author: Mullin, J. Davies, J.

text:
    The Pennsylvania Coal Company v. The President, Managers, &c., of the Delaware and Hudson Canal Company.
    Speohto performance. Courts of equity will not entertain jurisdiction to compel the specific performance of a contract, when the plaintiff can obtain adequate redress by his action at law for damages. ■
    When the plaintiffs’ rights cannot be protected or enforced at law except by numerous and expensive suits, equity may interpose to give the party redress by injunction or specific performance; but in such cases, generally, the plaintiff must first establish his right at law before a court of equity will interfere.
    This action was brought by the plaintiffs against the defendants to compel a specific performance of certain covenants entered into between the defendants and plaintiffs in July, 1851, for the passage of boats of the plaintiffs, laden with coal, in and along the canal of the defendants.
    The plaintiffs were created a body corporate by the legislature of Pennsylvania, in 1838, for the purpose of mining coal and the transaction of the usual business of companies engaged in the mining, transporting to market and selling coal.
    The defendants were created a body corporate by the legislature of this State, in 1823, for the purpose of constructing a canal between the Delaware and Hudson rivers, and the said corporation proceeded to and did construct a canal between said rivers, and the said defendants have ever since been in the receipt of tolls from boats navigating said canal.
    In 1851, the plaintiffs being engaged in the mining of coal in the State of Pennsylvania and transporting the same in their own boats on the defendants’ canal from Hawley, in the county of Wayne in said State, to the terminus of said defendants’ canal at Eddyville, in the county of Ulster, made and entered into an agreement in writing, under the hands of the proper officers of said companies and the seals of said companies, wherein and whereby the defendants, for a valuable consideration, covenanted and agreed to and with the plaintiffs at all times thereafter to furnish to any and all boats owned or used by the said plaintiffs for the purpose of transporting coal, entering the said canal, or by railroad connecting with the said canal at or near the mouth of the Wallenpaupaek river, or containing coal, entering as aforesaid, belonging to or transported by or on account of the said plaintiffs, or containing coal entering as aforesaid, in which, or the transportation of which, they may be in any manner interested, or the transportation of which the plaintiffs might authorize or require, all the facilities of navigation and transportation which the defendants’ canal shall afford when in good navigable condition and repair, to boats owned or used by any other company or persons, or belonging to or used by or containing coal transported by, for or on account of said company, its successors or assigns, the defendants charging and collecting a toll on coal transported in pursuance of said agreement, provided for therein.
    It would seem that the parties had acted under this agreement from the time it was made in 1851, down to the' túne of the commencement of this action in August, 1854. At which time it was claimed by the plaintiffs that the defendants violated their agreement in this, that they refused to permit the empty boats of the plaintiffs arriving at the lock at Eddyville, to pass through said lock in the order of their arrival, but compelled them to pass alternately with the boats owned by the defendants, although such boats might have arrived after the plaintiffs’ boats, and also postponed the passage of the plaintiffs’ boats through the lock, until all transient boats had been passed through, if such transient boats arrived before all of plaintiffs’ boats were passed through.
    The plaintiffs in their complaint set out .the aforesaid provision of said contract, and alleged its breach as stated, and that damages had accrued to said plaintiffs thereby, and prayed judgment that the defendants might be enjoined from violating said contract, and that they be compelled specifically to perform the same. A temporary injunction was issued pursuant to the prayer of the complaint.
    The defendants in their answer admitted the making of the contract, but denied any breach of it.

      The temporary injunction was vacated by the justice of the Supreme Court, who granted it on the ground that the case made by the complaint did not authorize an injunction, and also because the whole equity of the complaint was denied by the answer.
    The cause was brought to a hearing before Justice Gould at the Ulster Circuit, in February, 1856.
    On the trial it was proved by one Longyear, that he was in the plaintiffs’ employ in 1854, and that it was his business to see the plaintiffs’ boats were locked in order through the lock at Eddyville, which connects the Delaware and Hudson canal and the Eondout creek. The plaintiffs had, during that season, nearly 500 boats running on said canal. The plaintiffs’ boats were towed up to the lock from Port Ewen on the Hudson river—the defendants’ boats from Eondout, by small steamboats owned by the several companies. Each steamboat would tow up from five to thirty-five canal boats at a time—as many as happened to be ready to go up. Lf a tow of defendants’ boats arrived after a tow of "plaintiffs’, and the two tows were waiting lockage, the defendants would immediately allow one of their boats to be locked through and then one of the plaintiffs’ boats, and so on alternately, and this was done without regard to the time which had elapsed between the arrival of the different tows. If a tow of defendants’ boats came up while a tow of plaintiffs’ boats were partly locked through, they would lock the remainder through alternately. It required about ten minutes to lock a boat through. The longest time he ever knew a boat of the plaintiffs detained by the rule of alternating was about one day. In two instances, he knew a loaded boat of defendants to pass through the lock at Eddyville, go down to Eondout, reload and come back to the lock and be locked through, going up, before a boat of plaintiffs which had been waiting at the lock to be locked through, going up, when the plaintiffs’ boat went down. The plaintiffs had, that season, about 150 more boats running on the canal than the defendants.
    On cross-examination, the witness testified, that the boats coming down were locked through as they arrived. If plaintiffs’ tow arrived before defendants’ were all locked through, the defendants would commence alternating the passage of the several boats as before stated. Transient boats had a different steamer to tow them up. When they arrived they were immediately locked through, and as they arrived. No distinction was made in locking up between defendants’ and plaintiffs’ boats. At the time the defendants’ boat was locked down, discharged its cargo and returned before plaintiffs’ boats were locked through, there was some break on the canal; the plaintiffs’ boat was locked up in its turn, pursuant to the foregoing order of locking. He had never known a boat of the plaintiffs passed through down, whilst a boat of defendants lay there waiting to be locked up, or the former to be locked through up before the latter.
    On direct examination resumed, the witness testified, that when there were at the lock ten boats of the plaintiffs, and after them say ten transient boats, and after them ten boats of the defendants came up, the defendants’ would first lock through, five of the plaintiffs’ boats alternately with five of the defendants’, and then all the transient boats were locked through before any of the others.
    The plaintiffs’ counsel having rested, the defendants’ counsel moved to dismiss the complaint, on the grounds:
    1. That the acts of the defendants did not amount to a breach of the agreement, or entitle the plaintiffs to the relief demanded.

      2. The plaintiffs have not shown facts sufficient to entitle them to recover.
    3. They have a perfect remedy at law, and therefore the complaint should be dismissed.
    The court granted the motion and dismissed the complaint. To which ruling and decision the plaintiffs’ counsel excepted.
    The plaintiffs then appealed to the General Term of the third district, and that court affirmed the judgment. And from that judgment the plaintiffs appeal to this court.

      J. K. Porter, for the appellants.

      A. J. Parker, for the respondents.
   Mullin, J.

Two questions only are presented for consideration on this appeal. These are: 1st. Whether the contract between the parties had been violated. And if it has, then, 2d. Is the plaintiffs entitled to a specific performance of the contract.

