by the master, owner, steward, consignee or other agent, for materials, supplies or labor, in the building,, repairing, furnishing or equipping the same, or due for wharf-age ;. and also for damages arising out of any contract for the transportation of goods or persons, or for injuries done to persons or property by such craft; or for any damage or injury-done, by the captain, mate, or other officer thereof, or by1 any' person under the order or sanction of either of them, to any person who may be a passenger or band on such steamboat or1 other watercraft, at the time of the infliction of the injury.”

This section declares that the steamboat or other watercraft “ shall be liable for debts,” etc.; but it only makes the craft liable for such debts as the owner himself would be liable for. So far as any matter of contract is concerned, no new liability is created. It may be otherwise with respect to torts. But in this case we have to do with contracts alone. And so far as-these are concerned, the law declares that the craft “ shall be liable for debts contracted by the master, owner, steward, consignee, or other agent, for materials, supplies or labor, in the building, repairing, furnishing, or equipping the same.” At ■common law, the owner of the craft would be liable for all debts thus contracted, for the purposes aforesaid. The master, the steward, the consignee, are his agents, and so long as they act within their respective agencies, he must be bound.

And the owner of a vessel may, and generally has other agents, as well as those named, by whose contracts he would be bound. It is, as it seems to me, clear, that it was not the intention, by this act, to create any new liability. I infer this from the act itself; and I suppose this act, like every other statute, is to be construed by the language used.

In addition to this, it may well be said that any other construction would lead to manifest injustice. For it is certainly unjust that the property of any man should be sacrificed for the payment of debts for which he was not himself liable. That such injustice will sometimes be done, under this law, cannot be denied; but it should be avoided as much as possible. It can never take place except Avhere the debt, attempted to be ■enforced, accrued previous to the transfer of the boat or craft.

It may be asked, if such be the fact, if no neAV liability is created, why was the laAv enacted ? This question is answered by this eoAirt in the case of Canal Boat Huron v. Simmons, 11 Ohio R. 460. The court there say, “ The mischief intended to be remedied was, the difficulty of collecting debts due from the owners of boats, for articles furnished for their use,” etc. Debts due from theowners ” of boats, not due from other persons, were in the contemplation of the general assembly; at least, so thought the court, in deciding the case referred to. And as the owner in many cases could not at all times be readily found, or might be at a distance, a proceeding against the craft, by name, was authorized. The effect of this legislation was to give a new remedy, not a new cause of action; at any rate, such is the case so far as contracts are concerned.

That such was the intention may be further inferred from the second section of the act. This section provides “ that any person having such demand, may proceed against the owner or owners, or master of such craft, or against the craft itself.”

I have attempted already to show that the plaintiff in this case could not have an action against .the owners of this vessel, for the reason that they were not his debtors. De Neal was his debtor, not Lewis & Beardsley, nor Arnold.

. There is some difficulty in giving a sensible construction to this last section, so as to make it comport with our ideas of justice. I think we will be compelled to depart a little from the letter, in order to arrive at the true intent of the legislature. It can hardly be supposed that it was intended to give an action against the master of a boat or vessel, for work performed during the building of the same, and before he had any connection with it; nor that the owner would be liable to an action for an assault and battery, committed by a petty officer of the craft upon one of the hands. Such may be the meaning of the law; but if it is, it establishes a hard rule; and no statute, establishing such a rule, should be extended, by construction, beyond its literal meaning. Probably the meaning is, where the owner is liable, you may proceed against him or the craft, at election ; and so in cases where the master is liable, as well as the owner, the suit may be against him or against the craft. This, however, is foreign to the question now before the court, except so far as it may lead to the adoption of some rule of construction applicable to this act.

The act itself, is in derogation of the common law, well enough, perhaps, when it is applied to cases within its obvious meaning, deleterious in its consequences, when, by construction, it is extended to cases not within that meaning.

So far as this case is concerned, the claim of the plaintiff is for labor performed in the building of the vessel. Of course it is only necessary to inquire how far the vessel itself is liable to the laborer. The provision of the statute is, that the craft “ shall be liable for debts contracted on account thereof, by the master, owner, steward, consignee, or other agent, for materials,, supplies or labor,” etc. She is liable, then, for debts contracted by five descriptions of persons. In order to render hei liable, the debt must be contracted either, first, by the “ master,” or, second, by the “ owner,” or, third, by the “ steward,” or, fourth, by. the “ consignee,” or, fifth, by some “ other agent.” This is the provision of the statute, and if the debt is contracted by any other person, the craft is not liable. Here is no common law right. At common law, a debt arising out of a contract, either for labor or materials, could only be enforced against the person. But, as before stated, the owner would be liable for labor performed upon, or materials furnished on account of his vessel, where the labor or materials had been furnished pursuant to a contract made with himself, or the master, steward, consignee, or other agent, by him constituted. Such persons are all his agents ; and, as their principal, he would be bound by contracts by them made, within the limits of their respective agencies.

