author:
Spencer, J. Livingston, J. Tompkins, J.
      ÍCentj C. J. Thompson, J.

text:
    Garrit Post and James La Rue against John Neafie.
    NEW-YORK,
    May, 1805.
    Debt will lie on a decree of a court of chancery in a sister state if it be simply for the payment of a sum of money by the defendant, without any acts to be done by the plaintiff. And if the decree be for the patment of one gross sum to several persons, though their proportions be previously specified, the action be joint, and is up the most appropriate form ut sem.

      THIS Was an action of debt upon a decree pronounced by the court of chancery for the state of New-Jersey, where, by a law passed on the 3th of June 1799, it is thus enacted. “ That when “ any cause shall be finally determined in the court of chancery, " the clerk of the court shall enter together, in order, the bill, an-“swer, pleadings, reports, decretal orders and decree in such " cause, in a book to be kept for that purpose, which shall be " signed by the chancellor, as of the day on which such decree
      "was pronounced, but such decree shall not contain any recital “of the bill. &c.”
    “ That the decree of the court of chancery shall, from the time “ of its being signed, have the force, operation and effect of a “ judgment at law in the supreme court of this state, from the “ time of the actual entry of such judgment.” By a subsequent clause when a defendant shall not comply with a decree made, the court may comp el performance by sequestration, fieri facias, or capias ad satisfaciendum. On the trial, which was before Livingston, J. at the New-York sittings in July 1783, these appeared to be the circumstances of the case.
    The defendant having an estate under mortgage to the commissioners of the loan office, sold it to Post, and covenanted to pay off the incumbrance. This not being done, the premises were put up to sale at public auction by the commissioners from whom La Rue purchased it, received a conveyance, and brought an ejectment against Post. He, being thus sued, instituted an action of covenant against Neafie, for not exonerating the estate; upon which Neafie filed his bill, alleging a confederacy to oppress and defraud him. When the cause was set down for hearing, the parties came to a compromise, by which they agreed that Neafie should, within a fortnight, repay La Rue the amount of his purchase money with interest; pay all the taxed costs in chancery, and in the two suits between himself and Post, and between Post and La Rue, and also all the fees paid, or engaged to be paid by Post and La Hue to their solicitors and counsel; that Necfie’s wife should execute and acknowledge the conveyance to Post, and La Rue and his wife, execute to him, a release and quit claim, in consequence of which the two suits at law should be discontinued and the bill in chancery dismissed. Neafie however, not complying with these terms, an interlocutory order was made to the same effect, referring it to a Master to state the several sums due, and he, having ascertained their respective amounts, gave in his report specifying the quantum due to each of the defendants in his own right, and the amount of the whole together. Upon this report the chancellor founded his decree, thereby ordering the matters and things, contained in the order and report, to be performed “ according to the tenor and true meaning thereof,” that Neafie should pay the plaintiffs the sum for which they now proceeded. To establish their right to recover, they gave in evidence, an exemplification of the decree and proceedings duly authenticated, and offered to prove the seal and signatures, but they did not shew that this decree had been entered in the book prescribed by the 45th section of the act of June 1779, any further than it appeared from the cerfiticates authenticating the exemplification, nor did they adduce any testimony to evince the effect of a judgment in the supreme court of New-Jerscy. Upon this the defendant moved for a nonsuit on the following grounds. 1st, That debt will not lie on a decree of a court of equity. 2d, That if in any-case it can be maintained, it must be on a decree for payment of a specific sum of money alone, without any act* to be done by the other side. 3d, That if such an action can be supported, where any acts are to be performed by the other side, all such acts must, for the ends of justice, be considered as conditions precedent. 4th, That the present plaintiffs, from their own shewing could not join, the sum,' for which the action was brought, being an aggregate of several parts due in different rights-The judge having over-ruled these objections charged for the plaintiffs, in favor of whom a- verdict was rendered, to set aside which, the defendant applied on the same reasons as those urged for a nonsuit.

