
    M'Elderry, et al. vs. Flannagan’s Adm’r.
    June, 1827.
    The jury .alone are competent to decide on facts of which contradictory evidence may be offered Before the court can legally give an instruc. tion to the jury, on the prayer of one ofthe parties, they must admit the ■ truth of th,e testimony offered by the other, and that also offered by the first, which may operate in his opponent’s favour, and the existence of ‘ all material facts reasonably deducible therefrom, even though contradicted in every particular by the testimony of him. who seeks the instruction. Upon no other principle can the case be withdrawn from the consideration of the jury.
    Where the extent and limits of property leased are not exactly defined by the contract under which a tenant took possession, and in an action to recover the rent, the tenant relied upon an eviction of part of the demised premises by a third person claiming under his landlord, as bar to its payment, the jury should look to all the facts in evidence, and from them determine the limits of the tenant’s lease, and whether there was an eviction or not.
    Where a landlord having leased property to one tenant, subsequently leases a part of the same to another, the first is under no obligation to resist the second by force in taking possession; and notice by the first to the second tenant, (after a distress levied by the landlord on the former,) that he should consider him his tenant, is nugatory and inoperative.
    -Joint property in the possession of one of the owners, may be seized and sold under a fieri facias against him only; and the purchaser’s right would be complete to the extent of the interest of him against whom the execution issued, and he might hold accordingly.
    Where F, a ship-carpenter, contracted with C to build him a sloop, for which C was to pay as the work advanced, ímd furnish all the materials and labour except what appertained to the ship-carpenter’s work, the Vessel being in F’s possession, not entirely paid for, and nearly finished, was levied on by the landlord ofthe ship-yard as a distress for rent— Meld, that F had an interest in the vessel to the extent of his carpenter’s •work not then paid for, liable to seizure and sale on process for the recovery of debts, or rent due by him.
    ©ne joint owner of a chattel cannot maintain replevin against another.
    Appeal from Baltimore County Court. Replevin by the appellee against the appellants for a sloop or vessel on the stocks, taken in a certain place called The Ship Yard of the plaintiff. The defendants avowed the taking, &c. for two years rent in arrear of the lands and tenements in which, &c. under a demise thereof made by the defendants to the plaintiff’s intestate, on the 18th of August 1813, at the yearly rent of @800; and because @1200 were due for two years, &c. well avows the taking, &c. for and in the name of a distress for the said rent, &c. The plaintiff pleaded to the avowry — 1. That the plaintiff’s jutestate did not hold or enjoy the said place in which, &c. as tex nant thereof to the avowants under the supposed demise thereof, &c. 2. That, no part of the supposed rent was or is in arrear, &c. Issue tendered. S. That the said place in whieh> &c. was parcel of a close which the plaintiff’s intestate held as tenant to the avowants a long time before the time when the said distress was made; and that the avowants, a longtime before the time at which the said distress was made, and before the time at which the supposed rent for which the said distress %vas and is pretended to have been made, or any part thereof, was supposed or pretended to be due, entered wrongfully into the said close, and put out the plaintiff’s intestate from a great part thereof, &e. 4. That the plaintiff’s intestate was a ship-carpenter, and that the said place, in which, &c. was occupied by him as a common and public ship-yard for the building and repairing of ships and other vessels; and that the said goods and chattels were the property of one William Carman, and were a certain sloop or vessel upon the stocks and unfinished, and at the time of the said distress was in the possession of the plaintifl’s intestate in the said public ship-yard, in the ordinary course of his trade as a ship-carpenter, for the purpose of being built and finished, and for no other purpose, and that the plaintiff’s intestate had no property therein except as bailee as aforesaid of the said Carman, &c. The defendants joined issues to the first and second pleas. To the third plea they replied, that they did not, before the time at which the distress was made, and before the time the said rent was due, entér wrongfully into the said close, and put out the plaintiff's intestate, &c. Issue joined. To the fourth plea they replied, that the said goods and chattels were not the property of William Carman, and the sloop or vessel was not, at the time of the distress, in the possession of the plaintiff’s intestate, in his public ship-yard, in the ordinary course of his trade, &c. and and that he had property therein. Issue joined.
