
    *Kellogg, Kennel, and Crane v. Joseph Brennan and OTHERS.
    Under the act of February 26, 1840, “providing for the collection of claims against steamboats and other water-crafts, and authorizing .proceedings against the same by name,” a mortgagee of the craft has not a lien preferable to the claims of creditors, especially if the craft is running for the joint interest of owners and mortgagee.
    This is a bill in chancery, reserved in Hamilton county.
    The facts in this case, as they are disclosed in the bill, answers and exhibits are as follows: In the year 1841, John G. Smith, Joseph Brennan, and William Porterfield built the steamboat “Walnut Hills,” and, being largely indebted to divers persons for materials and labor furnished in building said boat, and being unable to pay the same, on the 29th of October of that year, by agreement of all.the creditors, with the exception of the defendant, David Griffey, made a transfer of said boat to one James M. Niles, as trustee, who was authorized to make sale of the boat, if necessary, and divide the net proceeds among all the creditors, and pay the balance, if any, to the former owners. This deed of trust was assented to by all concerned, with the exception of Griffey, but has been lost; and being lost, the contents arc proven by parol.
    After the boat had been running some time, but no money made, the creditors who had before consented to the transfer to Niles, agreed with the former owners, Smith and Brennan, Porterfield having left the country, insolvent, that they should release their remaining interest in the boat to Niles; in consideration whereof the creditors would relinquish their claims against said Smith, Brennan, and Porterfield. This arrangement was consummated and the release executed on May 3,1842. By force of this release, the entire interest in the boat was vested in Niles, as trustee, for the use of the creditors.
    *On the same 3d of May, Niles, with consent of the creditors, sold and transferred the boat to the defendants, Brennan, Montgomery and Stevens, for $12,500, to be paid in monthly installments of $500, to secure the payment of which a mortgage was executed by the purchasers to the complainants, who were creditors of the boat, and who were to receive the payments in trust for the creditors generally.
    In this mortgage these arrangements as to payments are recited, and it is stipulated that just and true accounts shall be kept of the expenses and earnings of the boat, and if the not earnings amount to more than $500 per month, the excess over and above the $500, as well as that sum, is to be paid to the creditors toward the liquidation of the debt. There is also this stipulation : “ And it is mutually understood and agreed by all parties that the said Grane, Kellogg, and Kennel, trustees as aforesaid, and the survivor or survivors of them, shall faithfully divide, every month, pro rata, among the parties for whom the trust in them was created, any and all moneys which may or shall be paid over to them under this mortgage.”
    Subsequently John Owens, one of the original creditors, commenced a suit against the boat, under the law of February 26, 1840, and recovered a judgment. David Griffey, another of the original creditors, in like manner commenced suit and recovered judgment. In like manner sundry others of the defendants, who became creditors of the boat subsequent to the dale of the sale to Brennan, Montgomery and Stevenson, and subsequent to the date of the mortgage, commenced suits and recovered judgments.
    This bill was filed in the superior court of Cincinnati, and all the judgment creditors, as well as others supposed to have claims against the boat, are made defendants. The object is to compel a sale of the boat, and to have distribution of the avails, according to the rights of all concerned. The amount due on the mortgage is between $9,000 and $10,000. During the pendency of the case in the superior court, the boat, *by order of the court, was sold by the sheriff, and the avails, $5,000, remain in his hands. A final decree was pronounced in that court, at the January term, 1844, from which an appeal was taken.
    Fox & Lincoln, for complainant:
    The court will perceive that this case calls for a more full interpretation of the law allowing suits to be brought against steamboats by name than has ever yet been given to it. It requires of the court to decide whether it is in fact a lien law; whether it can overreach statutory liens secured to builders by express statute; whether it overreaches and defeats mortgages previously given; whether a sale under a seizure made by one creditor under this law transfers to the purchaser a full, clear, and indisputable title; or whether another creditor, prior or subsequent to the one under which the boat was sold, can, by a new suit, have the boat resold so as to get payment of his debts.
    As two decisions have been already made by the court in bank on this statute, I will reler to those decisions first, to ascertain whether those cases have decided this question.
    The first case is in 10 Ohio, 384, and merely decides that a suit can not be sustained for debts incurred prior to the passage of the act.
    The case in 11 Ohio, 458, decides that suits may be brought under this act for provisions and other necessary supplies.
    