      Hofikins for the defendant.
    On the first point it may perhaps be sufficient to remark, that no example is to be found in the history of the law, of any such action being maintained. I assume tt therefore, as a position, that none has ever been brought. If so, then I shall think the remark of Lord Coke may well be applied, “ that if an act never has been done, it is a reason why it never "should be done.” This, it is true, is a proposition susceptible of some qualification. For, if a new injury or case should arise, some special action should never be wanting. The dictum therefore must be applied only to cases which have happened. Now then is this a new case ? If not, it would long since have been resorted to as a means to obviate the objection against the court of chancery, that it was so feeble it could not enforce its own decrees. The want then of an example is enough to shew it could not be done ; for it has always been convenient apd desirable that such a procedure should have been adopted. But that it could not, seems to have been strongly intimated by this court in the case of Phelps v. Bryant, where, in an action on a decree made in Connecticut, the bench asked the counsel if a bill in chancery was not the proper remedy ? And though the decision turned on
      tion, is certainly in favor of our position. As however there is no express determination on the matter, we may be allowed to investigate it on principle, and see how far such an action can be warranted. Against it, there seems a reason that is incontrovertible, arising from the nature of the court and system of our law. The rule of procedure in the latter is secundum legem et consuetudinem terra; that of the former secundum aquum et bonum. The principles, therefore, on which a decree may be founded, are not such as would authorize a judgment, and consequently a decree cannot raise any presumption of a legal demand. Nay, the very reason for going into equity is, that the party is remediless at law. The decree does not alter the nature of the claim. It still remains a mere equity, and a mere equity is not a ground of action. Litt. Sec. 332. 2 Wils. 86. It only shews there was an original equity, authorizing a recurrence to chancery, in which court the decree ought to be enforced. But, allowing the suit to be maintainable, it ought to be only for payment of a specific sum without any acts to be done by the plaintiff. Otherwise, where a sum is ordered to be paid to one party, and he decreed to do certain things, he may resort to a court of common law for the money, produce his decree, without ever shewing performance, and ensure a recovery. If however the court should think such a suit as the present may be brought, though the decree contain acts to be done by the plaintiff, then it is presumed such acts ought, in the particular case, to be deemed conditions precedent, though strictly and technically speaking they may be independent. This is necessary, because the court cannot annex any conditions to the decree. For the equitable considerations on which it was founded, cannot be exercised by a court of law. The case affords no evidence that the plaintiffs had performed the acts by them to be done.
    Livixgston J. I tried the cause, and refused to nonsuit the plaintiffs because there was a decree ordering only the payment of a sum of money.

      Hopkins. I shall shew that the decree notices other papers and proceedings, ordering various acts. The interlocutory order and report contain reciprocal acts to be done, and the decree refers to them. The manner in which it is drawn up, omitting those things, does not make them the less a part of the decree, and in enforcing it they ought to be regarded. They should then have been averred. The mere averrment that the money is due and owing, is not sufficient. Besides, the decree, as it k called, is not a final one. It does not appear it was entered in the book required by law. It leaves the matter again to be litigated. A cross bill must be filed to get at the defendant’s rights. Therefore, allowing an action to be maintainable on a decree, it cannot be so on this, which is not final. This will be more evident if we consider there are acts prescribed to be done by the defendant. You cannot split the decree and sue for a part; go for the money, and not for the acts. By this mode we may be sued for the debt at law, and called on for performance in chancery. This would be multiplying suits, in contradiction to all rule. Another argument against the plaintiffs is, that the money is due in different rights; a portion to Post, and a portion to La Hue.