1. Have the defendants broken the contract ?

The defendants obligated themselves by the agreement to furnish to the plaintiffs’ boats all the facilities of navigation and transportation which their canal should afford, when in good and navigable condition and repair, to boats owned or used by any other company or person, or owned or used by the defendants for the transportation of coal.

The contract, it will be perceived, is not, as the plaintiffs’ counsel seems to construe it, that the defendants will afford to the plaintiffs’ boats all the facilities of navigation that the canal, when in good order, shall afford, but it is to furnish all the facilities to the plaintiffs that the canal, when in good order, shall afford to any other person’s or company’s boats, including defendants’ own boats.

Before the plaintiffs can insist that the contract has been violated as to its boats, they were bound to show what facilities were afforded by the canal, when in good order, to other boats. Ho difference is shown to have been made between the plaintiffs’ boats and those of other owners, in the facilities extended in the business of navigating the canal.

The defendants, as owners, had the right to prescribe such reasonable rules and regulations for the government of vessels passing along their canal, as their directors deemed best calculated to promote their own interests and the interests of those engaged in navigating the canal. Such regulations must embrace the order in which boats should pass through the locks. Such regulations, while resting largely in the discretion of the officers of the company, must, nevertheless, be reasonable. How, it appears that all boats passing to the Hudson river, were locked through the Eddy-ville lock in the order of their arrival at such lock. This regulation is not complained of; but it is insisted that the same rule should be observed in locking up through the same lock the empty boats, and that the omission to do so is a breach of the agreement. It is claimed that the detention of plaintiffs’ boats, if they first arrive at the lock, until boats of the defendants, subsequently arriving, are locked through alternately with plaintiffs’, causes unreasonable delay, and is an unjust detention of the plaintiffs’ boats.

When the plaintiffs’ boats arrive at the lock first, it does seem to be oppressive to require any of them to be delayed until the boats of other persons, subsequently arriving, are locked through. But it must sometimes happen that the defendants’ boats arrive first, and if they are delayed until the plaintiffs’ boats, subsequently arriving, have been passed through, the plaintiffs have the benefit of the same rule which operated injuriously when their boats were first at the lock. While the rule is uniformly and impartially applied, it is difficult to see how it operates to the prejudice of the plaintiffs rather than to that of all others navigating the canal. While it is true that the plaintiffs owned the largest number of boats, it does not follow, nor is it proved, that- their boats are uniformly first at the lock on their way back to the mines. If they are not, then they must take the delay imposed upon them by the regulation in compensation for the benefit derived from passing alternately with boats arriving at the lock before those of the plaintiffs.

It does not appear that the regulation complained of was a new one. It may have been, and in the absence of both allegation and proof to the contrary, I think we are bound to presume that it had been in force from the making of the contract; and if so—if the plaintiffs had acquiesced in it for so long a time—it is somewhat late to complain of it.

If the regulation was designed to embarrass the plaintiffs, it is difficult to see why it should not have been applied to the boats coming to as well as to those going from the Hudson. There would seem to have been some reason for the discrimination, but what it is, is not disclosed by the ease.

A reason is suggested by the respondents’ counsel which would seem to account for the regulation, and is probably the true one, and that is, that as but a single boat, or at most but a very limited .number of boats is being laden at the same time, by either party, it is no cause of delay that the empty boats arrive one after the- other, at intervals of twenty minutes; for if twenty or thirty boats arrive at one time, they must be detained until those ahead are loaded, and the result would be, that while nothing would be gained by the plaintiffs, considerable time would be lost by the other boats compelled to wait until all of plaintiffs’ boats had passed through. By the regulation, it would seem that plaintiffs’ boats are passed up as fast as they are required to be loaded, and that unnecessary delay to the defendants’ boats is avoided.

A preference seems to be given to transient boats over those of either the plaintiffs or defendants. In what business these transient boats were employed, or them number, or who were the owners, does not appear. But it is probable that they were boats engaged in the transportation of property other than coal, and that the number was small compared with the number owned by the plaintiffs or defendants. If these conjectures are correct, they would account for the preference given to such boats in passing the lock. It would be very harsh to require a man, owning a single boat, to be detained until thirty or forty boats, arriving ahead of him, were got through the lock. And, when a preference was given to one such boat, it became necessary to extend it to all, and it does not appear that the preference delayed the loading of any of the plaintiffs’ boats. This delay, and not that at the lock, would be the cause of damage of which the plaintiffs could justly complain. If the boats, on arriving at their place of destination, would have been detained as long before being loaded as they lay at the lock, it is not perceived how the plaintiffs could be damnified.

In a word, the regulation is one that the defendants had the right to make; it is not shown to be either unreasonable or unjust, nor that it has been the cause of any real injury to the plaintiffs. It seems to have been acquiesced in for a long time, and no reason is perceived why it should now be repudiated or annulled.

2. But if I am wrong in supposing the contract not to have been broken by the defendants, the question remains to be considered, whether the plaintiffs are entitled, on the case made, to a specific performance of the contract.

There is no. doubt as to the power of a court of equity to decree the specific performance of a contract in relation to personal property. (2 Story’s Eq., § 716 to 731.)'

But, as in general, the injured party can be fully indemnified for any loss sustained by a breach of the contract relating to personalty, by damages which may be recovered in a court of law, courts of equity refuse to entertain jurisdiction or to compel performance in that class of cases. (Story’s Eq. Jur., 717; Woodward v. Harris, 2 Barb. S. C., 439; Phillips v. Berger, 8 Barb., 527.)

When, however, the case is one in which the party cannot be made good by damages, and strict performance of the contract can alone protect him against loss, then the court will entertain the cases and grant the relief demanded. (Story’s Eq. Jur., § 718; 8 Barb., 527.)

The damages sustained by the plaintiffs by reason of the detention of their boats, are either the loss of time and expenses of the hands employed on the boats, and the value of the use of the boats, or the loss of the profits which might have been earned on coal which might, but for the detention, have been sent to market and sold. When the length of the detention, and the number of boats and men are ascertained, there would be no difficulty in ascertaining the amount of damages which the law will allow to the plaintiffs.

When it is settled by the verdict of a jury that the defendants have violated the contract in applying to the plaintiffs’ boats' the regulations complained of, and that the detention occasioned by it is unlawful, that question will not be again •open to litigation, and the plaintiffs will thereafter be only required to make proof of the damages sustained; and, unless the damages for which the -defendants are thus made liable are much less than the benefit derived from the enforcement of the regulation and the costs of the litigation, the defendants will be compelled to abandon the regulation and permit the plaintiffs’ boats to pass the locks in the order of time of their arrival.

There can be no difficulty in obtaining a full compensation for damages in an action at law, if it can be said in any case damages compensate for a breach of contract.

As the contract in' question is without limitation as to duration, a persistent refusal to perform the contract according to its true intent and meaning would involve the parties in a great number of suits at law, and, consequently, in very great expense and trouble.

When a right can only be adequately protected or enforced by numerous and expensive law suits, courts of equity have interposed their jurisdiction, and have given the party redress by injunction, specific performance, or other adequate relief, in order thereby to prevent litigation and the mischief which results from it. (1 Story’s Eq., § 64 [a], 64 66, 67.)