    1. The avowants, at the trial, gave evidence, that in the year 1810, William Flannagan, the plaintiff’s intestate, rented of Thomas M'Elderry, under whom the defendants claim, part of the property, for the rent of which the distress was laid is, this cause, at the rent of $500 per annum, and afterwards rented another part of said property at the additional rent of $200 per annum;, and that the property' thus rented extended from, &c. That afterwards Flannagan on the 18th of August 1811, rented by parol of the defendants the whole property from N, round to N, for firm years, for $1200 per annum. That after Flannagan had enjoyed the same for somewhat more than one year, the avowants having received a proposition for the renting of the wharf from I to M, called upon Flannagan and asked him if he would give up a part of said wharf for a proper consideration, to enable them to make a lease in perpetuity to Martin F. Maher; that Flannagan in July 1813, agreed that the avowants should lease to Martin F. Maher a part of said property called the New Wharf, as described .in the .lease to them; and that he, Flannagan, should rent the residue in his possession at the rate of $600 per annum; and that Flannagan enjoyed the property from J1 to I for two years next after this 18th of August 1813, and until the time of the distress , which was laid by the defendants. And the avowants further proved, that immediately upon said agreement the avowants executed the following lease to said Maher, dated the 29th of July 1S13, for all that lot, piece or parcel of ground, situate, lying and being in the city of Baltimore, and contained within the following metes and bounds, courses and distances, to wit: Beginning; &c. To have and to hold, &c. for 99 years, at the yearly rent of $2125, with the usual covenants to pay the rent, and liberty to re-enter on nonpayment, &c. .Which lease extends from / to M; and that Flannagan having some timber on said part so leased to Maher, he removed the same from off said lot when requested so to do/ and that Flannagan was present and saw the improvements, made by Smith .and Maher on the whole of said lot, and never objected to the same. That Maher paid rent to the avowants for his part of said lot up to the time of laying the distress in this case, and was never forbidden so to do by Flannagan. And that after the said lease was made by the avowants to Maher, the front of which, from I to M, was lying on the navigable waters of the •Basin of Baltimore, Maher applied to the port wardens of Baltimore for permission to drive the piles from H to 2V, which permission was granted to him by said port wardens, and that said piles were not driven by the direction or authority of the avowants, or either of them; and that during all the holding of I la miagan there was a chained moveable floating log fixed with one end to II, and the other on the piles, long enough to permit vessels and timber to come to the wharf from II to I, this log serving as a door for that purpose, and that there never was a period during the whole of said renting by Flannagan, in which there was not ample room on the other part of said de-, mised premises, at which he might land lumber or carry in vessels, those being the only two purposes for which said wharf was requisite. The avowants further gave in evidence, by one Daniel Conn, a competent witness, that after the two years rent became due, which are in controversy in this cause, he went with Mrs. M-Elderry, one of the avowants, and one of the lessors of Flannagan, to Flannagan, to require of him the payment of said two years rent. That they saw Flannagan, who objected to pay it, but that nothing was said about any other rent than that now in dispute. The plaintiff, in order to. support the third issue on his part, gave in evidence, that William Flannagan, the original plaintiff in this cause, some time prior to the year 1810, held as tenant to Thomas M‘El derry, deceased, whose heirs at law the defendants are, at the annual rent of $500, a portion of the property known by the name of M‘Elderry’s Wharf, beginning for the water front of, said portion of property at the point marked dl upon the plot hereunto annexed, and running thence southerly to B, and thence round to 0; that one Ludwig Herring occupied under the- said Thomas M‘Elderry, and as his tenant, about 80 icet front, or thereabouts, lying immediately north of the point ¿1; and that one Salisbury occupied the lower end of the wharf; that at that time the wharf extended as far south as the line II IE; and that there was also an unfinished wharf projecting southwardly from the line III, about 60 feet; that Salisbury occupied the whole lower end of the wharf, including the said unfinished wharf or projection, and the water right in front thereof, and of the line III. That by a contract made between the said Thomas M‘ Elderry and Flannagan, sometime in 1810, the said M‘Elderry demised to Flannagan the who!