      D. B. Ogden, contra.
    It is a universal principle that debt can be maintained on any judgment of a court of record. Therefore I shall establish that a court of chancery is such a court. Doct. & Stud. 19, in enumerating the courts of record, mentions chancery as one. So 3 Black. Comm. 24, defines a court of record to be “ a court where the judicial acts and proceedings, are “ enrolled in parchment for a perpetual memorial and testimony.’' If from principle it can be evinced that this action will lie, it is not necessary to shew a precedent. But even the test required is not wanting. In 7 Went. Plead. 95, a declaration on a decree in chancery will be found.
    It is declared, 1 Har. Ch. Prac. 636 that a decree is of the same force and effect as a judgment. So 1 Vez. 214. 2 Salk. 507 . Allowing the court of chancery in England not to be a court of record, that of New-Jersey is, by the express words of the statute referred to in the case. But whether it.be so or not, is immaterial to the question. It is settled that judgments in other states are no more than foreign judgments. By the common law no court out of England is a court of record. For in actions on judgments in a court of record the plaintiff must declare prout patet per re-cordum; the trial is by inspection, and the record conclusive. But in an action founded on a judgment of a foreign court, the declaration need not be in that form, the cause is tried as other issues, and the judgment only prima facie evidence of the debt. The difference between actions on domestic, and those on foreign judgments, is still more evident, when we consider that on the first, debt alone can be maintained; on the latter, assumpsit will lie. Then as the presentís a foreign judgment, on which indebitatus assumpsit be brought, and as wherever that action can be supported,debt may be resorted to, this suit is properly instituted, not on the judgment co nomine, but on the debt created by that judgment. For the law implies a promise by every man, to satisfy whatever the law of the land orders him to pay. Still more so when the party against whom it is given, is the very person at whose suit it is pronounced. Whether the decree be final or not is a question for the court in ⅜® Jersey. This, t,he Chancellor of that state has determined by affording his signature in conformity to the act referred to in the case. The point then is settled by a court of competent and exclusive jurisdiction, therefore not examinable here. By this the sum due is joint. It is said, and truly said by the defendant, that the suit must be on the final decree. By this it is made a gross debt, of which the plaintiffs are tenants in common. The interlocutory order merely settles the several interests of the joint proprietors. If the defendant has a right to demand certain acts from the plaintiff, he has his remedy for non-compliance. Therefore, as the suit is on the debt arising from an implied promise, of which the judgment is only evidence 4 as by the decree a joint demand is created, and the defendant may have redress at law for non-performance on our side, the action is well brought.

      Hopkins in reply.
    Though it be a settled rule that debt will lie on the judgment of a court of record, the position is true only with relation to such courts as were so, when the principle was adopted. We must then consider what was the nature of those •courts, and the proceedings in them. If any should now be erected into courts of record, which do not correspond with those previous to the rulé, the principle will not apply. This brings me bock to what I set out with, that a mere equity, the subject of a decree, is not a ground of action at law. The quotation from Bar. Ch. Prac. means no more, than that in settling in-cumbrances on property, chancery will consider a decree, as giving a lien equal to that -of a judgment at law. Nor does the precedent cited make against my position. The English chancery has two courts. That of equity and the petty bag. The latter proceeds according to common law, and the pleadings in Wentworth might have been on a decree rendered there. The final decree, as it is termed, cannot make that a joint interest, which at law is separate.

       Sect. 45.

       Sect. 46.

         Preston v. Christmas. In which it was decided, that as an equity of redemption was a legal non-entity, it could not be pleaded by way of accord and satisfaction in debt on a bond. But quere how this case will stand with the decision in Waters and others v. Stewart, 1 Caines' Ca. in Err. 47.

       428 of the 8th edition by Parker.

       As to personal estate.

        Martin v. Martin.

        Mason v. Williams.

       See Hitchcock & Fitch v. Aicken, 1 vol. 460.

   Spencer, J.

The counsel for the defendant hasargued, 1st. That ibis was not a final decree, but a mere interlocutory order in its na-j.ure> tjle performance of which might be compelled by process of contempt there, but which this court cannot perceive to be a judg-mert ⅛ the cause. 2d. That the agreement, on which the order was made, was out of the ordinary course of the powers of solicitors, and nb authority appearing for making it; as the defendant denied that it was made by his authority or permission. 3d. That it now appears by the documents produced, that the sums declared for, by the plaintiffs, if due at all, are not due to them jointly, but that a part is decreed to one of the plaintiffs, and a part to the other separately, and for causes and considerations which havemo connexion with each other, and for which therefore, they cannot join. 4th. That if, in any case, this court could sustain an action upon a decree of a court of equity, it could only be on a decree for a specific sum of money merely, and not upon a decree enjoining mutual and specific performances like the present; or if an action were to be sustained on a decree ordering mutual performances like the present, then, to effect the ends of justice, the court must consider all things which the plaintiffs are to perform, as conditions precedent, and of course, that the plaintiffs must shew the performance of them on the trial. 5th. That no action at common law will at all lie to enforce a decree of a court of equity.