As jurisdiction on this ground was more frequently invoked in cases of private nuisance than any other, it was made a condition precedent to the right to file a bill, when the right claimed was doubtful, that the complainant should have established his right at law. (Olmstead v. Loomis, 6 Barb., 152; Story’s Eq., § 925 to 930; Van Bergen v. Van Bergen, 3 Johns. Ch., 282; Reed v. Gifford, 6 id., 19; Fisk v. Wilbur, 7 Barb., 395; Seneca Woolen Mills v. Zillman, 2 Barb. Ch., 9.)

It seems to me that this is a case in which the plaintiffs’ right should be settled at law before coming into equity for relief. A court of law is the appropriate forum in which to obtain relief. And as bis right to relief here involves the determination of a question which a jury should pass upon, I think if the case is one which a court of equity should ever entertain, it should not be done until the plaintiff has recovered in an action at law.

On the facts found in this record, I entertain no doubt but the plaintiffs were rightly nonsuited, as well upon the gropnd that no breach of the contract was proved, as upon the ground that the plaintiffs’ remedy'was at law and not in equity.

The judgments of the General and Special Terms should he affirmed, with costs.

Davies, J.

The defendant is the owner of a canal extending from tide water on the Hudson river, to the interior of the State of Pennsylvania. The plaintiff is the owner of extensive coal mines, bordering on the defendant’s canal, which it mines for transportation to market. For such purpose, it is the owner of a large, number of canal boats navigating the defendant’s canal. By an agreement or deed, made and entered into between the parties to this action, dated 29th July, 1851, the defendant covenanted and agreed with the plaintiff, to furnish to any and all boats owned or used by the plaintiff for the purpose of transporting’ coal entering the said canal, by railroad connecting with the said canal, at or near the mouth of the Wallenpaupack river, or containing coal, entering as aforesaid, belonging to or transported by or on account of the plaintiff, in which coal, or the transportation thereof, the plaintiff might he in any manner interested, all the facilities of navigation and transportation which the said canal should furnish, when in good, navigable condition and repair, to boats used by any other company or person, or belonging to or used by or containing coal transported by or for or on account of the defendant. The plaintiff alleged a breach of said contract or agreement in this, that the number of boats employed by the plaintiff in the transportation of coal upon said canal, was greater than' the number employed by the defendant therein, and that the boats of the plaintiff, and those employed by it, made their trips in much shorter time than the boats of the defendant, and therefore the act of the defendant in neglecting and refusing to pass the'boats of the plaintiff through the locks on said canal in the order in which they arrived at the locks respectively, but delaying them until one of the boats of the defendant, or of some individual, arriving after the plaintiff’s boat at such lock, had been passed, was highly injurious and of great detriment to the plaintiff. The plaintiff prays judgment, that the defendant may be decreed and adjudged to use and manage' said canal and the locks thereon, in such manner as not to impede, hinder or delay the boats of the plaintiff navigating the said canal, and used for the purpose of transpoi’ting coal entering said canal at or near the mouth of the "Wallenpaupack river, or containing coal, and entering as aforesaid, 'belonging to or transported by or on account of the plaintiff, and may be restrained from giving the preference of passage through any lock thereon to some other boat than the plaintiff’s, although the latter arrived first at such lock, and that the defendant might be decreed specifically to perform its said agreement with the plaintiff.

The cause was tried by the court without a jury, and the court found as matter of fact, that the plaintiff had not proven a breach of the contract, and the court thereupon gave judgment for the defendant, denying the relief asked for, and denying the injunction prayed for and dismissing the complaint with costs. The General Term, on appeal, affirmed this judgment, and the plaintiff now appeals to this court.

The only 'ground upon which the plaintiff could invoke the aid of a court of equity to decree a specific performance of the contract, and to restrain the defendant from its violation, was that there had been a breach of the contract and a violation, or a threatened violation of it. This was the foundation of the plaintiff’s edifice, the corner stone upon which it rested. The finding by the court, that no breach or violation of the contract had been proven, entirely demolishes all claim of the plaintiff to any equitable relief, bio threatened violation of the contract is alleged or pretended, and it follows that the judgment of the Supreme Court on this state of facts was correct, and the same should be affirmed.

"Judgment affirmed.


source: Caselaw Access Project

author: Davies, J.,

license: Public Domain

text:
    Winter S. Bond v. James S. Willett.
    A manual interference with the goods of the defendant, is not necessary to constitute a valid levy.
    Where the sheriff is stayed in his proceedings on the execution and levy made under it, by an order of the court, and he resumes Ms control as soon as the order is vacated, he will not be deemed to have abandoned Ms levy during the continuance of the order.
    In this case, the sheriff had an execution against the property of Bemsen & Dingee, and proceeded to their store, and informed them of his business, exhibited the execution, and indorsed a levy of the same upon it, while in the store. By an arrangement with one of the partners, the officer left the goods in the store until the next day, when he was served with an order staying proceedings on the execution. Within about four weeks the order was vacated, and the sheriff resumed his control of the goods.
    Pending the order, the plaintiff, Bond, bought the goods, and, after the order was vacated, the sheriff took possession of the goods, and the plaintiff brought this action.
   Davies, J.,

delivered the opinion of the court, which held the levy to be good, and that, under the order staying proceedings, there was no abandonment of the levy.

The case is reported in 27 How. Fr., p. 47.


author: Denio, Ch. J. Ingraham, J.

text:
    Henry M. Strong et al. v. The Sun Mutual Insurance Company.
    Where, by the terms of the contract of insurance upon the body, tackle, apparel, &c., of a propeller, the insurers are “not to be liable for the bursting of the boilers,” the language is to be understood that they are not to be liable for damage resulting to the vessel or otherwise, “on account of” the bursting of the boilers.
    “Eor,” construed to mean, “on account of,” “by reason of,” “because of," &c. That which was excepted from the risk by the insurers, by the use of such language, was any damage resulting as a consequence of the bursting of the boilers.
    Appeal by the plaintiffs from a judgment of the Superior Court of Buffalo, rendered in favor of the defendant, on a demurrer to the complaint. The action was upon a time policy of insurance, upon the body, tackle, apparel and other furniture of the propeller Challenge, the property of the plaintiffs, valued at $28,000, commencing at the date of the policy, the 22d April, 1853, and ending on the 30th Hovember following, for navigation on the lakes and tributaries. The amount insured by the defendant was $12,000.
    The complaint contained the following clauses: “And the said plaintiffs in fact further say, that it was further provided in and by the said policy of insurance, among other things, that the said defendant was not to be liable for any derangement or breakage of the machinery, or bursting of the boilers, unless occasioned by stranding; but if the said pro•peller should take fire, or any parts of the machinery or boilers be damaged thereby, the said defendant, as in and by the said policy provided, was to be liable therefor. And the said plaintiffs further say, that it was also provided in and by the said policy, among other things, that the said defendant was not to be liable for fuel, wages and provisions, nor for any expenses of any delay, consequent upon repairs of any kind.- The adventures and perils insured against by the policy, according to the statement of the complaint, were “of the seas, men-of-war, fires, enemies, pirates, rovers, thieves, jettisons, letters of mart and countermart, surprisals, taking at sea, arrests, restraints and detainments of all kings, princes or people, &c., and all other perils, losses and misfortunes,” &c.
    The complaint contained the following averment: “And the said plaintiffs further state that the said propeller, at. the date' of the said .policy, was in safety, and was in every respect light, staunch, strong, well equipped and provided, and in a perfectly seaworthy condition; and that thereafter and heretofore, and on or about the 22d day of June, 1853, while she was proceeding on a voyage to Chicago, on Lake Michigan, the boilers thereof burst, and the said body, tackle, apparel and other furniture of the said propeller, and the boilers, were blown to pieces and sank and became destroyed by such bursting, cmd thereby a/nd not otherwise then a/nd there became a/nd was wholly and totall/y lost to them, the said plarnitiffs; and thereafter and heretofore the said propeller was abandoned by the owners thereof to the said defendant.” The complaint contained the other usual aver' ments.
    The ground of demurrer was that the complaint,, did not state facts sufficient to constitute a cause of action; for the reason that by the terms of the policy, as set forth, the defendant was not to be liable for any injuries or loss occasioned by the bursting of the boilers of the said propeller, &c.