® of said wharf property, which had been rented both by Flannagan and Salisbury,at the annual rent of $700. That subsequent to the said last mentioned demise the wharf was extended to its present limits, ag laid down upon the plot, southwardly from the termination of the old wharf to the point M and N That after the- said extension, the defendants, who had then succeeded to the property upon the death of Thomas-M‘Flctej’ry, whose heirs at Jaw they are, demised by parol, to Flannagan, the whole of said wharf property beginning at Jl round to N, at the annual rent of $1200 for five years, commencing on the 18th of August 1811. That on the 29th of July 1813, the defendants leased to Job Smith, and others, at the annual rent of $2125, all that part of the wharf which is south o! the line HIR. That Smith, and others, entered and took possession of the part of the whari so leased, and drove piles in the place indicated by the dotted curved line from Ft to N, to the utter destruction of that part of the wharf called' the South Cross Wharf; that is to say, that part of the wharf from H to I. That the said piles, and the" occupier of the west front wharf running southerly from /to M by the said last mentioned lessees, not only deprived Flannagan of the' use of all that part of the property south of the line IIIR, but rendered the south front wharf from //to /of no use or value to Flannagan. That the said south front wharf had previously been of great importance to Flannagan. That Flannagan was a ship-carpenter, and that the sard south front wharf was, on account of its situation in relation to the part,particularly adapted for the purpose of heaving down vessels, and was employed by Flannagan for that purpose;- one large brig was actually hove down at the said south front wharf. After the said lease from the defendants to Smith, and" others, no vessel could be hove down at said south front wharf, as well on account of the driving of the piles aforesaid', as' of the occupation of the west front wharf, running southwardly from /,- by the said last mentioned-lessees. The plaintiff further proved by William Carman, a witness sworn in the cause, that in the month of March 1813, the defendants leased to the witness-100 feet of ground for 99 years, renewable for ever, at the rate ef five dollars per foot per annum, by deed dated the 8th- of March 1813, and which was executed by Elizabeth, John ami Thomas M-Elder ry, in virtue of an act of assembly appointing them trustees, &c. to William Carman, James Mosher and Robert Carey Long, in the proportion of one undivided halt to Carman, one undivided fourth to Mosher, and the remain» ing undivided fourth to Long, &e. And that in pursuance oí) and by authority of said lease, the witness entered into tho said 100 feet of ground, and began to remove some lumber and timber belonging to Flannagan from off the same, and to dig, the foundation for an office. That while so removing said timber and lumber, and digging said foundation, Flannagan came to witness and told him he was encroaching on the grounds leased to him, Flannagan, by the defendants. That witness replied that he did not know how that was; that he had u lease of the ground, and that he, Flannagan, would have to settle it with the defendants. That the witness proceeded to remove, and did remove the lumber of Flannagan from off the ground, and dug the foundation, and built a brick office thereon, and enclosed the whole of said 100 feet of ground by a fence. The plaintiff further proved, that 16 feet of the 100 feet leased by the defendants to Carman, (from which 16 feet Carman removed the lumber and on which he built the office as before stated,) was part of the ground originally leased by Flannagan from the defendants; and that Carman has continued to hold the said 16 feet under and by virtue of the authority of his lease aforesaid, ever since, and held the same as aforesaid during the time in which the rent in this case is alleged to have accrued. The avowants then proved, that about the time of the lease to Carman, he proceeded to erect a brick shop on said 16 feet, and proceeded to remove some of Flctnnagan’s lumber which was lying there» on; that Flannagan came and at first objected to it, but that Carman told him he had leased of IvfrElderry, and then proceeded to remove the lumber, Flannagan standing by and seeing its removal without making any further objections; and that Flannagan never did object afterwards to the erection of said office, until the quarrel arose in 1816, and he seat Car-man notice that he should consider him his tenant. The plaintiff then moved the court to direct the jury, that if they shall believe the lease from 'the defendants to William Carman, as given in evidence, included a part of the ground to which Flannagan was entitled under his lease from the defendants of the 18th of August 1811, and that Carman, by virtue of his lease, entered upon such part, and thereby excluded Flannagan from the possession thereof, without his consent and against his will, then such entry and exclusion suspended the legal right oí the defendants to demand rent from Flannagan for the whole or any part of the property so leased to him, as long as Flannagan was deprived of the possession of that part so leased and occupied by Carman, and included in the lease from the defendants to Flannagan as aforesaid. Which opinion and direction the Court, [Archer, Ch. J.j gave. The avow-ants excepted.
    