      These arc the points decided, but it is rather remarkable that Judge Hitchcock, in delivering the opinion of the court in 10 Ohio, Rays, page 386: “ This law gives a lien upon such crafts for certain claims against them.”
    And'in the case in 11 Ohio, 462, Judge Read delivering the opinion, speaking of tho boat, says: “Her responsibility is not in the nature of a lien.” But in neither of these cases was *the question of lion involved. This being the state of the law, as to tho decisions of this court, I suppose the question is fairly open as to lien or no lien.
    
    I suppose it will not be pretended that, by tho principles of the common law or maritime law, any creditor of a vessel has a lien for building a boat, nor docs such lien exist for repairs in tho home port, although in a foreign port a lien for such purposes does exist.
    This principle of law is well settled, and will probably be admitted by the opposite counsel.. 4 Wheat. 438; 4 Conn. 493.
    There being no common law lien, then, such lien can only be created by local or statute law, in the absence of any contract between the parties; and I maintain that, to create such a lien by statute, express words are necessary, or at least the language must be such as necessarily leads the mind to the conclusion that the statute was intended to confer a lien, and thereby give to all creditors a preference over another in the payment of tho debt.
    In absence of any particular contract or statute, a lien only exists while the possession of the thing is held by tho creditor. 2 Mor. 403 ; 18 Ves. Jr. 188; 4 Camp. 295.
    So a ship-builder has no lien for repairs where there is an agreement to give credit, or where a credit of eighteen months is customary, unless there is an express contract to that effect. Ho can not retain possession under such circumstances. 4 Camp. 149.
    Let us examine and see if there is any express or implied lien created, by this act.
    Section 1 declares the boat shall be liable for debts contracted on account thereof by the master, etc., for materials, supplies, or labor, etc., in the building, etc.; also for injuries done to persons or property, and for damages and injury done to passengers by any officer or hand on board.
    
    Section 2 authorizes any person having such demand to proceed against the owners or master, or against the craft itself.
    
