
    John McGuire’s Administrator v. Canal-boat Kentucky.
    Money loaned to the owner or master of a steamboat, or other water-craft, for the purpose of paying tolls, or for paying for “ materials, supplies, or labor in the building, repairing,” etc., such craft, can not be recovered in an action against the craft by name, under the act of February 26, 1840.
    Error to the court of common pleas of Miami county.
    The original action was assumpsit, commencod by John McGuire against the defendant, before a justice of the peace, in Miami county, and appealed to the court of common pleas. During the progress of the case McGuire died, and his administrator was, in pursuance of the statute, made party plaintiff.
    The declaration contains the common counts in assumpsit, to which a plea of the general issue was filed.
    At the March term of the court of common pleas, a. d. 1848, the case was submitted to the court without the instruction of a jury. The court found the issue joined in favor of the plaintiff below, and assessed his damages at $107, for which judgment was rendered.
    The case was removed by writ of error to the Supreme Court, the judgment reversed, and the case remanded for another trial.
    At the April term, A. D. 1851, of the court of common *pleas, the case was again tried by the court, and the issue found in favor of the defendant below.
    The plaintiff then moved the court for a new trial, assigning for reasons, that the findings of the court was against the evidence ; that it was against the law of the case ; that it was in favor of the defendant, whereas it should have been in favor of the plaintiff.
    This motion the court overruled, and entered judgment for the defendant, pursuant to the aforesaid finding.
    The plaintiff excepted to the opinion of the court, overruling the motion for a new trial, and his bill of exceptions was sealed by the court, and made part of the record. On the trial the plaintiff “proved the execution of a written instrument, and gave the same in evidence, which was in the following form:
    “ Chillicothe, December 12, 1841.
    “Borrowed of John McGuire $100, for the use of the boat M. B. Ross, payable on demand.
    Wm. McAllister.”
    
      The plaintiff proved that the name of the boat had been changed to the “-Kentucky' that the maker of said instrument, at the time of signing it, was master of said boat. The plaintiff also gave in evidence the deposition of ¥m. McAllister, made part of the bill of exceptions.
    The defendant proved that said boat had been sold three several times, to different purchasers, since the execution of said instrument; that the owner in whose hands it had been attached in this suit had purchased the boat in good faith, for a valuable consideration, without notice of the claim given in evidence, before attaching in this suit.
    The deposition of McAllister, referred to in the bill of exceptions, states that he was master and part owner of the canal-boat “ B. M. Ross that he changed the name to “ Kentucky;” that about six years before the giving of the deposition he had borrowed. $100 from McGuire, *for the purpose of paying tolls for the boat, and that he so appropriated the money, and that he gave a note on the boat. This was all the evidence.
    To reverse the aforesaid judgment, this writ of error is presented, and the errors assigned are:
    1. That the finding of the court was manifestly against the evidence in the case.
    2. The general error, that the judgment was given for the de. fendant, whereas it should have been for the plaintiff.
    J. H. Hart, for plaintiff:
    The plaintiff claims that a fair construction of the act of February 26, 1840, brings this act within its provisions, and makes the boat liable. In the case of the Canal-boat Huron v. Charles W. Simmonds, 11 Stant. Ohio, 461, the court say : “This statute is equitable in its objects, and will receive a liberal construction to carry the design of its enactment into effect.” In Julius B. Webster v. The Brig Andes, 18 Ohio, 202, the court say: “ It is 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.” The court say in Bennett B. Lewis v. The Schooner Cleveland, 12 Ohio, 342, “It has been said by this court, in the case of the Canal-boat Huron v. Simmons, 11 Ohio, 458, that it was the intention of the legislature to substitute the water-craft, in all eases of claim, at the option of the plaintiff, where the owner or master, as such, would bo liable.”
    