The first objection is unfounded in fact. The clerk of the court of chancery has certified the decree as signed by the chancellor, and remaining of íecord in the office of the clerk. It purports to be a final determination of the cause, and we are to intend that it has been duly entered agreeably to the regulations of the act.

As to the second objection, it merits little consideration. Solicitors of the court of chancery, as well as attornies in courts of law, are not only responsible to their clients for betraying their trusts, but they are amenable to their respective courts in a sumary way If this had been an action depending in a court Of common law in Jersey, ahd the attorney had confessed a sum of money due to the adverse party it could never become .a matter of enquiry in a suit on the judgment, whether the attorney had acted by authority. If, in this case, the defendants solicitor was unauthorized to enter into the agreement on which the decree was ultimately founded, it was examinable only ⅛ th® court having original jurisdiction. It is to be intended that the solicitor acted by the direction of his client, and for bis benefit*

With respect to the third and fourth exceptions, it does appear, by an interlocutory order in the cause, that the present defendant was decreed to pay several sums of money to La Rue solely, and other sums of money, for costs, to Rost and La Rue ; but the final decree, which is the basis of this action, adjudges and decrees all the monies to be paid by the present defendant to the present plaintiffs, without any act to be done on their part; and thus, it turns out to be a decree for a specific sum of money, independent of any condition or precedent act to be done by the present plaintiffs. It follows, that there were no acts to be averred or proved by the plaintiffs, to entitle them to callón the defendant to perform this decree.

The last objection, that no action at common law, will at all fie to enforce a decree of a court of equity, remains to be considered.

This point has never been judicially decided; or if it has, neither the counsel nor the court have been able to find such decision. The silence of our books on the subject, is by no means conclusive that an action at common law is not sustainable on a decree for the payment of a specific sum of money, as the present is. Principles established in analogous cases must, therefore, be resorted to, to test the question. It has been said that a court of chancery is not a court of record. This is undoubtedly correct, technically speaking. But, whether it be, or be not a court of record, by no means decides the question, that a suit may hot be founded on its final decree. In Walker v. Witter, Doug. 6 Lord Mansfield, says “ The difficulty in the case had arisen from “ not fixing accurately what a court of record is, in the eye of the “ law ; that description is confined properly, to certain courts in “ England, and their judgments cannot be controverted ; foreign “ courts, and courts in England, not of record, have not that pri- “ vilege.” Yet, under that limitation, actions can be brought on the judgments of courts, not of record by the municipal laws of the country in which the action is instituted. The case cited establishes that where indebitatus assumfisit can be maintained, debt will lie 5 and that assumfisit as well as debt can be maintained on a foreign judgment; and I agree with Sir William JBlackstones that it is implied by the fundamental constitution of government, that every person is bound, and hath virtually agreed to pay, such particular sums of money as are charged on him by the sentence, ur assessed by the interpretation of the law. Whatever therefore the laws order anf one to pay, that becomes instantly a debt, which he hath before hand contracted to discharge. 3 Black. Comm. 160. Upon the same principle an action of debt can be maintained for a forfeiture imposed by bye-laws, and the ordinances of a corporation. The same reason applies to suits on penal statutes. In 7 Wentworth, 95, is a precedent of a declaration in debt in a court of common law, for a sum of money decreed by the Lord Chancellor to be due to the plaintiff, and it is attributed to Mr. Tidd. This is not a high authority; because bad declarations may be drawn by eminent counsel; but Mr. Wentworth's system is deservedly in high reputation.

I should incline not to maintain an action at law, on a decree of a court of chancery of another state, if by the decree mutual acts were to be performed, unless the party suing averred and proved a performance of all the acts incumbent on him to perform ; because to sustain the suit Without requiring such aver-ments and proof, would be administering justice in a very partial manner. Viewing the decree in this caúse to be for the payment of a specific sum of money, unconnected with any condition, I can see no valid objection to sustaining the suit, and more especially as, in the state of Hew-Jersey, it had all the effect of a judgment of the supreme court there. In my opinion the defendant can take nothing by his motion. It may be said that agreeably to the case of Hitchcock and Fitch v. Aicken, decided in this court, the defendant might have impeached the justice of this decree, in which case this court would have to exercise a chancery jurisdiction. Suffice it to say that this objection does not exist in the present case, and that in suits here, on foreign judgments, the same difficulties might present themselves, of an examination into the local laws of a country, with whose jurisprudence we might be unacquainted. The case I have last cited does not warrant the conclusion, that where parties have had a trial in the court of a sister state on the merits of a cause, that in a suit here, on such judgments, the original ground of action may be gone into, and I cannot assent to the position that in such cases, the justice of a judgment can be impeached.