    
      *It clearly appears, therefore, that there are no words expressly giving a lien; and, in this respect, it differs from all other laws I have ever seen giving a right to sue a ship or steamboat by name, as will be seen hereafter.
    The next question is, whether, from the language used, this court is required or authorized to draw the conclusion that the legislature intended the law to operate as a lien until seizure? I maintain the court ought not to draw any such conclusions, and for tho following reasons:
    1. A law should be so construed, if possible, as not to render inoperative other laws existing on the same subject matter. The construction should be such as to sustain rather than to repeal other statutes. If this is a correct proposition, it is proper to notice the statutes of this state, giving a special lien to mechanics and others, for work and materials furnished in building steamboats, etc.
    The act of January 1,1823, 3 Chase, 252, gives to laborers, mechanics, and furnishers of boats, vessels, etc., a lien for the value of labor, skill, and material. It requires the creditor, however, to furnish an account in writing, containing a suitable description of the property, labor, materials, etc., furnished; make oath thereto, within two months after the labor is done, etc., and have the same recorded ; and then the same is declared “to operate as a lien on the several descriptions of buildings, etc., for two years.” This act only applied to Cincinnati, but by the act of February 5, 1833, and by the act of March 12, 1840, the act is extended to Fulton township, and to Hamilton, Washington, Montgomery, Scioto, Muskingum, and Knox counties; and by the last act of 38 Ohio L. L. 115, the lien is extended to “all repairs, additions, or improvements, upon any house, boat, vessel, or other craft,” etc.
    By the act of March 11, 1843, the above acts were all repealed, and a new law passed giving the same lien to furnishers, etc., of vessels, houses, etc., extending the principle of the law to subcontractors and workmen, etc. This law requires *the account to be sworn to and recorded in the same manner as under the former law.
    My object in referring to these laws is, to show that they a’l give, by express words, a lien on the boat, etc., but on condition that an account is made out and recorded^ etc.
    The construction claimed by the opposite party, or those claiming the steamboat law to be a lien, will in effect repeal the above laws. For, if the steamboat law gives a lien to a mechanic and furnisher before seizure, it does it without any of the requisites of Bwearing to or recording the account, and thereby repeals tho very laws by which an express lien is provided on certain conditions. The two laws can not stand together, because the one only creates a lien-when certain acts are done, while the other gives the lien by construction, without the performance of those acts.
    And this view of the question is not affected by supposing tho steamboat law to be i.n effect a repeal of the lien laws passed prior to February 26, 1840, because the amended lien law was passed March 12, 1840, and the last lien law was only passed March 11, 1843-; so that, if the last statute is to be construed to repeal all former statutes inconsistent with it, the acts of March 12, 1840, and of March 11, 1843, must be held to repeal the steamboat law, passed on February 26, 1840.
    Now, by the construction T contend for, both laws are obligatory. I claim, the mechanic who has recorded his account under the statute giving a lien, as above referred to, has th& first lien on the boat, because the statute declares the account, so recorded, shall, “for two years after the commencement of such labor, furnishing materials, operate as a lien,” etc.
    I claim that no lien is given to any creditor of a boat or individual, by any law except as provided for in the lien laws above referred to, and that none can acquire such lien except by special contract, or by actually seizing the boat under tho steamboat law. The seizure, I suppose, creates the lien, and operates from the time of seizure, and does not overreach any prior lien existing on the thing.