      George B. Hibbard, for the appellants.

      E. C. Sprague, for the respondent.
   Denio, Ch. J.

The complaint was apparently drawn with a view to present the question of construction arising upon the exception contained in the policy. As the solution of that question depends upon the particular language used, we must assume that the averments contain verbally accurate extracts from the contract. The position of the defendant", upon that language, is that the insurers were not to be liable for the consequences to the vessel and its equipment and furniture, resulting from the bursting of the boilers; while the plaintiffs cláim that the exemption from liability is limited to damage to the boiler alone. Upon. questions of this kind the first resort is to the terms ■ used. It is not said in express language that the defendant is not to be liable for any loss occasioned by the explosion of the boiler, but the expression is more brief and perhaps more indefinite. The company “is-not to be liable—for bursting of the boilers.” It is unquestionably loss or damage of some kind and to some subject-, to which the liability is declared not to extend. The kind of damage was that which would naturally or probably result from such an accident. Such an occurrence would necessarily injure and would probably destroy the boiler itself, but it would also be likely to injure the vessel, and -might, as it did in this case, sink and destroy it. The meaning of the sentence depends much on the force of the word for. The defendant was not to be hable for bursting the boilers. In my opinion it is to be understood in the sense of “ on account of,” “ by reason of,” or “ because of.!’ The word is familiarly used in such a sense; and these are among its established definitions. A man is said to be hable to pay damages for the commission of a trespass, or to be imprisoned for stealing another’s property. What the defendant was not to be hable for by this clause were the consequences of the bursting of the boilers. The plaintiffs took the risk of these consequences upon themselves. The nature and extent of the consequences which were embraced in the scope of the provision, is another question. They were something which the insurers would be liable for, or which it was supposed they would be hable for, but for the special provision. The breaking to pieces and sinking of a vessel which was seaworthy at the commencement of the voyage, by a peril insured against, is a thing for which an insurer is of course liable, and the explosión of' the boilers of a steam vessel, without the fault of the assured, is, upon the concession of the counsel on both sides, a peril embraced in this policy. The plaintiffs’ claim to recover is based wholly upon that position. It has been so held in several cases in this country, and I am not aware-that it has ever been contra-dieted. (9 Mo., 411; 11 Ohio, 147; The Western Ins. Co. v. Coffen,, 32 Penn., 357.)

If, therefore, the defendant contracted to be exempt from liability for damages consequent upon the bursting of the boilers, the reasonable interpretation to be given to the contract is, that it contemplated the injury to the ship as well as to the boilers themselves. , That, we know, was a result quite likely to follow from such an accident, and it was one for which the insurers would be liable under the general terms of the policy. The intention of the clause under consideration, seems to have been to qualify the effect of the general provisions of the contract.

The connection in which this particular exception is found strengthens the defendant’s position. The whole clause is, that the insurers are “ not .to be liable for any derangement, or breakage of the machinery, or bursting of the boilers, unless occasioned by stranding.” How, the derangement of the machinery might be very fatal to the vessel, as it might leave her exposed to the winds and waves, without aid from any propelling power. Every one knows that in the absence of means to keep a ship on its course, it is - liable to broach to and founder, if there be at the time a gale of wind. The absolute injury to the machinery itself, from a derangement of its parts, would be greater or less, according to the circumstances; but of itself, and unconnected with its consequences to the ship, it would not ordinarily be of sufficient moment to form the subject of a distinct exception in a contract of insurance. The breaking of a piston-rod of a steam vessel having a single engine, during a storm, where there was no duplicate on board, would, under probable circumstances, be fatal to the ship; but, upon the plaintiffs’ construction, the insurers would be responsible for the loss except the expense of replacing the broken rod, though they' had contracted that they would not be liable for damages on. account of the breaking of machinery.

The whole sentence is qualified by the words, unless occasioned by stranding.” Stranding is understood to be the striking of a vessel upon a rock, .bank, reef or the like. A probable concomitant of such an accident is the derangement or breaking of the machinery, and bursting of the boilers. When such an occurrence happens, it is not attributable so much to the inherent nature of such arrangements as steam engines as to the perils of navigation which are common to all methods of propulsion on water. If we suppose the intention of 'the parties to this policy to have been to exempt the insurers from that class of hazards which are peculiar to the use of steam as a propelling power, and to subject them to the other ordinary perils, the office of the words respecting stranding will be quite apparent. „ As stranding was a thing which might happen to any vessel, whatever its moving force was, it would -be reasonable for the insurers to agree to indemnify the owner for all the consequences of such an event, to any pgrtion of the vessel or her machinery or furniture, and it would not conflict with the idea that the assured took upon themselves the class of risks which are peculiarly connected with the generation and use of steam as a propelling agent. The sentence under consideration proceeds, “but if the said propeller should take fire, or any part of the machinery or boilers be damaged thereby, the said defendant is to be liable therefor.” This may be considered either as a qualification of the previous language, exempting the insurers from the consequences of the bursting of the boilers; or, a provision introduced for greater caution to preclude a construction by which no indemnity was to be allowed the owner for injuries to the boilers or machinery in case of a fire originating otherwise than by the explosion of the boilers, but commencing in parts of the vessel exterior to them. On the first supposition, the effect of the language would be that, as to one of the possible consequences of an explosion, namely, damage by fire to the boilers or machinery, the exemption from liability should not apply. But as I can see no reasonable motive for such a qualifying provision, and as it would be hostile to what I conceive to be the policy upon which the exception was introduced, I reject it. I think the provision points to the case of a fire occurring in the vessel, exterior to the boilers, and not occasioned by their bursting, and that it was intended to exclude any inference that the former language would operate to deny to the owners an indemnity for injury to the boilers or machinery from such a cause. Considered in this light, it would appear to have been introduced almost from excessive caution. Still, it is conceivable that the parties may have had in their minds the case of a fire preceding and not originating in an explosion, but ultimately causing a bursting of the boilers and their destruction from such bursting. Thus understood, the provision would have a reasonable operation and would not militate against the interpretation I have given to the prior language.

