#### A DARK COLORED NEWLY DECKED SCOW *BOAT, pl'tiff in error. vs.*JOHN LYNN, *def't in error.*

) *Emr t, Milmukee comi¡/.*( *)*

A scow-boat, belonging to a particular port, and used as a lighter and wood boa t in the river and harbor, is not liable to bo proceeded against by attachment under the not to provide for the collection of demands against boats and vessels.

That act was intended to apply to steam-boats and sail, or other vessels of tho larger'class, engaged in carrying and transporting persons and property from port to port, and does not embrace scow-boats, ferry-boats, and other smaller craft, confined in their use to particular ports or places.

Lynn, the defendant in error, took out an attachment from a justice of the peace in Milwaukee county, against the Scow-Boat, under the act to provide for the collection of demands against boats and vessels, for tho purpose of collecting a demand for work and labor done on tho boat in building it. Tho boat was owned by Dousman & Brown, of Milwaukee. On tho trial, the justice gave judgment for the plaintiff for $27 87, from which Dousman & Brown appealed to tho Milwaukee District Court. On the trial of the appeal, it appeared in the evidence for the plaintiff, that tho plaintiff had done work and labor on the boat in building it; that the boat was designed and used as a lighter in the river and harbor of Milwaukee, and in carrying out wood to the steam-boats in Milwaukee Bay, and was not used in navigating from port to port. Tho counsol for Dousman & Brown moved the court to instruct the jury as in case of a nonsuit, on the ground that the scow-boat was not a boat or vessel within the moaning of the act, ana consequently, was not liable to the proceeding; which instruction the court refused to give, and instructed the jury that the scow-boat was a boat or vessel within the meaning of the act, and that the plaintiff should recover if the jury should find that he had performed the work and labor charged in the declaration.

Tho jury returned a verdict in favor of the plaintiff, upon which tho court rendered judgment; to reverse which judgment the owners of the scow-boat have prosecuted this writ of error; and the only question in the case arises upon the instructions refused, and those given by the court to the jury.

*79The case was argued, *ex parte,*by Welis for the plaintiff in ■error.

The only question for the court to determine is; whether the scow-boat is a boat or vessel within the meaning of the law or nor. The words, *boat*or *vessel,*are to be governed by the words, *navigate and.navigation,*which mean, to sail as in ships; passing from port to port for the purpose of carrying persons or property. A scow-boat or ferry-boat is not engaged in navigation, in the proper sense of the word, and is not within the meaning of the statute.

Where the proceeding is by attachment under the act, it must be against the boat by name; this shows that the legislature intended to apply it to a larger and different class of vessels, which in all the civilized world have distinctive proper names. This scow-boat has no name, it is not sued by name, but by description. '‘This is a material matter for consideration. A craft that was too insignificant to have a name was too unimportant to engage the attention of the legislature.

■ The statute of the Territory is similar to the statute of New York upon the same subject; the only material difference is, that in that State the word *ships*is used instead of the word *boats,*as in the act of our legislature. 1 Rev’d Stat. N. Y. 130. The difference in the words can make no difference in construing the meaning of the law. In that State, the courts have decided in numerous cases, that boats of a much more important class than this scow-boat, were not liable to this mode ofproceeding, as not being within the meaning of the law. *Walker and others vs. Sloop Rochester,*1 Wendell, 557; *Johnson vs. S. B. Sandusky,*5 Wendell, 510; *Farmer’s Delight vs. Lawrence*& *Sneden, 5*Wendell, 584; *Burkbeck vs. Hoboken Ferry Boat,*17 John Rep. 54; 5 Cowen, 564.

Chief Justice Duwn

delivered the following opinion of the court:

The proceedings in this case were originally instituted before a justice of the peace of Milwaukee county, by John Lynn, defendant in error, against the Scow-Boat, plaintiff in error, under the statute of this Territory providing for the collection of demands against boats or vessels used in navigating our waters. The proceeding was commenced in the usual form, by filing a complaint, which was for work and labor performed upon said scow-boat, supposed to be the property of Dousman & Brown. On the re*80turn of the writ, Brown appeared, as one of the owners of the scow, and defended against the claim or demand of said Lynn, defendant in error and plaintiff below, and upon trial judgment was rendered for Lynn against the scow for the sum of *‡42*50 damages, from which decision the said owner of the scow took an appeal to the District Court of Milwaukee.

On the trial of tho cause in the District Court, it appeared in evidence, that the said scow was used as a lighter in tho Milwaukee river and bay, in transporting from and to the boats and other vessels in the bay, and in carrying out to the boats and vessels, wood, &c. ,• and that it was not a sail-vessel, and was not used in navigating or sailing from port to port, but merely as a lighter.

The cause was submitted to the jury, and the counsel for the defendant moved the court to instruct the jury, that the scow was not a boat or vessel within the meaning of tho statute; that the same was not liable under the “ act to provide for the collection of demands against boats and vessels navigating the waters of this Territory;” which instruction was refused, and the court charged the jury expressly, that the scow in question was a boat or vessel within the meaning of the said act: to which refusal and charge the defendant excepted. The case is thus brought into this court upon error to tho decision of the 'District Court in refusing tho charge asked, and giving the charge which was given to the jury.