      2. The preceding evidence having been given, the avowants made the three following prayers to the court: 1st If the jury should believe from the evidence, that On the 18th of August 1813, the dale of the lease from the avowants to Flannagan, Upon which Was reserved the rent of #600, Flannagan knew that Carman claimed, and had taken possession of, under his lease from the avowants, of the 16 feet lying between the lines on the plot ■ from A to, &c. that then they may presume that said 16 feet were not intended to be included in the lease aforesaid to Flannagan. Which direction the court refused to give; but informed the jury that they should look to all the facts in evidence, and from them determine the extent and limits of the lease to the.plaintiff. 2d. If the jury believe from the evidence, that after Carman took possession of the 16 feet marked on the plot, Flannagan did not apply to the avow» ants in relation to said possession, but afterwards gave Carman notice to pay the rent of said 16 feet to him, Flannagan, that then Flannagan elected to take Carman as his tenant, and that his so doing prevents said possession from amounting to am eviction of Flannagan from the property held by him from the avowants. 3d. Upon all the evidence and pleadings in this cause, the avowants prayed the court, to instruct the jury, that they are entitled to recover. Which direction the court refused to give. The avoWants excepted. 3. The plaintiff, in order to support the fourth issue on his part, gave in evidence that William Carman, mentioned in She fourth plea of him the plaintiff, agreed with William Flannagan, the original plaintiff in this cause, that he, Flannagan, should build for him, Carman, a sloop, for which Car-man was to pay as the work advanced. That Flannagan accordingly built a sloop for Carman, and that Carman paid to Flannagan money on account of the said sloop. That on the 37th of February 1816, the captain employed by Carman to command said sloop, commenced superintending the said sloop, and did actually superintend and work on board her, and that his wages commenced from that day, she then being upon the stocks. That the said sloop was intended to be launched upon the 1st of March 1816, about 12 o’clock at noon; that about 10 o’clock, A. M. on the said 1st of March, the defendants distrained the said sloop; that in the course of the day she was replevied, and was actually launched about 5 o’clock, P. M. of the same day. That previous to the distress, Carman had paid to Flannagan, for and on account of the said sloop, and in pursuance of the contract for building her, the sum of @1,450. That at the time of the distress the mast of the said sloop was In her, and she was as much rigged as she could be previous to launching. That the joiners’ work was all done; that she was painted and varnished. That there was much blacksmiths’ work done upon her. That Flannagan had nothing to do with the rigging, joiners’ work, blacksmiths’ work, painting or varnishing the said sloop; hut that the same were to be paid for by Carman. That there were other workmanship and materials employed in and about the said sloop before the said distress, for which Carman had paid, or was responsible, and which were finished by persons other than Flannagan, and with which Flannagan had nothing to do. That Carman bad paid, and was responsible for the sum of @710, and upwards, for the workmanship and materials furnished and employed in and about the said sloop, by persons other than Flannagan, and with which he, Flannagan, had nothing to do. That Flannagan was a ship-carpenter; and that the place where the distress was made was his ship-yard. The defendants, to support the said issue on their part, gave in evindencs. that there was due to Flannagan, on account of the said sloop, the sum of $333 66. ■ That the contract between Carman and Flannagan was that Flannagan should furnish all the materials for his work on said vessel, and should finish the said .sloop to a cleat. That the meaning of said contract, as understood by merchants and ship-carpenters, is that the whole of the ship-carpenter’s work shall be done; that it is part of the ship-carpenter’s work to launch the vessel, which is a difficult and dangerous operation, and until it is over, vessels are always considered at the risk of the builder. That said vessel was only measured, and her tonnage ascertained, after she was launched; and that said distress was levied whilst said vessel was on the 9tocks, and before the carpenter’s certificate was given for her; and it is quite usual for captains of vessels to superintend the building and equipping of vessels whilst on the stocks. The defendants then prayed the court, that upon the foregoing evidence, the plaintiff was not entitled to recover. Which opinion the court refused to give. The avowants excepted. Verdict and judgment for the plaintiff; and the defendants (the avow-ants,) appealed to this court.
    The cause was argued at the last June term before Buchanan, Ch. J. and Stephen, and Doesev, J.
    R. Johnson, for the Appellants,
    contended upon the first bill of exceptions, 1. That admitting Carman, under his lease of the 8th of March 1813, took possession of 16 feet of the whole ground originally leased by the appellants to Flannagan, such possession did not in law amount to an eviction of Flannagan by the appellants, of those 16 feet, so as to extinguish their right to the rent.
    2. By the evidence, Carman’s possession under his lease of the 8th of March 1813, of the 16 feet, was before the lease stated in the avowry from the appellants to Flannagan of the 18th of August 1813, and did not interfere with Flannagan’s enjoyment under his last lease, of any part of the property embraced by it; and, therefore, did not operate to suspend or extinguish the appellants’ right to the reserved rent.
    3. Upon the second bill of exceptions he contended, that the notification by Flannagan to Carman, after the date of 
      Carman’s lease from the appellants, operated to make Carman, an under-tenant of Flannagan, and to prevent that lease from having the effect of evicting Flannagan from any part of the property leased to him by the appellants, so as to suspend the right of the appellants to demand, under the last lease, their rent from Flannagan. Upon the first and third prayers in this bill of exceptions, no question will he raised.
    4. On the third bill of exceptions, he contended, that the form of this exception admits the lease stated in the avowry, and that the rent was due at the date of the distress, &c. 1. That as Flannagan continued in possession of the property distrained at the time of the distress, he had Such an estate in the property as rendered it liable to distress. 2. That if he had not such an estate, it was because he had parted with his possession, in which event he had neither a general nor special property in the vessel distrained, and could not, therefore, as is the prayer in this exception, maintain this action for the vessel.
    On the first and second points, he cited Clayton vs Blakey, 8 T. R. 3. The act of 1766, ch. 14. Laidler vs Young’s Lessee, 2 Harr. & Johns. 69. 4 Bac. Ab. tit. Leases, &c. (S 3,) 212.
    