    *This view of the case is strengthened by another view of the statute.
    Section 2 of the act declares the person “having such demand, may proceed against the owner or master, or against the craft.” The creditor is there authorized to make an election to sue the owner or the boat. Now, it is when this election is made (and not before, as I conceive), by seizing the boat, that the lien attaches, if at all, and to permit it to go beyond that time, so as to overreach or interfere with prior claims, is contrary to the spirit of the act.
    Again, if the time of seizure is not tho time when the lien attaches, when does it attach ? The statute, it is said, must be so 
      construed as to give a lien. When is this constructive lien to take effect ? The statute fixes no time.
    Shall it commence in an ordinary account of a butcher who furnishes meat daily and takes-in his bill once a month, when the first item is furnished, or the last item, or the one in the middle of the account? When is it to commence? /
    Again, if each account is a lien on the boat before seizure, so is a claim for damages for an assault and battery committed on a passenger. So damages for collisions, and not carrying freight, aro claims for which suits may bo brought. When do these claims operate as a lien? Is it irom the time the'assault and battery is committed — the time when the collision takes place, etc.? If so, how do we ascertain what other prior liens exist on the boat?
    Again, suppose the boat is seized and sold on a claim for goods supplied a year or two after the boat is built, and a debt is still due to the mechanic for building the boat originally, can the latter, after a sale on the subsequently-created debt, although ho never recorded his account so as to get the statutory lien, bring a suit for building the boat, and have her sold over again ? If ho can, and sells her a second time, would the last purchaser have such a title as would prevent the sale of the boat a third time for a debt incurred for repairing the boat, between the first debt incurred for building, and the last debt created for supplies?
    *Again, what was the object of passing this law, authorizing a steamboat to be sued ? It was to subject a boat to be sued* whose owners did not reside in Ohio, or, if they did, whose names were unknown to the creditor. The difficulty creditors were laboring under, was, that they could not always discover the names of the owners; and, without having their names, they could not bring suit against the person, or, by attachment, against the property.
    Again, it is contended, because the boat is a person capable of contracting, so long as she lives and moves upon the water, she is liable to be seized and sold for any debt she may contract, because this is the law with respect to a person contracting a debt. When & person is sued and judgment obtained for one debt, ho is still liable to bo sued by any and all of his other creditors. Therefore the argument is, although one creditor sues, and on his claim the boat is honestly and fairly sold for a reasonable price, and a title given by the sheriff to the purchaser, still, as the statute treats the boat as a person, and as persons can be sued on every debt they owe, so a boat can be sued and sold over for every debt she has incurred. There appears some plausibility in the conclusion drawn from the premises ; but are the premises true ? Is the boat a person? Is she so treated by the statute ? Will not one sale of the boat carry a title; and, if it will not, how is the statute ever to be carried out in practice ?
    While, if you give it the construction which I contend for, nothing is more simple than the carrjdng this law into effect. If the first seizure creates the lion, a sale under that seizure carries the title to the purchaser ; a second seizure would be subject to the first, and so on, according to priority of suit brought, and thus you disembarrass the law from difficulties, and insure, by the certainty of titles, all purchasers from any undiscovered and undiscoverable lien.
    