The only question to he decided by *this*court is, *whether the*scow in question is or not a boat or vessel within the meaning of the act of the legislature to which reference has been made. In considering this question, we must examine that part of the act which is applicable, and upon which the proceeding in this case is based. In Revised Statutes, page 168, sec. 1, it is provided: *“*That every boat or vessel used in navigating the waters of this Territory, shall be liable,” &e. Where a law is couched in words in definite and limited sense, entirely free from ambiguity, and such as cannot be expanded or dilated in their signification, then there is no room for construction or inference from any thing out of the plain import and meaning of the words used. But it does-frequently occur that words are used in our statute books, which have so very comprehensive a meaning, and may be applied in so many ways, that we are compelled to resort to various aids to enable us to apply tho meaning intended by the legislature. “ Navigating,” in the act before us, in its most extended meaning, might *81embrace all and every description of boat, vessel, or water craft, employed in floating persons or property upon, or over our waters. But wo must look to the various provisions of this act, and from the whole, taken together, giving to each provision an effective and useful construction, in reference to the evil intended to be prevented, and the remedy to be secured, arrive at such rational conclusion as is warranted by the soundest principles of construction. Thereby we will elicit the intent and meaning of the legislature, and this should always govern in expounding laws which are at all doubtful or ambiguous.

What are the claims which may be proceeded for under the provisions of this act? “ 1st. For all debts contracted by tho master, owner, agent, or consignee, on account of supplies furnished for the use of such boat or vessel; on account of work done or services rendered on board of such vessel or boat; or on account of labor done or materials furnished by mechanics, tradesmen, or others, in and for building, repairing, fitting out, furnishing, or equipping such boat, or vessel. 2d. For all sums due for wharfage or anchorage of such boat or vessel, within this Territory. 3d. For all demands or damages accruing from the non-performance or malperformance of any contract of affreightment, or any contract touching the transportation of persons or property, entered into by the master, owner, agent, or consignee of the boat or vessel on which such contract is to be performed: and 4th. For all injuries done to persons or property by such boat or vessel.” The provisions of a single statute, or one embracing but one subject matter of legislation, should be, and usually are consistent, having direct and pertinent relation, the one with the other. In the speci-catioti of claims which may be recovered against a boat or vessel under this act, what reference or application can the words,“master,” “ consignee,” “ fitting out,” “ furnishing or equipping,” “ anchorage,” &c. have to a scow, used as a lighter and wood boat to vessels or steam-boats in the river and bay of Milwaukee? Again, it is provided that such claims as have been enumerated may be proceeded for, *against the vessel or hoot navigating*the waters of this Territory, *by name.*Immemorial usage has given to commercial or *navigating*boats or vessels, a distinctive proper *name,*and to such this provision applies, and not to scows, ferry-boats, yawls, arks, flats, canoes, &c., which have technical descriptive names and not *proper*names, The remedy intended to be affor*82ded to meritorious claimants under this act, is obvious. To aid commerce and trade, inducements are held out in the law, to builders, repairers, owners of boat stores, merchants and dealers who wish to contract for carrying freights, to engage and contract with owners, masters, agents or consignees of'boats or vessels navigating our waters, and engaged in the carrying and transporting and transportation from port to port, of persons and property, through the prompt remedy given them against the boat or vessel so engaged, *by name,*without compelling them to resort to a suit against the master, owner, agent, or consignee, who may not be at the time within the jurisdiction of the courts in the Territory whore the credit is given. Such a provision would not be necessary in relation to scows, &c., which are not sent from abroad to navigate our waters, but are confined to particular ports or wharves, rarely go out of sight of the port where they have a special and limited use, and are always owned. It is scarcely required further to illustrate or draw the line of distinction, as must have been intended by the legislature. We may be aided, however, by decisions of the highest courts in the States on similar statutes. In the case of the *Farmers' Delight vs. Lawrence*& *Sneden,*5 Wendell, 564; the court were of opinion, that the New York acts were not applicable to a boat whose ordinary business was confined to a particular port or place, and out of sight of which it never went, except temporarily and for a special purpose. In the case of the owners of the *Sloop Rochester vs. Walker*& *McFarlan,*1 Wendell, 577, the court said; “ it never could have been the intention of the legislature to embrace within these acts, the innumerable row boats, sail boats, scows, and other small craft which crowd our harbors; they are not within the reason of the law, nor within its terms as they are ordinarily used. They are not designated as ships or vessels in common parlance. These terms are usually applied to vessels of a larger class.” See *Burkbeck vs. Hoboken horse ferry-boat,*17 John. Rep. 54; and *Johnson vs. S. B. Sandusky, 5*Wendell, 510; where the same opinion is recognized.

Weu,s, for pl’tff in error.

We are, therefore, unanimously of opinion, that the District Court erred in refusing the instructions asked, and in giving the instructions which it did, and that the decision be reversed, and the cause remanded to the said District Court, for such other proceedings as may be proper and legal.