    On the fourth point, he cited 3 Blk. Com, 7. Zagary vs Furnell, 2 Campb. 240. M'Donald vs Hewett, 15 Johns. Rep. 349. Allegre vs Maryland Insurance Company, 6 Harr. & Johns. 408. Mucklow vs Mangles, 1 Taunt. 318.
    
      Wirt, (Attorney General of U. S.) Meredith and Evans, for the Appellee.
    Upon the first bill of exceptions they contended, that an eviction of part of the land demised suspended the whole rent. 3 Bac. Ab. tit. Extinguishment, (A) 105. 6 Bac. Ab. tit. Rent, 49. Co, Litt. 148. a. Gilb. on Rents, 178. Eddowes vs Niell, 4 Ball. Rep. 134. The entry of Carman was an eviction of Flannagan; and the act of Carman was the act of the appellants, his lessors. Co. Litt. 249, (note.) 217, (note 3.) Freeman vs Barnes, 1 Vent. 80. The lease to Flannagan was not a void contract under the statute of frauds, or the act of 1766, ch. 14. A parol lease from year to year for seven years, is not a lease for a year certain, but for seven years. Rob on Frauds, 242, 243, (note.) Legg vs 
      
      Strudwick, 2 Salk. 414. Birch vs Wright, 1 T. R. 378, 381, per Buller, J. A new lease of a part is no surrender of an old lease. A surrender of part is no surrender of the whole. 6 Com. Dig. tit. Surrender, (I 2,) 320. Rob. on Frauds, 258, 259, 261. 4 Bac. Ab. tit. Leases, 217. 3 Bac Ab. 105. It is not a new lease of any part. The avowry does not state what part was demised. The first and second issues were found for the plaintiff without any direction from the court to the jury. Rob. on Frauds, 244. Doe vs Bell, 6 T. R. 471. As to the apportionment of rent — Co. Litt. 148. Com. Dig. tit. Suspension, (E.)
    On the third bill of exceptions. A landlord has a right to distrain any property on the premises, excepting that placed there for public convenience, and the benefit of trade and commerce. Gilman vs Elton, 7 Serg. & Low. 355 Here the property of sundry persons was taken as the property of one person. The vessel taken was the common property of different mechanics — if she was not the property wholly of Carman. He was responsible to the mechanics. Take him as having a joint property with Flannagan, the distress was improper. Co. Litt. 47. But the whole property in the vessel was in Carman. Woods vs Russell, 7 Serg. & Low. 310. A mere right of possession is sufficient to maintain replevin. Smith vs Williamson, 1 Harr. & Johns. 147.
    
