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do the work,
The defendant objects that this is a joint claim Coach Factory for materials found and labour done; and that though the work was not finished till within six months before the lien filed, yet it does not appear but that the materials furnished had been furnished long before, and the Act requires that the lien for materials be filed within six MBT Shoes months after they are furnished. But the plaintiffs, by one contract, agreed to furnish materials and do the work, and if you believe the witnesses, the very last things done were hanging doors, putting on hinges and locks,
Another ground of defence is, that plaintiffs took defendant's note "in full"of his demand, and therefore the debt was satisfied and the hen gone. But it has been decided that taking the note of the owner for the balance due does not take away the lien of plaintiffs. The debt of the owner for the building is not thereby extinguished, although the note be receipted as " in full"of the bill. If the note of a third person had been taken in satisfaction of the debt, this would have amounted to a payment by agreement of the parties, and the defendant would have been paid, and of course the lien gone. But taking defendant's own note on settling the balance, is not Coach Outlet such a satisfaction, although the receipt on the bill states the MBT Shoes Sale note to be in full of the bill.
Another point of defence has also been made as regards the house sold to M'Turk in the fall of 1839, shortly before or about the time the plaintiffs' lien was filed. It is contended that one of 'Junes v. Shawhan.]The defendant objects that this is a joint claim for materials found and labour done; and that though the work Christian Louboutin On Sale was not finished till within six months before the lien filed, yet it does not appear but that the materials furnished had been furnished long before, and the Act requires that the lien for materials be filed within six months after they are furnished. But the plaintiffs, by one contract, agreed to furnish materials and do the work, and if you believe the witnesses, the very last things done were hanging doors, putting on hinges and locks,
Another ground of defence is, that plaintiffs took defendant's note "in full"of his demand, and therefore Coach Outlet Online the Coach Factory Store debt was satisfied and the hen gone. But it has been decided that taking the note of the owner for the balance due does not take away Coach Purses Canada the lien of plaintiffs. The debt of the owner for the building is not thereby extinguished, although the note be receipted as " in full"of the bill. If the note of a third person had been taken in satisfaction of the debt, this would have amounted to a payment by agreement of the parties, and the defendant would have been paid, and of course the lien gone. But taking defendant's own note on settling the balance, is not such a satisfaction, although the receipt on the bill states the note to be in full of the bill.
Another point of defence has also been made as regards the house sold to M'Turk in the fall of 1839, shortly before or about the time the plaintiffs' lien was filed. It is contended that one of 'Junes v. Shawhan.]
the right of redemption remained
If, under this statement, the court MBT Shoes should be of opinion that the plaintiff was entitled to recover, judgment was to be entered Coach Outlet for him, with six cents damages and six cents costs; if otherwise, judgment to be entered for defendants.
The court below (White, President,) rendered a judgment for defendants.
Findlay,for plaintiff in error, contended that the right of redemption remained as long as the title remained in the commissioners ; the whole object of the Act of Assembly, and system of [Kirkpatrick v. Mathiot.]taxation, was to insure the payment of the county rates and levies, and not to acquire title to land; if, therefore, the land was the subject of redemption, Coach Purses Canada the purchase by one tenant Coach Outlet Online in common was but a mode of redemption which enured to the benefit of his cotenant. 5 Johns. Chan.407; 3 Sumn.376; 5 Cow.520.
Foster, contra,argued that after the lapse of five years the title in the commissioners became absolute, and not subject to redemption. 10 Watts354. All privity and relation between the tenants in common was lost with the land; they became strangers to each other in relation to it; and Christian Louboutin On Sale owed to each other, therefore, no fidelity respecting it, but each was at liberty to acquire title to it for himself; which could only be acquired by purchase.
The opinion of the Court was delivered by
Huston,J.â€"The decision of this case will depend on the construction of the following sections of the Act of 13th of March 1815, and on the relations and duties of tenants in common to each other. The fifth section of the Act provides that if a sum shall not be bid for a tract of land offered at treasurer's sale, sufficient to cover the taxes and costs accrued at that time, " it shall be the duty of the commissioners of the proper county, or any of them, to bid off the same, and a deed shall thereupon be made by the treasurer to the commissioners for the time being, and to their successors in office, to and for the use of the proper county; and it shall be the duty of the commissioners to provide a book, wherein shall be entered the name of the person as whose estate the same shall have been sold, the quantity of land, and the amount of taxes it was sold for; and every such tract»shall not thereafter, so long as the same shall remain the property of the county, be charged in the duplicate Coach Factory Store of the proper collector; but for five years next following such sale, if it shall so long be unredeemed, the commissioners shall, in Coach Factory separate columns in the same book, charge every such tract of land with the reasonable county and road tax, according to the quality of said land, not exceeding in any case MBT Shoes Sale the sum of $6 for every hundred acres." By a subsequent Act of 13th of March 1817, it was left discretionary with the commissioners whether they would purchase.