Livingston, J.

The objections taken on the trial were, on the argument here, substantially reduced to the following:

1 — That an action of debt will not lie on the decree of a court of equity, or at any rate, only in cases where a specified sum of money is decreed to be paid, and nothing more is ordered to be done by either party .

2 — That this is not a final decree, but only an interlocutory order, and

3-That the plaintiffs had no joint cause of action.

The two last objections will be first disposed of.

On what pretence can this be called an interlocutory order ? It has every property of one that would be deemed final in our own court of chancery. It directs how the costs of suit are to be paid, and reserves nothing for further decision. It is also signed by the chancellor, and, as it is but decent to presume he understood his duty, we must conclude it is signed, as directed by the laws of his state, after having been properly entered in a book by the clerk for that purpose.

As little weight is there, in the objection which is made to the right of the plaintiffs joining in this action. How the sum decreed to be paid is to be divided, is a matter between themselves, but that they have a right to join in its recovery, will be evident from a moment’s attention to the decree. It directs the complainant, who is defendant here, to pay both of the defendants, Post and La Rue, who are the present plaintiffs, the several sums for which they now sue. Nor does it appear from the final decree, that this is due to them in distinct rights, or in different proportions ; and if that may he inferred from any previous proceeding in the cause, we are not bound to look into it. The Chancellor undoubtedly had a right to decree the money to be paid to them jointly, and having done so, they could have no other than a joint execution, nor could they have brought separate suits for it. The form of action therefore is not only right, but jt is the only one which could have been adopted.