      Taney, in reply.
    Three questions arise under the third bill of exceptions on the fourth issue. 1. Was the right of property in the vessel in Flannagan or Carman? 2. If in Car-man, was she liable to distress? 3, If not liable, had the plain*» tiff such a property in her as could support replevin?
    1. The contract was for building the vessel. Carman had the right of action to claim the property, but the right continued to reside in Flannagan. A right under a contract, and a right of property, are two different things. If any thing is to be done to the thing contracted for, it is the right of the vendor, and not the right of the vendee. Until the vessel was launched she was the property of Flannagan — not as bailee. The risk was Flannagan’s if the vessel was destroyed in launching, &c. M'Donald vs Hewett, 15 Johns. Rep. 349. Woods vs Rus
      
      sell, 7 Serg. & Low. 310. A person mixing his property with another’s is to abide the consequences resulting therefrom. It cannot exempt the property from distress for rent.
    
      3. The property was not privileged from distress. Gilman vs Elton, 7 Serg. & Low. 357.
    
      3. The prayer in the third bill of exceptions went as to the fourth issue, and was intended to apply to that issue only, although it was general.
    On the first bill of exceptions. The eviction is not undei? the lease to Maher, but under the lease to Carman. The other leases have nothing to do with the case. The lease to Flannagan commenced in August 1811. In July 1813, Flannagan agreed to the lease to Maher. The 16 feefi were not then in his possession. The new lease by parol was in 1813, for a rent of $>600 per annum. An eviction suspends the rent from the time of the eviction. By the Statute of Frauds all leases for more than three years were leases at will. (See the statute m 1 Bac. Ab. tit. .Agreement, (C) 115.) If the lease is for five years, that would be a tenancy from year to year, so long as the parties agreed. This is the case in England. But our act of 1766, eh. 14, declares that leases for above seveii years shall be recorded; but it left all leases for seven years, and under, as they stood before, and did not repeal the law as to such leases. The effect of a lease from year to year, is a lease for a single year. Looking back for several years they are united, and it is a continuing contract; but looking forward it is only a lease for a year. If a lease is for three years, and the term has expired, the lessor could not distrain at common law. Fob. on Frauds, 241. The evic - tion by Carman was on the 13th of March 1813. What was Flannagan’s interest at that time? His right then expired in August 1813. The agreement between him and the appellants was a new lease after August 1813, so that no rent could be exacted which fell due in August 1813, because of the eviction. But that eviction could not operate upon the new lease, which commenced in August 1813, at the expiration of the former lease. When he was evicted he had no interest. He got a new interest under the new lease. Rob. on Frauds, 342, (and note.) Here it cannot be presumed that the 16 feet were included in the new lease, because they had been leased to Carman. An agreement to continue must be the act of both parties. Under the new lease Flannagan never was in possession, nor was to be, of the 16 feet leased to Carman. The presumption of a continuing lease is where the whole property remains in the possession of the tenant. The lease to Carman for the 16 feet was notice to Flannagan. Acceptance of a new lease for a part, is a surrender of the old lease as to all except that part. 4 Bac. Ab. 212, 217.
    