    Surely the court will adopt that construction which will tend most to securing the titles under these proceedings, and thus induce purchasers, at fair prices, to bid for the boat, *and not deter them from bidding, by the insecurity given to the title purchased,
    The court will find, by reference to the decisions in New York, under their statute, that the courts have always confined the operation of their act to the particular cases mentioned. It being an exception to the ordinary mode of pursuing a claim, the court holds the creditor to direct proof of his being entitled to the particular remedy.'
    And he must show, on the trial of the cause, that his claim is one expressly provided for by the statute; so, after the boat is released by giving bail, as provided for in the act, the bail is not responsible unless the claim sued on was expressly embraced in the act; because the bond is only substituted for the boat or ship; and, if the latter was not bound, the bond is of no account.
    I claim, then, that this steamboat law gives no lien on the boat for either materials, labor, supplies, or for claims for collisions, assault and battery, or other claims. That, no lien being given, the statute only gives the right to sue the boat, which the creditor may adopt or not at his election ; and, until he makes that election by seizing the boat, no lien attaches.
    That, when the creditor makes that election, he can not overreach the rights of others, but can only claim to hold the samo interest which his debtor has at the time of seizure; therefore, if the debtor has mortgaged or transferred the boat, after the debt was incurred, and before the seizure, or if the boat has been previously levied upon, on execution against the owner, this conveyance, mortgage, or judgment, has a preference to the seizure under this law.
    I look upon this law as affording a remedy only, and I think the court took a wrong start when they supposed it conferred rights as distinct from the remedy. It is idle to talk of a boat or a piece of land being a debtor ; a debtor is a living being, not a stick of wood or a steam engine.
    It is next claimed, on the part of the defendants, that the complainants, as mortgagees, are liable for the debts of this boat.
    *It is in evidence, however, that the mortgagees never were in the possession of the boat; and we suppose it is well settled that a mortgagee not in possession is not chargeable with the boat’s debts, nor is he entitled to the earnings of the boat. McIntyre v. Scott, 8 Johns. 162; Phillips v. Ledley, 1 Wash. C. C. 228; Jackson v. Vernon, 1 H. Bl. 114; Fisher v. Willing et al., 8 Serg. & Rawle, 122 ; Thorn v. Hicks, 7 Cow. 697.
    Chancellor Kent, vol. 3, p. 235, ed. 1832, says, “The weight of authority is decidedly in favor of the mortgagee who has not taken possession; and if he has left the possession and control of the ship to the mortgagor, he will not be liable to the master for wages or disbursements, or to any other person for repairs and necessaries done or supplied by the master’s order, where the mortgagor has been treated as owner.”
    So again, where a vessel is chartered for a voyage or any specified time, and the person hiring takes possession and control of the vessel, he is deemed the owner for the voyage or time agreed upon, and the real owner is not liable for debts incurred for repairs or otherwise during the period. The question, in such cases, is a mere “dry matter of iact question, who, by the charter, has the possession, command, and navigation of the ship.” 3 Kent, 138.
    It is claimed, however, that this particular mortgage of May 3, 1842, makes the mortgagees liable, becausesof the peculiar phraseology of the mortgage. By the terms of this mortgage, the court will perceive the boat was sold for $12,500, and only $500 of the purchase money paid down, and $500 was to be paid each month until paid, and then is this additional clause, “and if at any time it shall appear that the profits of said business exceed the sum of $500 monthly, then and in that case, upon all such occasions, we, the undersigned, do further covenant to apply such excess toward the payment of the several installments as aforesaid, so as to hasten the final discharge thereof as much as possible.”
    Now, as before remarked, it is proved that the boat was in the *possession of, and run and controlled by the mortgagors, registered in their names, and run for their benefit; and this clause does not show to the contrary. It is only a personal covenant on the part of the mortgagors to pay off the debt at an earlier period than the time stipulated, if they can make more than $500 a month. This clause gives no additional rights to the mortgagors. It does not place them in the possession or control of the boat, so as to entitle them to the earnings of the boat, which is the true test of liability as owner.
    The owners were all the time running the boat, and the mortgagees had no interest in the matter, except to collect their debt in the manner set forth in the mortgage.
    If the court shall take the same views of this matter as I have, as to this question ; if they should decide that a creditor of a steamboat owner has no lien on the boat to secure payment of his debt, unless be has made out and sworn to his account, and recorded the same, as required by the statute, then the case stands thus:
    The deed of trust of October 30, 1841, transferred the title out of the original builders, and none of the creditors having recorded their accounts, there was none that was a lien on the boat.
    The title, therefore, was transferred free and clear of any lien or incumbrance, and vested in James M. Niles, on October 30, 1841, for the benefit of all the creditors.
    2. The title remained in Niles for the creditors generally, when Griffey had her seized on April 18, 1842; and, if Griffey had no lien, he could gain nothing by seizing her, except the right to receive whatever should’ be lelt out of the proceeds of the salo of the boat, after satisfying the trust deed.
    If Niles had the -title, and was lawfully in the possession, of course he was in for the benefit of all the creditor’s; and Griffey could not divest Niles or the other creditors of their legal right, by a seizure of the boat.
    3. John Owen, of course, could be in no better situation, *because he was one of the original creditors, and did not sue until after Griffey.
    But there is an independent equity against Owen which must stop him from claiming, as against the deed of trust. He was one of the creditors who met on October 30, 1841, and agreed to tho execution of the deed of trust, and to accept that security, with the rest of the creditors. He banded in his bill, .as is shown by the testimony of J. W. Owens; he ought not, therefore, to be permitted to sue at law in violation of his agreement, and thereby get an advantage over tho rest of the creditors. It will bo remarked that, with the exception of 'David Griffey, all the creditors were present at the meeting, and assented to the deed of trust; none of them, therefore, could be permitted to attempt any legal advantage over each other contrary to the spirit of that agreement.
    If I am right, then, as to Griffey and Owen, there was no incumbrance on this boat on May 3, 1842, when the release of the equity of redemption was executed by the owners to the trustee, for the benefit of the creditors, who released the owners from the balance due. On that day the boat is again sold to the mortgagors named in this suit, who give the mortgage to secure payment of the purchase money ; and tho only remaining question is, whether debts, which the new owners incurred after that mortgage was given for repairing or supplying that boat, can divest the mortgagees of their security. Isay this is the only question left, because all the other defendants’ creditors are creditors whose debts were incurred by the new owners after they had given the mortgage.
    