But if both these difficulties arc surmounted, debt, it is said, will not lie on the decree of a court of equity. In examining this point, I shall take it for granted, as is truly the case, that' this decree is for the payment of money only. A mere equity, it is alleged, is no ground of relief at common law, and that the objects of equitable and legal jurisdiction, being so very different, it is impossible the former can be enforced by the tribunals of the latter. This may be correct in the first instance; but after the origjnal ground pf complaint has been litigated and determined in chancery, why should not its decree or judgment, if for the payment of money, be the ground of an action at law, as well as the judgment of any other court? That we have no precedent of this kind is easily accounted For. Decrees in equity are more generally for the performance of certain acts, to which common law courts cannot compel obedience, and therefore the successful party can, in such cases, obtain execution, only out of saine COurt, Even actions on foreign judgments are not very common; because executions are generally issued out of the courts in which they are rendered against the-property or person of the party, or proceedings are had against the bail. No case can be produced in which it has been decided, that a court of law will not sustain a suit of this kind. That these courts have been unwilling to lend their aid to enforce the performance of decrees in equity, may be conceded, but such jealous conduct neither proves their want of right or power, nor is it deserving of imitation. And yet, with all this hostility, for it deserves no better name, towards a domestic tribunal, the British courts received as binding and conclusive the sentences of foreign admiralties, the judges whereof were governed by no settled or known rules, but by instructions of their respective sovereigns, which fluctuated according to the exigencies of the times, or the temper and views of those in power. They regarded these sentences as not only binding the property and securing the vendee, which was right, but as deciding in the last resort questions arising between third parties, who were no parties to the suit, and whether the same had been litigated or not, in the admiralty. If this be law in Great Britain as it certainly is, her courts of common law would hardly say, without being very inconsistent, if the question were fairly to arise, that they would not regard, at least as jirima facie evidence of a debt, a decree of the lord Chancellor for the payment of money, when both parties had been heard before him, and no complaint was made of his decision. Lord JSaims in his principles of equity, in speaking of suits which maybe sustained on foreign decrees, makes no distinction between chanceiy and common law judgments, nor is any distinction to be found in the constitution of the United States. Debt usually lies for a sum due by certain and express agreement, where the quantum is . gxe[| anci Specigc, ancf does not depend upon subsequent liquidation- Now' as every man is bound to pay whatever is assessed on him by the interpretation or sentence of law, such sum when ordered to, be paid, instantly becomes a debt and the party has a right to institute a second action to recover it. If even an amercement in a court leet or court baron, which are among the lowest order of courts, create a debt for which this action will lip, ft would be extraordinary indeedi if the sentence of the highest court in a state, did not raise an equal obligation, or sanction a remedy of the same kind. An obligee, who has lost his bond, may be driven into chancery to establish his demand, but when that court has depreed the obligor to pay the amount due, why should the complainant be put tq the trouble o.f going a second time through a court of equity in another state, to recover it ? What is he to do, if, as may well happen, there be no pourt of that kind in the state where his debtor may happen to be, or why should not a court of law pay as much respect to such a decision, which has liquidated and adjusted the demand, as to the judgment of any other court, without regard to the intermediate modes of proceeding. The one, as well as the other, furnishes abundant, and equal evidence that the sum demanded is due, and ascertained, which is all that \ye want to know. I doubt whether it was ever before heard, that the foreign tribunal, which is applied tq for redress, must enquire into the nature of the jurisdiction, or the manner of proceeding of the court, whose judgment it is thus palled on to support- Shall we refuse to sustain an action on a French judgment, because the modes of proceeding ⅛ France conform to the civil law ; or of a court in Holland, because its judicial forms may vary from our pwn ? If the sum be adjusted by a court of competent jurisdiction, and before which both the parlies have been heard, it is sufficient. Beyond this our inquiries ought not to extend. I lay no stress on the statute of ¿Yew-Jersey, which renders a decree in chancery, of equal effect with a judgment of its supreme court; because, for the purpose of this action, we are not bound tq take notice of the manner of proceeding in a foreign court of equity, even admitting, which we do not know judicially, that they are the same as with us; it is enough that it has settled what is due from the one to the pther of the parties litigant. But,if I had the smallest doubt of the propriety of this suit, this statute would remove it; for if it mean any thing, it jnust be, that in future, there shall be no difference in any respect between ⅞ common law judgment and a decree in equity. The difficulty which may occur, if it should he necessary on a trial to open a decree, with me creates no embarrassment. Why anticipate that a defendant will in any case be able to satisfy us that a foreign sentence or judgment ought to be opened : Notwithstanding our decision, in Hitchcock and Mich v. Aickexi, it will hardly be considered as a matter of course to go into an examination of the original ground of controversy. When a decree is opened on the principles of this case, it will be time enough to determine whether the party can proceed at law, or shall be non-suited. This is a case after verdict, and no attempt being made, at the trial, to impeach the verity or justice of the decree, why shall we now presume, and tiiat without any suggestion on the defendant’s part, that it was in his power to have done it?

3 B. C. 154, 158. ib. 159.

It will be expected that we take notice of another objection which is, that something else besides the payment of money, is contained in the decree. Were that the case, it would only give rise to a question, how far the plaintiffs should aver performance of the matters directed to be done by them ? For, with such averment the action might still be sustained. But it so happens, that the final decree, on which this action is brought, does not order a single thing to be done, except the payment of the two sums of money which constitute this debt. The Chancellor therefore must have been satisfied, that every thing he had previously directed the present plaintiffs to do, was performed. But if we look into the antecedent interlocutory orders, which very unnecessarily make part of the case, and with which we have no business (for we are not sitting here as a court of appeal or review) we shall find that all the matters of any -consequence there directed to be performed, are enjoined on the complainant himself, who is the defendant here. He is to pay the costs of a suit by Post in the common pleas of Bergen. Also the costs of an ejectment brought by La Rue., against Post, together with the fees paid by Post and La Rue, to their solicitor and counsel. His wife is also to execute and acknowledge a deed given by him to Post; La Rue and bis wife are then ordered (the performance of which is of no consequence to JVeafie) to execute a certain deed to Post. From this view of the interlocutory order it is evident, that as the non-performance of any one of these things, must either proceed from his own neglect, or be no detriment to the defendant, it would be idle to insist on an averment, that they were performed, or to consider these directions as a bar to the present suit.

• My opinion therefore is, that the postea be delivered to the plaintiffs, and .that the defendant take nothing by liis motion.