      Curia adv. mclL
    
   Dorsey, J.

at this term, delivered the opinion of the court» The correctness of the opinion given by the county court on the first bill of exceptions, depends entirely on the existence of a fact, of which, to view it in the aspect most favourable to the appellee, there is considerable doubt. By the demise of the 18th of August 1811, Flannagan held of the appellants,, by parol, for five years, the whole of the wharf property alluded to in any part of the proceedings in this cause. On the 8th of March 1813, the appellants leased to William Carman a part of it fronting 100 feet on the water; and on the 29th of the succeeding July, by the consent of Flannagan, made a lease of that part of said wharf called The New Wharf.\ to Martin F. Maher, for 99 years renewable forever; and according to the testimony of the appellants, as stated in this bill of exceptions, he, Flannagan, agreed to rent the residue of said.-JVh.arf in his. possession, at the rate of $600 per annum. "W&.erthiisrjvin, the opinion of the court, according to the weight of testimony,^t}|j.s contract of July 1813, is to be considered as a surrender of all those parts of the wharf only which were-leased to Maher, and an apportionment of the rent for the residue, or as a surrender of the whole wharf, and an acceptance by Flannagan of a new lease of all that part of the- wharf not included in Maher’s lease, is wholly immaterial in deciding on. the prayer made to the county court. Before the court could' legally give the instruction prayed for by the appellee, they must admit the truth of the testimony offered by the appellants, and of the testimony given by the appellee, which may operate in the appellants’ favour, and the existence of all material facts reasonably deducible therefrom, even though contradicted in every particular by the testimony on the part of the appellee; Upon no other principle can the case be withdrawn from thó consideration of the jury, who alone are competent to decide on facts of which contradictory evidence may be offered. The agreement of the 29th of July 1813, as proved by the appellants, is therefore a eoncessum in the cause. If there were no proof to show that the possession of Carman’s lot was out of Flannagan at the time of that agreement, then were the court below justified in the opinion they have given. But if there be evidence from which a rational mind could infer such a fact, the county court have invaded the province of the jury, and their judgment must be reversed. The proof on the part of the appellee, is that Carman, in pursuance of his lease, entered upon his 100 feet of ground, erected a shop on 16 feet thereof, and enclosed the whole with a fence. The appellants prove that this was done about the time of the lease' to Car-man. When this testimony is coupled wilh the agreement of the 29th of July 1813, in which the word possession is used, for no other purpose that is discernible, unless it be to exclude from the demise to Flannagan the lot leased to Carman, can, it be said that there is no evidence admissible to the jury to show possession in Carman at the time of such "agreement? He who would refer to the case of Ludlow vs Ogdon, 2 Wheat„ 178, (which however it must be admitted extends the power of a jury to the utmost verge of rationality,) would not hesitate! in returning a negative answer to this question;.,

The second bill of exceptions presents ers on the part of the appellants, aff of which were refused by the court. In the decision on the first and of the appellee have stated their entire acjpMffltéene'e; and^f that made on the second there is as little c* ** Whether there was an eviction or not depends upon all the circumstances of the case, and not upon the two isolated facts Which have been selected as the basis of the prayer. Flannagan was not bound to resist by force the acts of Carman id taking possession of the lot demised to him, and his notifying Carman, after the distress was levied, that he should consider him his tenant, did not mako him so, or release him from he covenants to the appellants; and upon no principle of law or justice should an act so nugatory and inoperative be construed to divést Flannagan of an unquestionable legal right.