    Now it would appear, in the absence of all legislation on this subject, that, if any creditor ought to have a lien on the thing, or a right to be paid his debt out of the pi’oceeds of sale of the thing itself, it ought to be the person who sold the article. Such is the natural equity supposed to exist, and which is recognized in equity, as between vendor and vendee of real estate. But, independent of that, these mortgagees are first in time. Their mortgage is anterior to any other claim, and hence another ^equity arises first in time, first in right, except as to innocent purchasers. 20 Wend. 20.
    A few words further on tho subject of the mortgage. It is well settled that, in equity, any agreement to assign the earnings of a voyage (1 Bing. New Cases, 697), the contingent interest of a possibility of an inheritance, the present and future earnings of a ship, are all the subject of assignment or contract absolute, or by way of security in equity, and will be enforced against all persons except innocent purchasers, without notice. 8 Price, 289, n.; 1 Jac. & W. 506, 512; 4 Sim. 524; 1 Mylne & Keen, 488; 1 Hall, 549.
    The principle held in all these cases is, that every man is entitled in equity to the benefit of his contract. Hence, whenever the subject of the contract is not in existence when the mortgage is made, but is. expected to come into existence, although the title is not transferred at law, equity will compel a transfer, as between the parties and all others, except innocent purchasers. • 1843, Dec. No. Law Bep. 348.
    If such is the claim of an individual under a mere contract, surely a mortgage, which is an executed instrument, is entitled to as much consideration in a court of equity.
    Wright, Coffin & Miner, for defendants Brodwell & Co.:
    We appear for defendants Brodwell & Co. The steamboat Walnut Hills became indebted to Brodwell & Co., for material and supplies, in the repairing, furnishing and equipping her; this debt was contracted by the agents of the boat, on her account, between January 16, 1843, and August 2, 1843, on which day the defendants’ debt amounted to $461.70.
    We claim that Brodwell & Co., by reason of the indebtedness of the boat to them, and the seizure by the sheriff, on August 2,1843, have secured their debt; they placed *the boat in possession of the sheriff, under the provisions of the statute ; and the payment of their debt, thus incurred and secured, is not to be postponed to that of the complainants.
    By our law, the creditor of a boat has a two-fold lien — the boat and the owners — he has the personal liability of the owner, of the person who receives the profits of the boat, and of the boat itself. This latter security is given by the statute. It was given to enable the creditor to realize his debt without being embarrassed with the many difficulties which beset him in attempting to enforce the personal liability of the owner. Since the passage of that act, crédit is, in a great degree, if not entirely, given to the boat, regardless of who are owners. The boat needs repairing, and the carpenter, looking to the boat, performs the work. His labor is performed upon the faith of the liability of the boat to him. Ho has no knowledge of the owners, who they are or where they reside, or of their ability to pay, or who may secretly have mortgage liens upon- the boat; and he surely has as much equity, as against a mortgagee, to sustain his claim, as a purchaser without notice. In this point of view, it is not a question, whether the mortgage, not in possession, can be made personally responsible for the debt; but whether under our statute, the mortgagee can enforce his lien against an individual who has repaired and preserved and kept alive the boat, without notice of the existence of the mortgage. It is not pretended that Brodvvell & Co. had any notice of the existence of the mortgage; it was not entered upon the boat’s papers; and, if the doctrine mentioned by the complainants’ counsel is to prevail, we think the design of the legislature, in the enactment of the statute, will be totally defeated.
    We think that these debts, contracted by the agents of the boat on her account, coming within the provisions of the statute, attach to the boat; and • he creditor, as under the civil law, has not only the personal liability of the owner, but he has the boat — a lien or charge upon the boat — for his debt; which lien or charge follows the boat into the hands of different purchasers. *Tho boat continues responsible for the debt, unless her ownership is changed by a judicial sale. But it is unnecessary to discuss the continuance of this charge upon the boat. In this case the boat was seized for our debt, was sold while thus held, by the sheriff, and the money in his hands now represents the boat. From the time of asserting our debt against the boat, we have, up to this time, kept possession of her, endeavoring to enforce the collection of our debt; and if she is now wrested from our hands by a secret lien upon her, the prime object of the statute is defeated, and the statute, in truth and in fact, becomes useless. Such a construction of the statute would do great injustice to the many creditors of steamboats, while the construction which we contend for, would injure no one, but remedy many evils existing-before the enactment of the statute. This secret mortgage was taken since the passage of the statute. The complainants are presumed to have known that, when the boat went out of port upon the ordinary business of navigation, ail persons who repaired her, etc., had a lien or charge upon her in preference to their lien, and if they desired to protect their lien, it became their interest, as well as the interest of owners, to see that the boat was intrusted only to responsible and prudent officers and crew.
    Morris & Rairden, for a portion of the defendants,
    also submitted an argument:
    