The legislature having thus prescribed with whom the contract must be made, in order that the debt, accruing under that contract, may be enforced against the vessel or other water craft, it is proper for us to inquire whether the debt sought to be enforced in this case, is within that provision. With whom did Webster contract to do the work which he performed, and which work is the consideration of the debt which he now seeks to enforce ? To whom did he give the credit ? The bill of exceptions answers the question. It is therein stated “that said labor was done in the employment of James W. De Neal, in pursuance' of a contract which he had then and there entered into, to plank the deck of the defendant aforesaid, with Joseph P. Arnold,” etc. According to this statement, the work was done for De Neal. The credit was given to him. Will it be said that it was done “ on account of,” or on the credit of tl:e vessel ? There is nothing in the case upon which to predicate any such assertion. Nothing from which any such inference can be drawn.

Now who is James W. De Neal, with whom and in whose employment Webster, the plaintiff, performed the labor? Is he the “ owner ” of the vessel ? It will not be pretended. Is he the “ master ?” No; for, at the time, there was no such officer or agent. Was he the “ steward ?” Most surely not. Was he the “ consignee ?” There is no evidence of it. Was he any “ other agent,” constituted by the owner, or by any one having authority under the owner ? I think it will not be said that he is. He certainly, then, is not in that situation that an individual must be in, in order that a debt contracted with him can be enforced, under this statute, against any description of watercraft.

But the case shows who and what he is. He is merely a sub-contractor under Arnold, to do a portion, of the work upon this vessel. The work which was done by the plaintiff, was •done for him, and upon his credit. And now, by the judgment ■of this court, this debt, due from De Neal, is to be paid by the owner of the vessel, upon which the work was done; although that owner has, as the case shows, paid for the vessel to the uttermost farthing, the contract price for which he procured her to be built. This may be in accordance with the strict rules of justice, but my perceptions are so obtuse that I cannot perceive it. True, the laborer is worthy of his hire,” but I know of no rule of morals or in law, which will require of him. who has not employed the laborer, to pay that hire.

It has, however, been sometimes said, that a sub-contractor under him who has the original contract to build a vessel or other watercraft, may, by construction, be held to be that “ other agent ” spoken of in the statute.

Can this position be sustained ? It seems to me not. The agent here spoken of is an agent of the owner of the vessel. The phraseology is, “ master, owner, steward, consignee or other agent.” The master, steward and consignee are all agents, to a cqrtain extent, of the owner, constituted by him or under his direction, and empowered by him to act, and certainly this “ other agent” must be of the same character. A “ ship’s husband ” is an agent of the owner of the ship, and in almost-every port frequently visited by a ship, will be found some agent to attend to her concerns in that port. In our western ports we find many of this description of agents, and in common parlance, they are called the agents of the particular crafts to whose concerns they attend. Neither a steamboat nor any other watercraft, however, can appoint an agent. Although our steamboat law, as it is called, authorizes any watercraft to be acted upon, it does not give that craft vitality to act. All these agents are creatures of the owner of the craft, deriving their authority mediately or immediately from him. He is the principal, they the agents. , To settle the question whether He Neal, the sub-contractor under Arnold, provided Arnold is to be considered as the builder merely of this boat, is the agent of Lewis & Beardsley, so as to bind them by his contract, it is only necessary to put a hypothetical case. A, being desirous to build a house, employs B, a master builder, to do the work for him, and to furnish the material, for which A is to pay to him a specified price. Does B thereby become the agent of A ? and can he bind A to pay to a person who shall furnish materials to B to put into the house ? Or can he bind A to pay the laborers, which he himself shall employ to assist him in laboring upon the building ? If under such circumstances B could be held to be the agent of A, and could bind A to pay for materials which he himself should purchase, and to pay the laborers which he himself should employ, then indeed can De Neal be considered as the agent of Lewis & Beardsley or of Arnold, whichever of them was owner of this vessel, while building; otherwise he cannot be so considered.

The case of Treat v. Canal Boat Etna, has been cited as an authority in favor of the plaintiff in this case. That case was first before this court in 1846, and reported in 15 Ohio R. 585. It was again before the court in 1847, and it is reported in 16 Ohio R. 276. It may be remembered that at neither term when this case was before the court, was the decision made by a majority of the. court. It was decided by two judges, against the opinion of a third, one member of the court taking no part in the deliberations or decision. But if I can understand the language used by the judges who decided that case, they entertained precisely the same opinion which I now entertain and have expressed.