The only question designed to be raised by the third bill of exceptions is, whether Flannagan had such an interest in the sloop, as Could be the subject of a distress for rent. By the refusal to give the instruction demanded by the appellants, the' court below have determined, that such a distress was unlawful; and from this decision an appeal has been wisely taken. Even let it be conceded that all the materials and work of the blacksmith, the'ship-joiner, the painter and rigger, were the general property of Carman, and that he had a like interest in the materials and workmanship of the carpenter to the extent of his payments made on the sloop, and also that the shipyard of Flannagan, for reasons of public policy, and for the encouragement ot commerce, protects from distress the property of third persons, placed there in the ordinary course of business; yet is it not a proposition equally undeniable, that Flannagan had the same property in his materials and labour bn the sloop, to the extent ot the balance due to him therefor? The privileges of his ship-yard cast around his interest no protection, and it remained liable to distress in the same manner that his separate property would have been. Joint property, in the possession of one' of the owners, may be seized and sold under a fieri facias against him only, and the purchaser’s right Would be complete to the extent of the interest of him against whom the execution issued; and he might hold possession accordingly. In the present case,- if under the Stat. of 17 Car. II, ch. 7, the jury be required by the appellants to- ascertain the amount of property distrained, they must have limited its value to the balance due from Carman to Flannagan, and if declining to proceed Under this statute, a general judgment' for a return had' been rendered, Carman, by application to a court of equity, would have recovered the sloop,- upon h-is paying to the purchaser the balance due' for it according to his contract.

Flannagan’s interest being adjudged distrainable, his right to, maintain- replevin a's the bailee of Carman, so much relied oil in the argument, necessarily falls to the ground' — one joint owner of a chattel being incompetent to maintain replevin against another. And upon no principle can the rights of tho bailee, in such a case, be extended beyond those of his principal.

The case of Woods vs Russell, 5 Barn. & Ald. 942, urged by the appellee’s counsel as conclusive upon the ease before us, is clearly distinguishable from it. Here no act was done by Flannagan which could be tortured into an admission that; the entire property in the sloop should pass to Flannagan, hut upon the payment of the whole price stipulated to be paid for her. There the ship-builder was privy to the chartering of the ship by him for whom she was built, assented to tho measurement thereof, and gave the usual certificate of building, &c. to authorise the granting to him a register, which issued accordingly, and could only have been obtained by making an affidavit of ownership. These facts create an irresistible implication, that the builder consented that the general property in the ship should be considered from that time as being in the defendant And in that light were .they viewed by the court.

The rights of the party, for whom any article is built agreeably to contract, is very strongly marked out in Mucklow vs Mangles, 1 Taunt. 318. Royland contracted to build a barge for Pocock, and received -from time to time, as the work proceeded, £190, the value of the barge. When it was nearly completed, Pocock’s name was painted on the stern. Royland became bankrupt before its completion. The court held that the barge was not the property of Pocock until finished; that it was a quite different thing from a contract of sale. And Lawrence, Justice, stated that no property vested, till the thing is finished and delivered. Such a general rule, though applicable to the case in which it was pronounced, would ho productive of much inconvenience, and great injustice, if applied to the facts before us. There the contract was simply to build the barge. No agreement to pay the stipulated price as the work proceeded — nothing to specify the particular barge to which the contract or money paid should attach — nothing by which its identity could he ascertained. The delivery of any other barge would have been strictly a compliance with the contract. Not so here; the sloop was to be paid for “as the work advanced,” all the materials and labour, except what appertained to the ship-carpenter’s work, were to be furnished .and paid for by Carman. The contract, therefore, attached on and identified that particular sloop; the delivery of no other would have been by Flannagan a performance of his contract. Carman had, therefore, at the time of "the distress, a general property in the sloop equivalent to the money paid, and labour and materials by him found on account thereof, but no further. The residue of the property therein remained in Flannagan, liable to seizure and sale, on process for the recovery of debts or rent due by him; and by no proceeding in a court of law could Carman recover possession of the sloop until payment, or tender of payment, of the whole price specified by the terms of his contract.

The opinion given by the county court on the second bill of exceptions is assented to; but that delivered by them on the ¿first and third bills of exceptions is dissented from.

JUDGMENT REVERSED, AND TROGEDENDO AWARDED  