The plaintiffs’ "construction, as I have remarked, would confine the exemption from liability on account of the bursting of boilers to the injury to the boilers themselves; and so with the derangement or breaking of' machinery. Had this been the intention, it would have been more natural to declare that the boilers and machinery were not covered by the policy except as related to injuries not connected with their operation. But I am more impressed with the idea that the intention of the contract was to except from the indemnity contracted for, the injuries which should result from the peculiarly hazardous method of propelling the vessel. The use of steam introduces a class of risks which were unknown when the terms of the common policy of insurance was settled. It is not the question whether steam vessels are not, upon the whole, safer than those which are moved by the wind and regulated by sails. However that may be, the former are exposed to destruction from causes wholly unknown to the ancient mode of navigation, though they may be more secure against another class of hazards. It is of course-competent for parties to make a contract of insurance which shall exclude the peculiar hazards which beset steam vessels from the indemnity provided for. They may also so frame their contract as only to exempt from the promised indemnity the instruments provided for generating and applying the steam. My conclusion is, that the contract we are dealing with is of the former character, and that it embraces in the scope of the exception the consequences arising from accidents to which this method of navigation is exposed, as well as the instrument used in carrying it on.

The cases in this court and in the Superior Court of Hew York upon fire policies, though not precisely in point, sustain, to some extent, the conclusion to which I have arrived. (St. John v. The Am. Mut. Fire and Marine Co., 2 Kern., 516; Haywood v. The Sea and Land Fire and Life Ins. Co., 7 Bosw., 385.) The general question in both, these cases was, whether an exception excluding liability from explosions of steam boilers embraced the effects of fires kindled by means of the explosion, and it was held that it did. The fires were not the immediate "effect of the explosion, nor were the necessary and'inevitable result of such accident, but as they were natural and probable consequences, they were held to be embraced within the exception. In both cases, the language-was more precise than in the case under consideration, for the words in the first case were, that the insurers should not be liable for any loss occasioned by the explosion of a steam boiler, and in the case in the Superior Court it was, that they would not be liable for any loss or damage which might happen by any explosion. If I am right in supposing that the word for, in the present policy, has the force which I have attached to it, the cases cited are substantially parallel.

Much reliance' is placed by the plaintiffs’ counsel upon the case of The Western Ins. Co. v. Cropper, reported in 32 Penn. (8 Casey, 351), where, upon an exception in a policy in many respects like the one under consideration, and the vessel was lost by a breakage of the steam apparatus, it was held that the insurers were liable for a total loss. The accident was the bursting of-the feed cock and the breaking of a bolt of the stuffing box, which caused the steamer to leak and obliged the master to run her ashore, when she was wrecked and became a total loss. The primary words of exception were substantially identical with those in the present case, but certain language was added which is not in the policy before us. As the court read it—correcting a supposed error in penning it—it was as follows : “or from the effects of fire from any cause connected with the operation of, or the repairs of, an engine or boiler, unless, the damage be occasioned, or the repairs be rendered necessary, by thte stranding or sinking of the vessel after her engines and boilers shall have been put in successful operation.” A clause followed this, providing that the insurers should not be liable for fuel, wages, provisions or delay “consequent upon repairs to the engine or boilers of any kind, or repairs to the hull, if such repairs are rendered necessary by breakage or derangement of the machinery or bursting of the boiler.” The argument of the opinion is, in substance, that inasmuch as the contract, independently of the principal clause, expressly provides against liability from fire and from delay 'Occasioned by the breaking or bursting of the steam apparatus, the principal excepting clause could not have looked to the general consequences of such breaking or bursting, for otherwise it would have been unnecessary to enumerate the losses by fire and delay arising from the bursting or breakage, as those would have been already embraced in the provision that the insurers “ should not be liable for any breakage or derangement of the engine or bursting of the boiler or any of the parts thereof,” which was the language of the principal exception. In other words, that having provided in express terms for certain consequential losses, the general language was not to be construed as embracing any other consequential damage. Hence it was held, that where fire or delay had not resulted from the bursting dr breaking, the indemnity was to be limited to a compensation for restoring the broken and deranged machin.ery, though the entire vessel was lost by the breakage. ’ It is enough to say of this case that it was adjudged wholly upon the force of language not contained in the contract before us, and that no opinion is there given upon the interpretation of the exception if it had not" been accompanied by the additional provisions. There is 'a provision in the present policy exempting the insurers from damages for delay consequent upon repairs of any kind, but this does not appear to me to bear-upon the defendant’s liability under the principal exception.

My conclusion is, that the judgment of the Superior Court of Buffalo was right, and that it ought to be affirmed.

Ingraham, J.

The plaintiffs’ complaint against the defendants avers that a propeller, belonging to them, on Lake Michigan, was proceeding on her voyage when the boiler burst, and the body, tackle, apparel and furniture of the propeller and the boilers were blown to pieces and sunk and destroyed. The propeller was insured by the defendants under the usual policy, with a clause therein providing that the defendants were not to be liable for any derangement or breakage of the machinery, or bursting of the boilers, unless occasioned by stranding, but if the propeller took fire or the machinery or boilers should be damaged thereby, the said defendants were to be liable therefor.

The defendants demurred to the complaint, and the question which arose thereon depends upon the construction of the exception above' stated as to the bursting of the boiler. •It must be conceded that the damage to the vessel was occasioned by the bursting of the boiler, and that there is nothing to show that any other cause than a defective boiler led to the explosion. Mo cause whatever for the explosion is stated in the complaint, nor are any circumstances alleged to take the case out of the exception.

The ordinary use of language and the understanding of the words used, looking at them in the common ‘sense mode of interpretation, would both lead to the conclusion that the defendants intended by this provision in the policy to avoid the risk which might arise from the bursting of the boilers or the derangement or breakage of the machinery. They were not to be liable for either, except it was occasioned by stranding. In such a case- the loss was assumed by the defendants for the very obvious- reason that the bursting was not the cause of the loss, but a consequence of what would probably have caused it, whether the boiler burst or not.

Whether or not the vessel was seaworthy, has nothing to do with this- exception. It does not assume the risk if seaworthy, or seek to avoid it if otherwise; but the exception is general and applies equally, whether the vessel was sound or not.

The plaintiffs contend, that the defendants are liable for the loss in all respects except for the damage to the boiler itself.