      We claim for the parties whom we represent, that under the act of February 26, 1840 (Swan’s Stat. 209), the parties furnishing supplies to the boat are entitled to a lien and claim against the boat as against all owners and mortgagees. Under a fair construction of the statute, a mortgagee of a boat holds the same relation to the party who furnishes supplies, materials, repairs, or boat stores, that the owner himself maintains, and no advantage in his favor can be taken of the fact of his being a mortgagee, which would not avail the owner. The supplies, etc., furnished being for the support, maintenance, and existence *of the-boat, and without which the boat could not navigate the waters, were intended by the statute to take the precedence over any other incumbrance or lien that might exist on that boat of a character not provided for by the statute, and that the parties taking the mortgage waived by that act their right under the statute, and thereby made themselves owners of the boat as to all claims provided for under the statute.
    Wo claim, therefore, that the legislature not only intended to create a lien on the boat for supplies, etc., but that the claim also attached upon the boat as upon a person, and when enforced against the boat by warrant, that the claims should have priority in the order in which the warrants should be levied, as against all other liens and claims not levied by warrant, and that the boat after such seizure can not be relieved by any owner or other incumbrancer, without first discharging the debt levied by warrant vunder the statute.
    This court has determined in express terms that the law gives a lien upon the boat for all the claims enumerated in the statute. See Steamboat Monarch v. Findlay, 10 Ohio, 386. This case we think substantially decides every position we assume.
    In the case of the Canal-boat Huron v. Simmons, 11 Ohio, 458, this court determined that the liability of the boat was personal, and the claim against the boat was of a higher character than that of a simple lien, and sustains to the fullest extent the construction of the statute for which we contend, and most clearly distinguishes the construction to be given t.o our statute from that which has been given to the statutes of New York by the courts of that state.
    It is perfectly competent for the legislature, as wo apprehend, to give to the boat or water-craft any legal character or liability they may deem wise and expedient for the public good, without conflicting with any unyielding legal or constitutional rights or principles; and, for all legal purposes and consequences, they may be elevated to the dignity of natural persons, subjected to the same obligations, invested with the same rights, *and protected by the same laws, with the natural person ; and such is the power exercised every day by legislative bodies in creating and regulating corporations, with just such legal obligations as we claim have'been conferred on steamboats and other water-crafts by our statute. It does not follow, as supposed by the counsel for the complainant, that the artificial person created by law must be made from animate living beings.
   Hitchcock, J.