The case was this: Treat, under a contract with Standart, Griffith & Co., had built for them two canal boats, at a certain stipulated price. Of these boats the Etna was one. The Etna was delivered 24th April, 1841, and the other, called the Hope, on the 4th of May, in the same year. Payment was to be made not in hand, but as the boat earned the money. Standart, Griffith & Co. continued to make payments from time to time until March, 1843, when they failed, and on the 8th of June of the same year Treat commenced proceedings against the boat Etna, for the balance still due. The question, and the only question, decided by the court at each term the case was before-them was, whether Treat, or Standart, Griffith & Co. were the-owners of the boat, before the actual delivery by Treat to said Standart, Griffith & Co. The court held that until the delivery the property of the boat was in Treat, and that such being the fact, he did not bring himself within the law authorizing proceedings against watercraft by name. This question of ownership was the great question raised, and that being determined the whole case was disposed of. If this proceeding had been, by Arnold, builder of the brig Andes, against the Andes by name, to recover the contract price of the vessel, it would have been like the case of Treat against the canal boat Etna. But this is not a proceeding by Arnold the builder, but Webster, laboring on the brig, in the employ of De Neal, a sub-contractor under Arnold.

But although the cases are unlike, it may be useful to refer to portions of the language of the court, as showing the opinions at that time entertained with respect to the law. When the case was first decided, the court, after stating that the claim was for materials, supplies and labor, say, “ The statute makes the boat liable for such debts, when contracted by the owner, on account of the boat.” And again, .“ The statute pre-supposes that the person having a demand, for work, labor and material against a boat, has a right of action at the same time, and co-extensive therewith, against some third party as owner of the boat.”

The judge who delivered the opinion of the court, when the case was again presented, announces expressly that a majority of the court are still of the opinion “ that Treat was the owner of the boat while it continued in his possession.” And he seems, in some measure at least, to have been brought to this conclusion, from the consideration that a purchaser of a boat, after she was bult, would not be liable “ for the debts contracted on account of the boat, to persons who furnished the timber and materials for the boat, or to the persons who were hired by the boat builder, to aid in building it1.” Treat was the boat builder, who purchased the timber and materials, and hired the laborers. If he was held to be the owner, then the material men and laborers were safe, because they had contracted with the owner. “ But,” says the judge, “ we think a suit for materials or labor, would lie against the builder, and that it could be clearly maintained, under • this statute, against the boat, in whatever hands she might be found. Upon this last point, •neither the language nor meaning can admit of any doubt.”

Now this is all sound law as applicable to the case then un•der consideration, and I do not suppose that it was intended to be applied to any other case or state of case. The court had ■already decided that Treat, the builder of the boat, was the owner until she was sold and delivered to Standart, Griffith & •Co.. It followed then, as a matter of course, that the material men or the laborers who had contracted with this builder, and owner, might have an action against that builder, and no private sale or transfer of the boat, could deprive them of their remedy given by the statute. But all this is far from saying that a man who has furnished materials or performed labor, upon a contract with one who is neither “ master, owner, steward, consignee or other agent,” can have redress under this statute. The principle which now seems to be adopted is, that he who labors upon a watercraft, may enforce payment under the statute, whether he has contracted with the owner or a stranger, or whether he has labored of his own free will and without any oontract or employment at all.

The case of Southwick v. Packet Boat Clyde, 16 Blackford 148, is a case in point in the ease now before us. The law of Indiana is not materially different, although somewhat variant, from our own. In that case, the court held “ that a person who builds a boat agreeably to his contract with the owner or master, etc., has a lien on the boat for the price; but that the workmen employed by him have no lien — and further, •that it makes no difference whether he has or has not paid those workmen.”

Such, it seems to me, is the obvious intent and meaning of our own statute. My brethren think otherwise, and I would have submitted in silence, but for the principle involved, and ■the consequences which may follow the decision. One of those consequences is, that an individual who undertakes to procure for himself .the building of a steamboat or other watercraft, may be compelled to pay for the same three times or more, before he can hold it unincumbered. Especially will this be the case, if he attempts to procure the building of the same by contract. He must first pay according to his contract to the original contractor. He may next be compelled to pay the claims of all the sub-contractors. And after all this, under the present decision, he is made liable to the respective laborers, laboring in the employ of the sub-contractors. All this is effected, as it seems to me, not by giving to the statute its plain and obvious meaning, but by giving to it a forced construction.

It seems to be considered by a majority of the court, that the decision of this case is peculiarly favorable to the, laborer. But it seems to me that this is a mistake, and that no decision •could be more unfavorable to the laborer than is the one now made. It must be injurious to the whole ship building interest in the state. Men will not contract for the building of any kind of v/atereraft within the state, vihen it comes to be understood that we have a law which gives to every sub-contract- or and their hirelings, a lien upon the vessel, and that the owner cannot enjoy the property for which he has paid, without paying for the same over and over again. Prudent men will not, by their own act, place themselves in this situation. Steamboats and other watercrafts will continue to be built, but they will not be built within our limits. And if Ohio laborers desire to engage in such kind of work, they must go to other states to seek employment. Such will be the natural, and as I believe, the inevitable consequence of this decision.