It is not necessary to inquire, in this case, whether the defendants would have been liable for the losá if, after the bursting of the boiler, the vessel had attempted to get in port by tbe use of sails, or otherwise, and had been then lost. The loss then would have been consequential and not direct. In this case the bursting of the boiler is alleged to be the direct and immediate cause of the loss; the averment ■being that by such bursting the body, &c., of the propeller was blown to pieces and sunk. The cases cited by the appellants as favoring the liability of the defendants, were all cases in which the loss was not the direct result of the injury attempted to be guarded against by the exception, or where the wording of the exception was such as to reheve the question of any doubt, with the exception of The West-. ern Insurance Go. v. Oropper (32 Penn., 851). Even in this case the bursting of the boiler was not the immediate and direct cause of the loss. The court say they do not consider the exception such “as to exempt from the obligation to pay for a total loss, though the loss could be traced lack to the breakage of the machinery as its first cause.” Erom the statement of the case it is apparent the vessel was not destroyed by the bursting, but such destruction followed from causes originating perhaps in the destruction of the boiler, but not by the bursting itself. I cannot, however, adopt the conclusion that that case is controlling as applied •to the present one; on the contrary it seems, to me to be the very liability which the company intended to guard against, by excepting a liability for the bursting of the boiler.

I see no difficulty in construing the subsequent part of this clause in regard to fire so as not to conflict with the interpretation given to the exception by the court below. That provided for liability if the propeller should take fire, and that fire should cause the destruction of the machinery or boiler, they would bear the loss. The very statement of such a liability is a clear expression of intent not to bear the loss where it arises in the first instance from the bursting of the boiler.

It seems to me to be clear that the exception in the policy was intended to guard against the bursting of the boiler, and all injury directly produced by such explosion.

The judgment of the court below should be affirmed.

All the judges concurring,

Judgment affirmed.


author: Davis, J.

text:
    George L. Brown, Executor, &c., of Charles Burrall, deceased, Respondent, v. George A. Leavitt and others, Appellants.
    The holder of a promissory note transferred in payment of a note already due, is a holder for value.
    Appeal from the Superior Court of the city of Hew York. The action was brought upon a promissory note made by the defendants’ firm, for $603.10, dated March 27, 1861, payable nine months after date to the order of J. F. Zebley & Co. The defense set up was fraud on the part of Zebley & Co., in obtaining the note, and a total failure of consideration therefor. On the trial the defendants showed by John F. Zebley, that the plaintiff held a note of $1,500, made by Zebley & Co., which matured in February, 1862; that for the purpose of settling that note, J. F. Zebley & Co. and plaintiff’s testator met at the office of Seymour & Co. in the month of March, 1862; that Zebley & Co. then delivered the note in suit, with several other notes, all of which were indorsed by Seymour & Co., to the plaintiff’s testator, and paid the balance of the fifteen hundred dollar note in.cash; and that the testator took the note in suit with the other notes, with the balance in cash, in payment of the note he held, and surrendered the old note, and delivered the same to Zebley &
      Co. The counsel for the defendants then offered to show the transaction between defendants and Zebley & Co. to establish the alleged defense. This was objected to, and the court held that, as the evidence then stood, the plaintiff’s testator was a bona fide holder of the note for value, and that he became so before maturity; an<j that the proposed evidence was improper, irrelevant and immaterial, unless the defendants’ counsel proposed by further evidence to explain or modify the testimony of Zebley, and to show that plaintiff was not a tona fide holder of the note for value, which the defendants’ counsel said he did not intend to do. The court thereupon excluded the proposed evidence, and directed a verdict for the plaintiff, to which defendants’ counsel duly excepted. On appeal, the Superior Court, at General Term, affirmed the judgment.

      Marsh, Coe & Wallis, for the appellant.

      Burrill, Davison & Burrill, for the respondents.
   Davis, J.

The note in suit was indorsed and delivered by Zebley & Co. to plaintiff’s testator, before it fell due, in payment, so far as it went, of a larger note than held by the testator. It was received with other notes, and a balance in cash, as such payment of the larger note, delivered up to Zebley & Co.

In this State it is settled by abundant authority that this transaction constituted the plaintiff’s testator a holder, for value, of the note in question. (Bank of Salina v. Babcock, 21 Wend., 499; Bank of St. Albans v. Gilleland, 23 id., 311; Bank of Sandusky v. Scoville, 24 id., 115; White v. Springfield Bank, 3 Sandf. S. C., 222; Young v. Lee, 18 Barb., 188; S. C. affirmed, 2 Kern., 534; Stetthein, v. Meyer, 33 Barb., 215; Mohawk Bank v. Corey, 1 Hill, 515; Meads v. Bank of Albany, 25 N. Y., 149; Stalker v. McDonald, 6 Hill, 93.)

A further discussion of the question might lead to a suspicion that the law was in doubt on the point,

The judgment should be affirmed.

AH the judges concurring, judgment affirmed.


author: Mullin, J.