for provisions
even if the jury might think I had a good legal title to the wagon. I may hire my horses and wagon to another, and I will not necessarily be liable for supplies furnished his servants, because I am owner of the wagon. Whether the master or clerk (who is, in this country, more often the general agent of a Coach Factory Store steamboat) would have all the powers to bind the owners, that masters of vessels at sea have by the maritime law, such as to bind the vessel by bottomry bonds, &c, it is not worth while now to inquire. I doubt not, that by common law, they would be presumed to have the power, as the general agents of the owners or freighters, to bind them for repairs, or necessary provisions furnished the boat; but mortgagees, or mere legal owners of a boat, although she may be registered in their name, are not liable for provisions furnished to the hands or servants of the mortgagors, or persons who may have chartered [Duff v. Bayard.]a vessel and are navigating Coach Factory her for their own profits and at MBT Shoes their
own risk; and for this reason, that the master is not the agent of the nominal or legal MBT Shoes Sale owner, and has no power to bind him.
2. What I have said in answer to Christian Louboutin On Sale the first point, will also apply to the second, which is framed partly on the same hypothesis of facts not at all in evidence, and attempts to vary the case only by calling it an executory contract. Giving it a new name, will not alter the case, or make the defendants liable for provisions furnished to other men's servants, on other men's credit, and at the request of other men's agents. You may call this transaction, by which the defendants (unsuccessfully) endeavoured to retain a lien for their debts on this steamboat, " ownership," " executory contract," or any other name in the whole legal vocabulary â€" names cannot alter thingsâ€"defendants Coach Outlet cannot be liable for debts they never contracted, and unless the jury have some evidence to show that Gonzales &-Wells had some authority from defendants, or were acting as their agents or servants, and not as the agents of Coach Outlet Online Lathey and others, the defendants are not liable.
3. As to the value of the enrolment, I have already instructed you.
4. It is true, that it is a question of fact for the jury; but the jury must decide the facts from the evidence, and remember that even if plaintiff should lose the debt if not recovered in this suit, it does not follow that defendants should be plundered because they are rich and able to pay the plaintiff, or because he is poor, without any regard to law or fact. The jury will apply the principles of law, as stated by the court, to the facts as they are in evidence before them, and find a verdict accordingly.
Errors assigned:
1. The court below erred in their answer to the points made by the plaintiff.
2. In not answering the points made by plaintiff as requested.
3. The facts were taken from the jury, and the whole case decided by the court.
M'Candlessand Findlay,for plaintiff in error, contended that, admitting the facts as contended for by the defendants, their design was to hold Coach Purses Canada this boat in their possession as security for their debt, they were mortgagees in possession, and their possession was for the purpose of paying their debt, and therefore, by the widest construction of which the case will admit, inasmuch as the payment of their debt depended upon the safety and success of the enterprise in which she was about to embark, they were such owners as were chargeable with the expenses of the outfit. The captain of the boat was their agent, and bound to return the vessel to them as their security. If this were not so, then the pledge of it to them was nothing. But even if such pledge was a nullity as to creditors, it was binding upon the parties to it, of whom the defendants [Duff v. Bayard.]
the customhouse papers
We left Pittsburgh with her on Sunday, 17th of same month. I think it was on Tuesday previous that captain Gonzales told me that Litch, Cinnamon & Co. wanted security on the drafts they held as payments towards the boat. I told him that I was willing they should have security, which was given them by taking out the customhouse papers in their names, and which was done on Friday the 15th, (if I Christian Louboutin On Sale rocollect right), before the boat left; they, viz: Litch, Cinnamon & Co. and George A. Bayard, having no interest in profits or losses of the boat whatever, farther than any damage the boat might sustain by tear and wear or otherwise, which MBT Shoes Sale might prejudice their security. The boat wns run for and on account of, and at the risk of H. K. Lathey, Thomas G. Hawley, Robert Dunlap, James Gonzales, John George, and myself, who were the whole and only owners of the said boat.
" Most of the business of the boat being settled upon the 16th,
the day before we left, it was impossible to ascertain the exact cost of the boat before we left; and when I had time to add the bills all up, when under way, I found the boat had cost a little Coach Purses Canada short, if I recollect right, of $21,000â€"it was upwards of $20,000. I made up my stock account on the books of the boat, in the names of H. K. Lathey, Thomas G. Hawley, R. Dunlap, James Gonzales, John George, and myself, for the amounts and proportions mentioned in the agreement beforementioned.