That this decision does not carry out the intention of the law-making power, is perfectly evident from subsequent legislation.

On the 11th of March, 1843, the general assembly passed an act to create a lien in favor of mechanics and others in certain cases.” In the first section it is provided, “ That any person who shall perform labor, or furnish materials, or machinery, for constructing, altering or repairing any boat, vessel or other watercraft, or for erecting or repairing any house, mill, manufactory or other building or appurtenance, ly virtue of a contract or agreement with the owner thereof, shall have a lien to secure the payment of the same, upon such boat, vessel or other watercraft, and upon such house, mill, manufactory or other building or appurtenance, and the lot of land upon which the same shall stand.” Ohio L. vol. 41, p. 66.

This section creates a lien, only in favor of a person who has performed labor or furnished materials “ ly virtue of a contract or agreement with the owner thereof..” That is, the owner of the building, boat, vessel or other watercraft, upon which the lien attaches. This is clear and explicit, and I suppose no one would attempt to extend it by construction. But it is no more clear, no more explicit, than is the first section of the act allowing proceedings against steamboats or other watercraft by name, where this latter act defines or declares for what debts the boat or other watercraft may be seized. It is for debts contracted on account thereof, by the master, owner, steward, consignee, or other agent.” Why should one of these laws be held to apply only to labor performed under a “ contract with the owner,” and the other held to apply to debts contracted by other persons than those mentioned in the act itself ? I can see no reason for the distinction in the provision of the acts themselves, nor in the nature of the case.

This lien law furnishes additional security to one who performs labor upon a boat or vessel, under contract with the owner, over, above and beyond that which he possessed under the act “ authorizing proceedings against steamboats or other watercraft by name.” Under this latter act he had no lien, strictly so called, until the craft was seized by virtue of process. But under the lien law, if he files his account as provided in the seventh section of the act, his lien attaches for the period of two years from the commencement of the work.

The second section of this lien law provides for another class of cases. It is as follows: “ every mechanic, or other person, doing or performing any work toward the erection or repair of any house, mill, manufactory, or other building, or appurtenance, or the construction, alteration, or repair of any boat, vessel, or other watercraft, erected under a contract between the owner thereof and builder, or other person, whether such work shall be performed as journeyman, laborer, carman, subcontractor or otherwise, or any person who shall furnish materials for the construction of such building or vessel, whose demands,' for work so done, or materials furnished, has not been paid and satisfied, may deliver to the owner of such building or vessel an attested account of the amount and value of the work and labor thus performed, or the materials thus furnished, and remaining unpaid; and thereupon such owner shall retain, out of his subsequent payments to the contractor, the amount of such work and labor, for the benefit of the person so performing the same.”

The next succeeding four sections are upon the same subject and point out the manner in which the amount due to the laborer is to be ascertained; and authorize the owner to pay this amount, and to claim a credit for the payment upon his contract with the builder ; but in' no event is the owner bound to pay one cent beyond what he is indebted to the builder, unless that indebtedness has been reduced by payment made subsequent to the presentment of the account, or unless it has been reduced by payments made in advance collusively. The claim of the plaintiff in this case is within both the letter and spirit of this provision, and had his account been presented to the owner in due time, he might have secured his pay.

It will be seen, that the persons whose claims are provided for in these sections have no lien, nor can they in any event have a lien upon the “ building, boat, vessel or other watercraft,” upon which the labor is performed. It is a different class of claims which attach as liens. And it will be further seen, that under these sections, no injustice can be done. The owner is not compelled to pay anything beyond the contract price of the building, whether that building be a house, boat, vessel or other watercraft. But this contract price he may pay to those who have performed the labor, and for such payments must have credit upon the contract. It is a just, equitable and fair law, in which respect is had to the rights of all concerned.

Now if the general assembly supposed the class of creditors provided for in these sections of the lien law, had the power of proceeding under the law authorizing proceedings against watercraft by name, why were these sections of the lien law passed ? Certainly it could not have been done for the security of the class of creditors therein named. They were already provided with a remedy far more effective than the one herein provided ; a remedy it is true novel, and in its operation many times unjust, but still it was a sure remedy. The fact that this law of 1843, was enacted, is conclusive, to my mind, that the body enacting it, supposed that there was, previous thereto, no law protecting the rights of the class of creditors named in the sections referred to.