text:
    Ziba A. Leland, Appellant, v. Charles Cameron et al., Respondents.
    Where the case contains no finding of facts, the appellant is not entitled to he heard on his appeal.
    Where it has been shown that search has been made in the clerk’s office for the execution sought to be proved, and that it could not be found; that the person then sheriff is dead; that his house had been burned; and that the execution could not be found on inquiry for it of the members of his family; it is sufficient proof of its loss to admit of secondary evidence of its existence and contents.
    In such case, the entry by the attorney in his register of the issuing of such execution to the sheriff—the attorney himself being dead—is competent, evidence of such fact.
    The contents of the execution in such case may be inferred from the facts, that the law prescribes its form; the attorney issuing it was conversant with such instruments, and the sheriff to whom it was directed knew what it must contain to authorize him to sell the property.
    In view of such facts, and after a lapse of thirty years, the court may assume that the execution was in due form, containing all such directions as the statute required it should contain.
    In the absence of proof to the contrary, it is presumed that the officer, in selling property under an execution, complied with all the requirements of the statute.
    Appeal from a judgment of the Supréme Court affirming a judgment of the Special Term, dismissing the plaintiff’s complaint with costs. And also from an order of the same •court affirming an order of the Special Term, denying a motion to strike out so much of the judgment as awarded costs to the plaintiff.
    The complainant alleged that on the 1st of January, 1818, William Helm, of Bath, Steuben county, since deceased,was the owner in fee of the premises described therein, lying and being in said county. That on the 30th ¡November, 1825, said Helm appointed the plaintiff and one ¡Daniel G-. Skinner his agents and attorneys, to take possession of and sell his real and personal estate, and to give deeds thereof, and to pay said attorneys for advances then and thereafter to be made, to and for the benefit of said Helm, and by the same instruments conveyed one-half of all his real estate to said attorneys, and at the same time said Helm made his will, whereby he appointed them to be his executors and his trustees, with the same powers contained in the deed. That said attorneys made large advances to said Helm, which became chargeable to his real estate. Said Helm died in March, 1827, leaving said will, and for a money consideration said Skinner quit-claimed and transferred to the plaintiff all his .title under the said deed, powers and will, and all his claim on the estate of Helm. That Dugald Cameron, in February, 1818, pretended to have purchased the premises described in the complaint at sheriff’s sale, or some part of it, by virtue of a judgment, which he claimed to be in form; and on the 2d of March, 1818, made and signed a declaration of trust, that he held said lands in trust for said Helm.
    Dugald Cameron died in 1828, having by will made Charles Cameron his executor, with power to sell his lands, and devised the same to said Charles. That Charles claims to be owner as executor and trustee, and Davenport' claims that he has some right or interest in said lands. The piece of land secondly described in said complaint has been since 1818 in possession of Dugald Cameron, and in that of Charles and Davenport, who have received the rents and profits, which have been $500 annually since 1818. Judgment is demanded that the said executor and Davenport convey said lands to the plaintiff, and surrender possession and account for the ' rents and profits to him.
    The answer denies the complaint, and, by way of defense, alleges that Dugald Cameron, in December, 1816, recovered a' judgment in the Court of Common Pleas, of Steuben county, against said Helm for $2,600 debt and $10 costs, issued execution thereon to the sheriff of Steuben, for $1,311.95. That on said execution the sheriff sold certain of real estate described, and the said Dugald became the purchaser at such sale of the piece first described in the complaint; but whether of the second piece, they do not know. That at time of said sale the said Helm did not own the piece secondly described in complaint, but held the same by contract from one Hornby. That said Helm applied to said Dugald for his consent to sell and dispose of the same to the use of said Helm, and he did consent, and Helm, in June, 1819, transferred this contract for 150 acres to one McBurney for $500, which was paid. McBurney afterwards assigned the same to one John McGee, who obtained a deed of the said land. That Helm had the benefit of the $500 paid by McBurney. In July, 1831, said Charles Cameron conveyed the piece of land firstly described in said complaint to said Davenport by deed, with covenant of warranty; and that neither said Cameron or said Davenport had any knowledge that said plaintiff or Helm or any other person, had any interest therein.
    For a further defense, the defendants plead the ten years’ statute of limitations.
    The plaintiff replied; denying the recovery of judgment by Dugald Cameron, the sale and purchase by said Dugald, and all other matters affirmatively alleged in said answer.
    On the trial, the plaintiff proved the power of attorney from Helm to the plaintiff and Skinner; also the papers, giving to the same persons a lien on his property for such advances as they might make, and conveying to them one-half of his property, except certain parts reserved to himself and his children; the agreement, by which Skinner transferred his interest in the property to Leland, and the will of said Helm, being the same instruments set out in the complaint.
    The plaintiff farther proved, that Davenport was in possession of a part of the premises described in the complaint, and that Helm died in March, 1827.
    The plaintiff having rested, the defendants moved for a nonsuit on the grounds,
    1st. That plaintiff had not shown any title to the premises described in the complaint.
    2d. That he had failed to prove any of the facts alleged in his complaint.
    The motion was denied, and defendants’ counsel excepted.
    The defendants then proved the recovery of judgment in favor of Dugald Cameron against Helm, as charged in the complaint—the sale and conveyance, by the sheriff to him, of the premises firstly described in said complaint. This evidence was objected to by the defendants, on the ground that the issuing of an execution was not proved. It was then proved that the search had been made in the county clerk’s office, and no such execution could be found; that the person who made the sale, as sheriff, had removed from the State to the West; that since the sale, his house was burned and he himself was dead; and that inquiry for the execution had been made of the family, but none could be found. It was also shown, under the plaintiff’s objection as to the competency of the evidence, that the attorney who entered up the judgment was dead, and that on his law register, amongst the entries of the proceedings in the case, was, “ Fi. fa. issued December 19th, 1816, to McClure.” The receipt of the execution was recited in the sheriff’s deed. The court overruled the plaintiff’s objection, and admitted the evidence.
    The defendant also proved the allegations in the answer in regard to the contract from Hornby to Helm and the assignments thereof, and a deed of the same premises to McGee, and a deed from Charles, as executor of Dugald, to Davenport, with covenant of warranty, consideration $250.
    The defendant then rested, and the plaintiff put in evidence a letter, dated 24th December, 1816, from Dugald Cameron to Helm, in which said Cameron says, that in order to enable him (Helm) to dispose of his real estate, and particularly of that in the contemplated sales to Pratt, Conger and McClure, he did thereby agree to release from his judgment the lands which those persons contemplate purchasing, and that he would execute any writing, needful in law, to remove any embarrassment created by the judgment, as he felt himself otherwise fully safe.
    The plaintiff then put in another letter from said Dugald to Helm, dated the 2d March, 1818, in which he says that the property he purchased at sheriff’s sale on the 28th February, 1818, he should always be ready to convey to him (Helm) or his order, on payment of the money due him. He said he wished it understood that he (Helm) was at liberty to dispose of the property for his own use and benefit, and should confirm the title of the purchaser, it being, he says, clearly understood that his (Helm’s) interest is to be considered, and not his (Cameron’s).
    The plaintiff put in evidence another letter from said Dugald to Helm, dated 6th July, 1824, in which said Dugald admits owing him (Helm) $25, which he had forgotten. He sent him $10, and promised to pay the balance.
    Evidence was then given by the plaintiff tending to show that Helm was involved; that he had been rich but became poor. He was insolvent in 1826.
    The defendant gave evidence on the same subject, and put in evidence the record of a mortgage from Helm and wife to one Pultney, dated 10th Hay, 1809, for $905.30, on the piece of land first described in the complaint, and the foreclosure of the same' and purchase of the premises by one Conger; and from him they passed to several persons, and finally to Dugald Cameron, in 1821. The mortgage was objected to because the bond was not produced, and the objection was overruled. Also, a warranty deed from Davenport to one Hehoun, of the $500 described in the complaint, in ¡November, 1848.
    The plaintiff’s counsel then insisted:
    1. That the pleadings admitted legal title in Helm up to *30th ¡November, 1825. That his title was not divested by sheriff’s sale, as no fi. fa,, was proved, and because the sale was of several parcels in a lump.
    2. That Cameron held the premises in trust for Helm, and that there was evidence that Cameron had been paid up; that Davenport was not a Iona fide holder. That plaintiff has all the rights of Helm, and is to be deemed owner or cestui que trust.

    3. That plaintiff is entitled to insist upon the rights of a creditor of Helm.
    The court overruled the objection and ordered judgment for the defendants.
    In making up the record, the defendant’s attorney entered a judgment for costs against the plaintiff. The plaintiff’s counsel, when informed of such judgment, moved to set it aside, on the ground that he sued as a trustee, and costs could not be recovered against him as of course, nor without a special order of the court. The court denied the motion, with costs; and the plaintiff then appealed to the General Term, from both the judgment and order, and that court affirmed the same.

      Z. A. Leland, for appellant.

      R. B. Van Valkenburgh, for respondent.
   Mullin, J.

The' case contains no finding of facts, and by repeated decisions of this court the appeal cannot be heard. (16 N. Y., 610, 613, 617; 3 Kern., 344; 20 N. Y.)

If, however, the court should deem it proper to overlook this error in practice, I will briefly assign the reasons which induce me to vote for the affirmance of' the judgment. It must, be assumed, in the absence of any objection on the trial, by the defendant, that Helm had title to the lands in question at the time of the recovery of the judgment against him by Dugald Cameron; and I will further assume that the title was in fee. That judgment is concededly regular, and was therefore a valid lien on all the lands of said Helm. It was proved that the sheriff sold the premises in controversy ; that they were bid in by said Cameron, and conveyed* by the sheriff to him, by deed, dated the 3d of March, 1818, which was duly recorded on the 2d of April of the same year. To the validity of this conveyance two objections are taken: 1st. That it was not proved that an execution was issued in the form required by law; and, 2d. That the premises sold consisted of several lots or tracts, and they were, all sold as one parcel, whereas they should have been sold, separately.