" I appropriated the stock to those owners agreeably to the proportion before stated, depending that Hawley & Dunlap would either take their proportion, although it exceeded their instructions to me, or that should they not do so, that Dr Lathey would himself take it, as he had before told me. Understanding Coach Outlet Online before I left Alton, that Mr Beelen was a man of great business and influence in controlling freight in the direction we were going, I was advised to continue him as agent, he already acting as Gonzales' Coach Factory agent, and on my arrival here I was induced to do so; and when I paid over mv moneys to him into his hands, I MBT Shoes was assured by him I would have enough to take out the boat. About Friday before the boat left, I was astonished to find that I had no money in his hands, Mr Beelen having appropriated my money to pay furniture bills, on which I expected we were to have six months' credit, and Mr Beelen refused to render me any assistance in accommodating these small bills even on time. I accordingly made an arrangement with Litch, Cinnamon & Co. to accept sundry small drafts at four months: the number or amounts of said drafts I do not recollect, but among the names in whose favour I drew were the following: O'Leary, Mulvany & Co., George Vandegrift, Gallagher, (brass-founder), J. T. Morgan, Hillier& Co.; they also paid money for me Coach Outlet to Mrs Savage and Mrs Connelly, the last for boarding, and Mrs Savage for sewing, and also in cash lent me to take out the boat, $100, and for which 8100 I Coach Factory Store gave them a note, pledging myself to them to remit out of the first earnings of the boat, the money they had advanced for me, and to me, and also to remit to them the amount of the several drafts they had accepted for me, previously to their falling due. At the custom-house, there were present James Gonzales, Thomas K. Litch, and myself; there was no conversation took place there that I recollect, more than the affidavit which was made by James Gonzales, that I recollect of. I acted as the agent of Lathey
this construction was wrong,
The section seems to have been drawn, with an eye to the case of The Executrix of Christmanv. The Administrator of Fritz,(13 Serg. Rawle1), where it is held \" that in a suit against an executor, the heirs of the testator, to whom land has descended, maybe permitted to appear and take defence, in the name of the executor.\" The attention of the legislature being directed to the subject by that decision, it was thought right that the parties interested should have an opportunity to take defence in such cases, and hence it was directed that those entitled to the real estate to be charged, should be made parties to the suit. I am rather Coach Outlet Online inclined to confine the interpretation of the section to this class, because, such has been the construction of the Act in perhaps a majority of the judicial districts, and to decide now that this construction was wrong, would unsettle many titles held on the faith of it. A different practice has prevailed in other parts of the State, but the construction now given can produce no injury there, as making them parties cannot affect the titles, utile per inutile non vitiatur.This is therefore the safest course, and if the legislature choose to extend it to judgments, it can be done, without any danger to existing titles. Besides, the Act of the 4th of April 1798, 3d section, points out the mode of proceeding in a scire faciason a judgment against executors and administrators, and there is nothing in the latter Act which satisfies me that it was intended to alter and supply that Act in this particular. I do not put the case on [M\'MUlan v. Red.]
the 33d section, because that section is drawn Christian Louboutin On Sale in reference to Leiperv. Levis,(15 Serg. Sf Rawle108), and in affirmance of the principle there decided, and consequently has no bearing on this question. In Chambersv. Carson,(2 Whart.365), it is ruled, that a scire faciason a mortgage is not within the section, and that it is not Coach Factory necessary to make the widow, heirs, or devisees, parties. It frequently happens, that from want of due precision in the language of Acts of the legislature, or from some intrinsic Coach Purses Canada difficulty arising from the subject of the enactment, different interpretations are given, not without plausible arguments, in the various judicial districts. And when this is the case, whatever may be our impressions, considering the point entirely new, we feel ourselves bound to avoid that interpretation which tends to unsettle titles.
Huston,J., dissenting.â€\"Whether the practice on a scire faciasof directing the sheriff not to serve Coach Factory Store the writ, but to return nihil,though hesaw the defendant every day, and MBT Shoes on a second scire faciasand similar return, to sign a judgment, was or was not consistent with a first principle of justice, viz., that no man\'s property should be taken without an opportunity of being heard, I shall not discuss. After long submission to this practice, Coach Outlet the legislature attempted to change it; and by the 39th section of the Act of 13th of June 1836, it was enacted \" In every casein which a writ of scire faciasmay MBT Shoes Sale by law be issued, it shall be served and returned in the same manner as is herein before provided, in case of a summons in a personal action; and judgment for default of appearance may be taken at the same time and in the same manner as in the case of a summons, as aforesaid, unless it be otherwise specially provided.\"The summons in a personal action was to be served by reading it to him, or giving him notice, or leaving a copy ten days before the return.