Upon full consideration, I am of opinion that the court of common pleas decided in accordance with the law, and that the judgment should be affirmed.


source: Caselaw Access Project

author: Caldwell, J.

license: Public Domain

text:
    John Barton v. The State.
    Counts for horse stealing and grand larceny of other property may he joined in the same indictment.
    Where on such indictment the jury find a general verdict of guilty, assessing the value of the property in gross, without finding the amount charged in each count, and the court enter judgment on such finding, such judgment is erroneous, and will he reversed on error.
    On the trial of such case, it is error to permit evidence to go to the jury for the purpose of proving that just before the defendant committed the act for which he is on trial, he committed another larceny.
    This is a writ of error to the Court of Common Pleas of Cuyahoga county.
    The plaintiff in error was tried in the court of common pleas of Cuyahoga county, on an indictment containing two counts; the first count charging him with stealing one gelding, of the value of sixty-five dollars, and one mare of the value of seventy-five dollars; the second, with stealing one two horse buggy wagon, of the value of seventy-five dollars, and one set of double harness, of the value of forty dollars.
    • The jury returned a verdict as follows: “ We do find that John Barton is guilty in manner and form as he stands charged1 in said indictment, and we assess the value of the property stolen, at two hundred and one dollars.” The defendant moved in arrest of judgment, but the court overruled the motion, and sentenced the defendant to three years confinement in the penitentiary.
    It having been proved, on the trial, on the part of the state that the defendant hired the property that he was charged with stealing, from the owners, Taylor & Adams, of Cleveland, for the alleged purpose of going to Avon, a distance of about 20 miles; and that, on leaving, he drove to Painesville, about 30 miles distance, in an opposite direction, and was arrested on the same night; the prosecuting attorney then called one James S. Everhart, and offered to prove by him that, on the night before the defendant drove off the horses, he had lodged with Everhart; that in the morning he left about daylight; that after he was gone, Everhart missed his money, which was about $25 in gold; and that after the defendant was arrested and brought back, Everhart called on him in jail, and told him he had stolen his money; that the defendant told him that the officer had it, and that he called on the officer and got it. The court asked the prosecuting attorney his object in offering the testimony, to which he replied, that he expected to prove that the defendant stole the gold, and the circumstances connected with it, for the purpose of showing that the prisoner, when he hired the horses, did not intend to return with them.
    The defendant objected to the admission of the evidence, •but the court overruled the objection, and permitted it to go to the jury, to which the defendant excepted.

      Jjynde $ Castle, for plaintiff in error.

      Henry Stanbery (attorney general), for defendant.
   Caldwell, J.

Several errors are assigned upon this record.

The first one ’which we propose to notice, is the objection taken to the indictment. It is said the indictment is bad, charging different offenses, horse stealing and grand larceny.

It is not, in general, objectionable to an indictment, that it contains charges, in different counts, of different offenses, if the crimes charged be of the same nature. In this instance, the ■offenses charged are of the same nature; indeed, they are both larceny. The distinction which has been created by statute, is only one of degree, the legislature treating larceny of horses as a higher crime than larceny of other property. The rule, I believe, is universal, that when offenses differ only in degree, they may, with propriety, be charged in different counts in the same indictment. The legislature, it is true, calls one a misdemeanor and the other larceny. Yet the language of the statute is the same in defining both offenses: if any person shall steal any money or goods, in the one case, and if any person shall steal any horse, etc., in the other. Both are alike governed by the rules of evidence and pleading applicable to larceny. A different punishment being affixed to these two kinds of larceny, they could not be charged in the same count of the indictment; if so, the count would be bad for duplicity. It would follow, then, as a consequence, if the charges of stealing horses and other property could not be contained in different counts of the same indictment, in a case such as the present, where the taking the horses and the other property was done at the same time, a party might be twice tried and punished for the same identical transaction. If they were separate and distinct offenses, that could not be joined; the record in one case would not be a bar to a prosecution in the other. We see no objection whatever to the mode of pleading adopted in this case.

Another error assigned is, the admission of evidence going to show that the defendant had committed a larceny the night previous to the day on which he is charged with committing this offense.

This, we think, was clearly erroneous. It is never admissible to prove that a person has previously committed a crime of a similar character, to show that he committed thfe criminal act for which he is on trial; and although the court, in this instance, say that the evidence was only admitted for the purpose of showing the intent with which the defendant got possession of the property, yet we do not see any connection between the two transactions, that would enable any legitimate conclusion to be drawn as to that fact. The only conclusion that we can see, that could be fairly drawn from the evidence, would be that the defendant intended to steal the horses and other property with which he was charged, because he was a thief, and had just before stolen a sum of money. '

Each case must be tried on its own merits, and be determin ed by the circumstances connected with it, without reference to the character of the party charged, or the fact that he may have previously committed similar crimes.

On the part of the prosecution, the general bad character of the defendant cannot be proved, when he offers no evidence of character; much less can particular acts of his be proved, of which the record gives him no notice, and which he, therefore, cannot be expected to meet.

The overruling of the motion of defendant in arrest of judgment, on account of the alleged defect in the verdict, is also assigned as error.