In regard to the first objection, it was shown that search had been made, in the clerk’s office for the execution,, and "none could be found; that the person then sheriff had had-his house burned—removed next, and died, and that on inquiry of the members of the family, it could not be found. This was sufficient evidence of loss to admit secondary evidence of its contents. But it was necessary first to show that an execution was issued to the sheriff. The only evidence on that subject was the entry of the attorney in his register. The attorney was dead, and hence his entries of any fact which may be thus proved might be received in evidence.

The rule of evidence applicable to entries made by deceased persons, is thus stated in 1 C. & H., note 675: that all entries or memoranda made in their course of business or duty by any one who would, at the time, have been a competent witness of the fact which he registers, are competent. In these are included entries of notaries and bank receivers, as to the demand and protest of notes (15 Mass., 383 7 Wend., 160), merchants’ clerks, surveyors and engineers, and commercial agents. (See also 1 Greenl. Ev., §§ 115-17.) That it is the practice of lawyers to keep entries of the proceedings in a cause, is as well known as that merchants keep books in which are entered goods sold on credit. It is as much the duty of the lawyer to keep a record of such proceedings, as of the notary of the time of making demand of payment of a bill or note, or of the time and manner of serving notice of nonpayment.

I entertain no doubt but that the entry of the issuing of execution was properly received, and that, being received, it proved the issuing of an execution to the sheriff at the time mentioned in the entry. In arriving at the contents of the execution it must be borne in mind that its contents were prescribed either by statute or by the practice of the courts, and, with the exception of a description of the judgment, all executions against property were then and still are alike. The person who issued it was a lawyer, conversant with such instruments, and the sheriff to whom it was delivered knew what such process must contain in order to authorize him to sell. In view of these facts, and after a lapse of over thirty years, we must assume that the execution was in due form, containing all such directions as the statute or practice required such process to contain.

As to the alleged irregularity in the sale, it seems to me there is no evidence in the case on which to rest it. It was the duty of the officer to sell in parcels, and the presumption is that he has done it. That presumption is not overcome or affected by the recital in the deed that the whole premises were bid off for a gross sum. The sale may, consistently with the recital, have been in parcels, and we must presume that it was.

I think the sale by the sheriff was valid, and that Dugald Cameron acquired a valid title thereto as against the judgment debtor, Helm.

It was in 1826 that the plaintiff acquired the .title under which he now claims (except so far as the will forms an element of it which became operative in the spring of 1827, on the death of said Helm). At that time the title of Cameron was, as I have shown, perfect as against Helm, and of course there was nothing to pass to the plaintiff and Skinner.

To meet and overcome this difficulty, the plaintiff proved three letters from Dugald Cameron to Helm, one dated after the recovery of the above mentioned judgment and before the sale, and one a few days after the sale, and the other in 1824, some six years after the sale, for the purpose of proving that said Cameron held said lands in trust for said Helm at the time of the conveyance by Helm to plaintiff and Skinner. I fully concur with the learned judge who tried the cause, that these letters are not sufficient evidence to establish a trust. Although no particular form of words is necessary to create a trust, it is necessary that the intent thus to hold should be clearly manifested.

In this case we have a valid judgment, which is conclusive evidence of an indebtedness from Helm to Cameron; that judgment enforced to a sale and a purchase by the creditors, without any evidence of even a negotiation between the parties in regard to the reservation of any interest in the debtor. The letters relied on as evidence of a trust, are the declarations of a kind and generous creditor to his debtor, of his willingness to extend to him every indulgence in his power, that does not destroy his security for his debt. I cannot believe that either Cameron or Helm supposed that a trust was created by these letters, or even intended to be created.

If the plaintiff fails in establishing a trust, he then insists that the letters are evidence that the judgment was in the nature of a mortgage, and that such mortgage has been paid.

The judgment was not taken as security for .a debt, an essential requisite to convert a deed or other instrument or conveyance into a mortgage. (See cases collected in Abbott’s Digest, title Mortgage, § 7, &c.) The debt was merged in the judgment. The deed was taken in pursuance of the sale, not as security for the judgment or any part of it, but in payment to the amount of the bid.

The letters show a willingness to relinquish the title on being paid the amount to which he deemed himself entitled, but they do not show that he either took or held the title by way of security for any subsisting indebtedness.

The letter of the 6th July, 1821, is no evidence that the amount bid at the sheriff’s sale had been paid. It may be evidence that the balance of the judgment not satisfied by that sale has been paid. The -sale and conveyance by the sheriff operated as payment of so much of the judgment as Cameron bid at that sale. That part of the judgment being satisfied, nothing short of evidence of a vacation of the sheriff’s deed and sale could revive that part of the debt.

In no aspect of the case is the plaintiff entitled to recover, and the judgment of the Special Term and of the General Term were right, and must be affirmed.

The action was prosecuted by the plaintiff for his own benefit, and he was liable for costs. To release a plaintiff from such liability, under section 317 of the Code, he should not leave the character in which he acted open to doubt or cavil. The court below had the right to treat him as suing in his own right, and therefore to charge him with costs. The order of the General Term must be affirmed with costs.

All the judges concur in the affirmance of the judgment; Weight, J., on the ground of want of statement of fact. Davies, Ingraham, Hogeboom, and Johnson, JJ., and Denio, Ch. J., affirm on both grounds. Selden, J., did not vote.

Judgment affirmed.


text:
    Ziba Leland, Appellant, v. Charles Cameron, Executor, and William E. Bidwell et al., Respondents.
   Mullin, J.

The only difference between this and the preceding case is, that the premises sought to be recovered by the complaint are described as being on lot 33; the proof shows them to be on lots 33 and 34, and that the defendants show no title to lot 34, hence the plaintiff claims that he is entitled to that part of them lying on lot 34.

The complaint describes the premises as being on lot 33, on the north side of Morris street in the village of Bath, being the point between Morris and Steuben streets, and now occupied by Thomas Whigley. The defendants have, by the deed from the sheriff, title to a lot south part of lot 33 and 39, on the north side of Morris street in the village of Bath, containing together half an acre of land. The answer asserts title to the lot by virtue of this deed. There is nothing in the complaint to show that plaintiff claimed any part of lot 34, but he limits his claim to lot 33, yet his description of the lot unquestionably informs every person acquainted with the premises that a part of 34 is embraced in the boundaries claimed. But I think he should have shown on the trial how much of the Cole lot. was embraced in lot 34, so that a judgment could have been rendered for that part of the premises in his favor.

The ground on which the learned judge put it on the trial, will enable the plaintiff, if he desires to do so, to bring another action for so much of the premises as lies on lot 34. I am in favor of affirming the judgment on that ground, with costs.

Judgment affirmed,