A number of questions are raised by counsel, in this case, which, so far as they properly arise, will be considered. Largo debts seem to have been contracted by the owners of the boat in controversy, while she was being built, and for the recovery of which, suits might have been brought against her, under the law of February 26, 1840, “providing ior the collection of. claims against steamboats and other water-crafts, and authorizing proceedings against the same by name.” But these creditors, as we are satisfied from the proof, with but one single exception, by an arrangement made with the owners, on May 3, 1842, agreed to take the boat itself, in satisfaction of their claims, and she was accordingly transferred to Niles, as their trustee. Having thus become, in equity, the owners of the boat, they can not afterward prosecute against her under the before-recited act.

It is true that the defendant Owens denies, in his' answer to the bill, that ho was a party to this transaction, so far as to preclude him from the right of commencing suit under that act ; but the proof satisfies us that he was a party to the transaction, and if so, he must be bound by it. *The circumstance that he has received a judgment at law, can not give him, in this court, any advantage over those who, like him, were original creditors, or over those who subsequently became creditors.

As to the claim of Griffey, it is urged that this claim, at the time of the commencement of the suit, could not be enforced against the boat, inasmuch as the property in the boat was not in the original owner, to whom as well as to the boat, the credit *was given ; and the doctrine is advocated, that by the sale of a boat or other water-craft, the right of pre-existing creditors to commence suit against the boat by name is defeated. As this point is made in a case now before this court, in which it will be fully considered, I shall s.ay nothing further with respect to it, than that it is based upon a principle which we can not, as yet, recognize as being correct.

It is contended, on the part of complainants, that, so far as concerns those who became creditors subsequent to the sale to Brennan and others, they are not entitled to any part of tbo fund in the hands of the sheriff, because, at the time their debts were contracted, the boat was running as the property of Brennan & Co.; while these complainants had a lien upon her by mortgage, which was prior, in point of time, to any claim of those creditors, and that this lien must be first satisfied; and, inasmuch as the fund is not sufficient to satisfy the debt secured by the mortgage, therefore they are entitled to the whole of it.

This part of the argument is urged with much zeal, and no little ingenuity. But it seems to mo, that if sound, it loads to this result, that,- if a steamboat or other water-craft is under mortgage, no suit can bo prosecuted against her, notwithstanding the provisions of the law of February 26, 1840. The execution of a mortgage would in effect repeal, in part at least, the law. Its provisions are general. Any person having a claim of the description specified in the act, may prosecute his claim against the boat by name. But give the statute the construction contended for, and we add to it the proviso, that such boat shall not be incumbered by mortgage. Such construction would furnish the owners of boats with a very convenient method of avoiding the force of this act. They would have nothing to do but to incumber the property with a mortgage.

But, even admitting the principle advocated by complainant’s counsel to be correct, still, as it seems to the court, it is not applicable in the present case. The terms of the mortgage *under which they claim, show that the boat, although running in the name of Brennan and others, was running as much for the interests of the complainants as for the interests of the ostensible owners. The complainants 'were to receive, from month to month, the entire net earnings of the boat. They were, by the terms of the.contract, secure in the reception of $500 per month if the boat earned more, they were to receive such excess. Now, although this might not have been sufficient to make them liable personally to those who might give credit to the boat, yet it is sufficient to prevent them from setting up their lien upon the boat, in preference to the claims of such creditors.

Much is said, in the arguments of counsel, as to the effect of the law of February 29, 1840. On the one side, it is insisted that this law creates a lien upon the craft in favor of a creditor. This is earnestly denied by the other side. It seems to me that, if we can ascertain the intention of the legislature, it is a matter of very little consequence what name we give to the interest or claim of the creditor; it isa matter of very little consequence whether, technically speaking, it be a lien or not. The act authorizes a suit to be commenced against the craft by name. But it is said that natural persons who are creditors may sue their debtors, and that this gives them no lien upon the property of those debtors, at least not before commencement of suit, nor even until after judgment and levy of execution. This is very true. But, in the case of the water-craft, the suit is not only commenced against her by name; but, by the statute, the identical craft is to be seized and sold for the satisfaction of the debt or claim. It may not be technically a lien, but it is something which appropriates the property as effectually, if not more so, than ordinary ■liens.

There may be, and undoubtedly will be, cases' found where it will be extremely difficult to apply this statute so as to do perfect justice. By it a new principle was-introduced into the existing system of jurisprudence; and it would be strange if, in the first effort to introduce this principle, a law should be ^framed free from defects. The statute undoubtedly requires amendments, but such amendments must be made by the proper tribunal ; not by this court.

In this case, the court are of opinion that the fund in the hands of the sheriff should be appropriated, first, to the payment of the costs of this suit; second, to the payment of the claims of those creditors of the boat, who are before the court, excluding the claims of the original creditors, with the exception of David Griffey; and the balance remaining, if any, will be paid over to the complainants. As it is understood that the fund is more than sufficient to satisfy all the creditors, it is unnecessary to determine the order in which those creditors shall bo paid.  