The verdict finds the defendant guilty on both counts, and assesses the value of the property stolen, in gross. On the first count, for horse stealing, it is only necessary that the property be of some value; on the second count, for grand larceny, the property must be of the value of thirty-five dollars ; and that fact must be found by the jury, before the court can give a judgment on it, sentencing the party to confinement in the penitentiary.

In this case, the court gave judgment on both counts — on the one for grand larceny as much as the one for horse stealing — and yet, the verdict does not inform them what was the value of the property stolen, that is described in that count: it may have been of less value than thirty-five dollars. It is not like the case of a judgment on an indictment containing some bad counts and some good, where the bad counts are treated as surplusage. In such case, the jury in finding their verdict, and the court in entering the judgment, are presumed to have only considered the good counts, the others having no legal efficacy. But here is a good count, on which the court have entered a judgment, sending the defendant to the penitentiary; and whether the amount of property stolen, charged in that count, was sufficient to authorize such a judgment, the record does not show.

Nor do we consider this objection as merely technical. A party has rights after verdict. He has a right to move in arrest of judgment, or to have the record examined by a court of errors.

If this verdict be good, and the judgment predicated on it be valid; if it should turn out that the count for horse stealing was bad, and the count for grand larceny good, that count would be a sufficient predicate for the judgment given in this case; and under the rule which we have stated above, a court of errors would presume that the judgment was given on the good, count only, when the fact might be that the property therein described was of less value than thirty-five dollars.

Other cases might be supposed in which a party might be prejudiced by this uncertainty of the verdict and judgment. We think, then, that in a case of this kind, the verdict should show the specific finding on each count, so that it might appear how far the judgment was sustained by each.

Judgment reversed.


text:
    Peter O’Conner and Marcus Dennison v. The State, for the use of Joseph Potter’s Adm’r.
    . An administrator de lemis non can maintain a suit against a former administrator for assets of tlie estate which, have come to his hands, and are not accounted for.
    A judgment obtained against the former administrator on such claim, is evidence against him and his sureties in a suit on his administration bond, and can only be impeached by the sureties, by proof of fraud or mistake.
    A general allegation in a declaration on an administrator’s bond, that he did not settle up the estate within the time required by law, and refuses to make settlement, is good. ,

      This is a writ of error to the Court of Common Pleas of Brown county.
    The principal facts in the ease are as follows: .On the 8th of May, 1838, Marcus Dennison was appointed, by the court of common pleas of Brown county, administrator, with the will annexed, of the estate of Joseph Potter, deceased. Peter O’Conner and William Middleton, who had deceased before the present suit was brought, became Dennison’s sureties, on his administrator’s bond. At the August term, 1841, of the court of common pleas in Brown county, the will of Joseph Potter was set aside by the decree of said court; and Dennison was at the same time removed from his office of administrator. At the October term, 1841, of said court, Russel Adkins, for whose use this suit is brought, was appointed administrator de bonis non. Adkins, as administrator, brought suit against Dennison, the former administrator, charging him with having a large amount of assets belonging to the estate in his hands unadministered; and at the November term, 1844, recovered a judgment for $513.53. Execution was issued on this judgment and returned indorsed, “ no goods.” Adkins then commenced the present action on the administration bond against Dennison and O’Conner, as survivors of William Middleton, ■deceased.
    In the declaration, two breaches of the bond are assigned. The first breach alleges in substance, that Dennison, as administrator., wholly neglected to settle up said estate; that although the court did not grant him further time to settle, he did not settle up at the expiration of eighteen months from the time he beeame administrator, but continued administrator without making any -settlement, and refused to make such settlement as provided by statute ; and that he still does refuse, etc. To this breach the defendant O’Conner plead nil debit. The second breach sets forth the facts above stated, connected with the administration and removal of Dennison; charges the receipt by .him of .a large .amount of goods and money belonging to the estate of Potter, which he never accounted for, and sets forth the judgment obtained against Dennison for such goods and money, the return of execution, etc.
    To this breach the defendant O’Conner demurred. The court overruled the demurrer, and in default of plea, gave judgment for the plaintiff.
    To reverse this judgment this suit is brought; the errors assigned being—
    1st. That the court of common pleas erred in overruling the demurrer.
    2d. That the court erred in giving judgment for the plaintiff.

      John- Joliffe, for the plaintiff O’Conner,
    Cited 3 Rawle’s Rep. 361; 5 Rand. Rep. 51; 1 Gill & Johns. Rep. 270; 1 Serg. & Rawle’s Rep. 549.

      David Gf. Devore, for defendant.
   Caldwell, J.