      The statute being equitable in its design, and receiving a liberal construction, does not our claim come within the description of those for which water-craft are liable under the statute? (I call the attention of the court to the act of March 23, 1840, Swan’s Stat. 187, sec. 73) : “No boat or float shall shall bo permitted to pass on either side of the canals, unless the master thereof shall first have obtained a clearance therefor, for each voyage of such boat or float, from the proper collector *of tolls on such canals, except,” etc. Also, see sections 74. and 75 of the same act, in same connection. Section 76 of the same act provides “the full amount of tolls chargeable on any boat, and on each and every article of property which shall be on board thereof, or constitute any float at the time such boat or float shall depart from the port or place in which there is a collector from whom a clearance is required, or that shall be taken on board within one mile of such port or place, shall be paid to such collector before he shall issue a clearance for such boat or float.” Again, section 95 of the same act provides : “ The master of every boat or float shall be liable for the payment of tolls and expenses, chargeable'upon such boat or float and its cargo, and it shall be the duty of every collector to detain all articles on which tolls and expenses are chargeable, and the boat or float containing them, until such tolls and expenses shall be paid.”
    In same connection, see section 104 of same act. See also sections 112-114, 131-134, and section 27.
    The question then arises : Does money paid for tolls due by the boat come within the provisions of the statute? This question loads to a discussion of the terms of the statute. Is it not included in the term “ sujDplies,” in furnishing or equipping the boat? Let us look to the definition of “ supply.” This word is derived from the Latin word “ suppleo,” which means, according to Webster, “ to fill up as any deficiency happens; to furnish what is wanted; to afford or furnish a sufficiency.” Without a clearance the boat can not leave port or proceed. Without the full payment of tolls the boat must and will be detained. She has her cargo on, bound for a different port, and without money she can not proceed. The money, then, to pay the tolls, is a supply in furnishing or equipping the boat for her voyage—as necessarily a supply, a furnishing, or equipping, as the flour and potatoes that feed her crew, or the horses that drag her through the water; and for them, or the services of the crew, she would bo liable; yet is neither of these more necessary or efficient in the prosecution *0f her voyage than the payment of toll. Yet we are told that money loaned to the boat, and by the master and owner applied to the payment of tolls, is not within the statute ! Surely any such construction is not within either the letter or spirit of the statute, and is in opposition to the decisions referred to. JE'urnish means to equip, to fit for an expedition, to supply, and it is so defined.
    Another question presented is, that the parties defending were purchasers without notice, and therefore hold the boat free of all incumbrances. To this point we only refer the court to the case of Jones & Watkins v. Steamboat Commerce, 14 Ohio, 413: “A purchaser, at private sale, takes only the interest and title of the vendor, and holds his property as his vendor held it. The one can convey no better title than he has, and the other can acquire by his purchase but the same. The private sale is the act of the owner for his individual benefit, and the purchaser may secure himself by taking indemnity against existing liabilities from the vendor.” The same doctrine is maintained in Steamboat Waverly v. Joseph Clements, 14 Ohio, 28. On this point nothing need be said further, unless it be to call the attention of the court to the language of Judge Hitchcock, in Kellogg, Kennel & Crane v. Brenan and others, 14 Ohio, 90. “ It may not be technically a lien, but is something which appropriates the property as effectually, if not more so, than ordinary liens.” 12 Ohio, 341.
    I would refer to the case of Steamboat Arkansas Mail v. Fox, 4 West. L. Journal, 527, Hamilton county, May term, 1847. The court held in that case, that a due-bill given in the name of the steamboat and owners, signed by the master, for money borrowed, where it did not appear that the money was not applied to the use of the boat, was within the statute authorizing proceedings against the water-craft by name, and that a due-bill, so signed, was competent evidence to be submitted to a jury. Whether such a due-bill, by itself, and without other evidence, was sufficient to sustain the action, the *court said was not necessary to be decided, although it was intimated that it would be sufficient of itself.
    In view of the facts, the law, and the uniform decisions'of the court, I claim that the court below erred in refusing to grant a new trial, and that their judgment should therefore be reversed.
    
      Smith and Yallandigham, for defendant,
    submitted the case -without argument.
   Hitchcock, C. J.

The facts of this case, as disclosed by the bill of exceptions, so far as the same are necessary to be stated, are simply these: McAllister, who was part owner and master of the canal-boat “ M. B. Ross,” subsequently called the “ Kentucky,” borrowed of McGuire $100 for the purpose of paying tolls for the boat, and £o appropriated the money. The probability is, that the note in evidence on the trial was given for this money, but of this there is no certain proof. But admitting such to be the case, the question arises whether the plaintiff had a legal right to maintain the action and recover a judgment.

The solution of this question depends upon the construction of the act of February 26, 1840, “ providing for the collection of claims against steamboats and other water-crafts, and authorizing proceedings against them by name” (Swan’s Stat. 209), under which this action is brought. The first section provides, that “steamboats and other water-crafts, 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 wharfage; and also for damages,” etc. And in such cases, by another section, the person having the demand may proceed against the owner or master, or the craft by name. We have always been willing to give this statute a liberal construction, for the purpose of carrying into efloct the "'-intention of the law-making power in its enactment; but we can not, by construction, extend it to cases not within its purview. There may possibly be other cases where there would be as strong reasons for the application of the extraordinary remedy here allowed, but that is a matter for the consideration of the general assembly, not of this court.

The ai’gument urged to sustain the claim in this case, is, that tolls must be paid upon boats navigating the canal, and that without the payment of such tolls no boat can have a clearance. This is true; still, nothing is said in the act of 1842, under which this suit is brought, about tolls. It does provide that for wharfage, jiroccedings may be had against the craft by name. Tolls are not within this act.

“ For materials, supplies, or labor, in the building, repairing, or equipping” the craft, an action may be had against her by name, if furnished on her credit. The cause of action in the case now before us is not embraced in this clause of the act. The action is not brought for materials, supplies, or labor. It is brought for money loaned to pay for tolls.

But suppose this money had been loaned to pay “ for materials, supplies, or labor, in the building, repairing, furnishing, or equipping,” would the plaintiff have a right of action against the boat by name? We think not. There is nothing in the act to meet such a case. A promissory note might be given, the consideration of which was “materials, supplies, or labor,” and upon the exhibition of the note, with proof of the consideration, a plaintiff might perhaps recover, under this statute. But there is nothing in the act which gives any such right of action to the lender of money, although that money may have been applied in the purchase of, or in the payment for, materials, supplies, or labor. And to hold that such lender might have an action against the craft by name? would be to subrogate him to the rights of the material-man, the furnisher of supplies, or the laborer. Courts of law do not possess this power of subrogation.

It is said, however, that cases have been decided upon the ^circuit, by this court, in which it has been holden that such lender of money might maintain an action under the statute. Tery possibly this may be true; and, as a matter of fact, we know that it has been differently decided upon the circuit. It was in consequence of this contrariety of decision that this case was brought to this court, and we are unanimous in the opinion that this plaintiff had no right of action against the boat “ Kentucky,” by name.

The judgment of the court of common pleas is affirmed with costs.  