The principal objection urged by counsel to the proceedings of the court below is, that an administrator de bonis non cannot bring a suit against a former administrator; that the judgment against Dennison not being one that Adkins, as administrator, could bring, O’Conner was in no way bound by it; and that the second breach, without such averment of the judgment, would not be good. We are referred to a number of decisions which counsel contend establish the doctrine, that an administrator de bonis non cannot, in a case of this kind, maintain an action against the former administrator. In reference to this question we would merely remark, that on general principles, it would appear reasonable, that the administrator de bonis non, whose business it is to look after the effects of the estate, to collect the claims due to it, and pay the debts owing by it, and to marshal the assets for distribution, should have a right to prosecute a claim against a former administrator; but be this as it may, and be the decisions in other states what they may on this point, our legislature, as we think, has defi nitely settled the question. The statute of 1831, vol. 29, p. 235, under which the administration of this estate was commenced, provides for a suit, by the administrator who may be appointed in the place of any administrator who may have resigned, or been removed, against such administrator for any moneys, assets, rents or profits that may have been received by such administrator, as well as all damage done by such administrator to the estate. The present statute (Swan, 344) contains a similar provision. The second breach, we think, was well assigned, and the court of common pleas decided correctly in overruling the demurrer. The judgment against the administrator is prima facia evidence against the surety in the bond, and he can only impeach it by proof of collusion or mistake.

It has also been suggested in argument that the court erred in giving judgment on the first breach. Whatever question might have arisen as to that breach, had the defendant demurred, we suppose that, after plea and judgment, it is too late for him to avail himself of any such defect. We are of opinion, however, that the breach is well assigned. It is made the duty of the administrator to settle up the estate, and make his return to the court. The allegations are, that he did not settle up the estate, and did not make return to court according to the statute. The damage under it might be nominal; it would still be a breach of the bond.

We see no error whatever in the proceedings of the court of common pleas, and therefore affirm the judgment.


author: Avert, J.

text:
    The Town Council of Akron v. Joseph McComb.
    A municipal corporation, though acting within the scope of its authority, and without malice or negligence, is liable for injuries resulting to the property of individuals from its acts.
    Such corporation is liable, though there be no record or written evidence of the authority under which its agents committed the acts from which the injury resulted. Authority may be given to its agents by parol.
    Though the original proprietor, in his contract of sale, require the vendee to grade in front of his lot, whenever he may direct, it does not bar the vendee of his remedy against the corporation for injuries sustained by grading in front of it.
    This is a writ of error to the Court of Common Pleas of Summit county.

      Imcíus V. Bierce, for plaintiff in error.

      King King, for defendant.
   Avert, J.

The action in the court of common pleas was case, brought by McComb against the town council of Akron. The plaintiff in the action was the owner of a lot in Akron, upon which he had erected a brick house, and had fitted it up for the purpose of merchandizing. He had made his improvements with an express view to the level and grade of Howard street, adjoining which the building stood. After he had made his improvements, the town council caused the ground in front of his building to be excavated, and the street to be sunk several feet, in consequence of which, the value of his house and lot was greatly impaired.

The defendant put in the plea of not guilty, with notices of defense, of acting within their charter, etc.

When the action was first tried, a verdict was returned against McComb, the plaintiff, but the judgment on the verdict was reversed by a judgment of this court, reported in 15 Ohio Rep. 474, and the case remanded to the common pleas for further proceedings. On the trial before the common pleas, after the reversal, the charge of the court was in accordance with the principle established in the case by this court, and the verdict of the jury, and the judgment, were in favor of the plaintiff. After which, the defendant, in its turn, applied to the court to review its judgment, pronounced as above, and found in 15 0. R., when the judges allowed, in behalf of the defendant, the present writ of error. The judgment, it was claimed, had introduced a new doctrine in reference to corporations, opposed to the current of authorities, and of doubtful propriety; and further, it was not the unanimous decision of the court, the late chief judge, Birchard, who was at that time one of the members of the court, having dissented from the opinion of the majority. The judges, upon the application of the defendant, allowed the present writ of error, that an opportunity might be given for a re-examination of the case. Of the errors assigned, that which is deemed to be the principal and important one, grows out of a part of the charge to the jury, which is substantially as follows, to wit: that the town council of Akron would be liable to the extent of the real and substantial injury done to the plaintiff’s property, by its act in leveling the street, although acting within the scope of its authority, without malice and in good faith. If the doctrine established in 15 Ohio Rep. 474, is to stand, then there was no error in the part of the charge above referred to. That doctrine is, that a municipal corporation is liable for an injury resulting to the property of another, by an act strictly within its corporate powers, and without negligence or malice. The court had before determined (7 Ohio Rep. 214, Scovil v. Giddings and others,) that agents of a corporation could not be made liable for acts which were directed by it, if they were authorized by the charter. That was a special action on the case, for an alleged injury, committed by the defendants, acting under an order of the trustees of the town of Cleveland, for grading the streets of the town. They were not shown to have done any unnecessary damage, nor to have violated good faith while acting under the order. The court, by the determination in the case, protected the defendants; holding that officers, acting in good faith, under an authorized order of the town, are not personally liable for injuries done to individuals in such grading. No one can deny the correctness or propriety of that decision. If the town has power to cause the act to be done, and the agents perform it in strict accordance with a legal order, they cannot, of course, be made personally liable. But that determination left the injured party without remedy, unless he could have his action directly against the corporation, and by its name. The case of Rhodes v. The City of Cleveland (10 Ohio Rep. 159), supplied the remedy. That was an action on the case, for cutting ditches and water courses in such a manner as to cause the water to overflow and wash away portions of the plaintiff’s land. The court of common pleas charged the jury that the plaintiff could not sustain his action, unless he showed that the city acted illegally, or, if within its authority, that it acted maliciously. The Court in Bank, however, declared that the corporation was liable to answer in damages for a consequential injury, though not acting beyond its lawful power, and reversed the judgment of the common pleas. The decision in Rhodes v. The City of Cleveland was the first in the state which maintained the principle that, an action, sounding in tort, would lie against a municipal corporation by name, for an act done within the powers granted by its charter. And this was considered by the court as an authority for the decision in the case under review.It is, however, not the only authority to be found in support of the principle.

In Thayer et al. v. The City of Boston, 19 Pick. Rep. 511, the plaintiffs declared that they had a right of way over a pub-, lie street or passage in front of their building, and that the defendants took up the pavement in front of their buildings, dug up the earth, etc., by which they were injured. In this case, the principle is settled, “ that an action sounding in tort may be maintained against a municipal corporation, and that it may be made liable in an action on the case for an act which would warrant a like action against an individual, if such act is done by the authority of the corporation, or after the act done has been ratified by it.” The same court, in Stetson v. Faxon, 19 Pick. Rep. 147, makes use of this language: “ Let the city take all that is necessary, convenient and becoming this great and flourishing capital, but let compensation go hand in hand with the public benefit.” Among the cases cited by the Massachusetts court, is one from Maryland, Barnes and others v. The City of Baltimore, in which that court say, “ The defendants are trustees of public interests for their own benefit, and ought to answer as an individual to the person at whose expense they are benefited.” That a city or town should be clothed with sufficient power to accomplish all its useful and necessary objects, may be granted. It seems to be indispensable that a power should be given to it for the regulation of its streets; and in the exercise of such a power, injury to the property of individuals, amounting perhaps to a destruction of it, may become unavoidable. But when the public interest requires the sacrifice of private property, a very clear principle of justice requires also a compensation to be given for the injury.

The judgment which we are reviewing sanctions ,hat principle, and gives the compensation. It is not without support from that section in the constitution of the state, which holds private property inviolate, but subservient to the public welfare, provided compensation be made to the owner. The above section has come under the consideration of the court upon various occasions in its bearings upon the public improvements of the state; upon private companies authorized to engage in the construction of works of public interest, and upon city and town corporations. And in reference to them all, it is now maintained, that powers may be conferred upon them that are necessary to carry out the objects for which they were created; but when, in the lawful exercise of such powers, individual property must be taken, sacrificed or injured,, they will be held liable to the party injured, to make good his loss. If the act conferring the authority, provides itself the mode of rendering the satisfaction, that mode will be followed; if it points out nc course of proceeding, or if the remedy so provided is denied to the injured ‘party, he may still appeal to the court and find redress. ■ It will be perceived, therefore, that the. principle established by the case under review is just; that it is in accordance with the spirit of the constitution upon the point in controversy, and with other decisions of the court, as well as with the decisions of other courts upon the same subject. For the cause which has been under consideration, therefore, it will not be reversed. The writ of error in the case was allowed solely to give an opportunity to reexamine the error which has already been considered. For none of the other causes assigned would it have been granted. One of these causes is, that the court below ruled out the contract under which McComb received his deed. The contract with the original proprietor of the lot, required the original purchaser to grade in front of it whenever directed by the proprietor. If this contract was not canceled when the deed in fee simple was executed for the lot, still the power of the town council to grade the streets could not be questioned. The original proprietor could not reserve to himself the right to fix the grade in front of his lot; nor could he enforce an agreement made with a purchaser to grade the lot, in opposition to the orders of the town council.

Another cause of error, and the only remaining one which will be specially noticed is, that the court admitted parol evidence, in the first instance, of the acts of the town council. When this evidence was offered by the plaintiff on the trial and received by the court, no proof had been given that the acts existed of record, upon the boohs of the town. To exclude the evidence in such a case, would be to presume that the defendant had kept a record of the acts, and to decide that it could be excused from liability, by neglecting to put the proof of their acts on their book of proceedings. No such inference can be drawn in favor of the defendant. To give to it the protection sought, there must be evidence before the court that the acts to be proved exist in writing upon their record. Corpora tions are made liable in some cases, both upon their promises and for their acts, when there has been no record entry of either.

Judgment affirmed.