Tompkins, J.

I concur in the antecedent opinions, and peculiarly so in the present case, as I consider this, so far as it regards the plaintiffs, a decree for the payment of money only.

ÍCentj C. J.

The judgment of the court is according to the

Opinions delivered, but I dissent from them. In the examination, however, of this case, I shall confine myself to a single objection made to this suit; which is, that an action of debt at law, will not lie to enforce a decree in chancery, This objection appears to me to be insurmountable and decisive. It will readily be ad-rnitted, that there are various kinds of decsees in chancery, which--cannot be the ground of a suit at law. Such, for instance, as decrees for a specific performance, or those which contain multifarious matter, or involve acts and conditions to be performed by each party. But the present case is supposed to be free from any such difficulty, as it appears to be a final decree for the payment of a sum of money, without any condition or qualification annexed. The present objection, however, does not depend upon the nature of the decree in the given case, but it rests on an established rule, that a court of law will not recognise a decree in chancery as the ground of a suit, or of a plea. No instance has been shewn of such an action, and the universal silence in the books affords a a strong presumption that the action will not lie. Litt. Sec. 108. But there is stronger evidence of the law than that which results from the want of a precedent. It is, the settled doctrine that a decree in chancery is equal to a judgment at law, and executors and administrators, are bound equally to regard it in the distribution of assets, yet it is very clear that they cannot plead it, or give it in evidence in a suit of law, Jones v. Bradshaw, cited in Ca. Temp. Talb. 223,4. Why this is so, says Lord Talbot, I do not say ; but it is certain that so it has been uniformly held, and the consequence is, really, that the decrees of the court of chancery are considered as nothing: but the opinion of that court, as he continues to observe, has been different; and chancery will, by injunction, or otherwise, uphold and give efficacy to its decrees, as being of equal obligation with judgments at law. 3 P. W. 400. n. F. Morris v. The Bank of England, Ca. Temp. Talb. 218. 4 Bro. Pa. Ca. 287.

The steady resistance which the court of chancery met with from the courts of law, during the growth and progressive enlargement of its jurisdiction is probably one cause of the rule which is here mentioned. The earl of Nottingham in the case of Colston v. Gardner, 2 Ch. Ca. 43, complained that the judges at the common law were severe, and unwilling to support or assist the proceedings of chancery ; and he refers to some of their “ desperate” resolutions, of which many may be found in the reigns of Jiliza- beth and James. Brograve v. Watts, Cro. Eliz. 651, and others. If a decree cannot be pleaded to a suit at law, it follows that it will not support such a suit; for it would be an act bf inconsistency in the courts to take ‘cognizance bf i't in the one case, ahd not in the othér. A court of chancery on its equity side, is not, strictly speaking, a court of record. 4 Inst. Ch. 8. Its jurisdiction and proceeding's were originally considered as being confined to cases resting entirely iri eqriity arid good cpnsciefice, arid where the party was without remedy at law. Its decrees were ‘considered as operating only in Jiersonam, and that they did hot bind the lands or chattels. Until very receiitly, this was with us, the regular and direct 'operation of the decree, notwithstanding the remedy* by sequestration had been sb long established, and the lands were affected only by proceeding tb sequestration, as for a contempt. Bligh v. Darnley, 2 P. W. 621.

The reaso'n why the courts of law woúld nót take 'cognizance of decrées, is, therefore, to be deduced ffotn the history and peculiar jurisdiction bf the court of chancery in and although the reason of the rule rriay nbt now be applicable to sortie of its decrees, •yet we are nbt at liberty át this day tb Set aside the rule. We aré bound ‘to declare the law as it has beeri harided tb us, and the symmetry of brir system of jurisprudence, will be best preserved by Resisting innoVation. The plaintiffs aire not without remedy iri the present case, since our court bf 'chancery is the proper tribunal for 'them to resott tb, and for this we have an authority in Morgan's case, in the time of Lord Hardwicke, 1 Atk. 408. In that case a Welch corirt of equity had decreed payment of a legacy, arid the defendant, tb avoid execution bf that decree, fled intb England. A bill Was filed befo'r'e Lord Harawicke, stating the proceedings and decree in Wales, arid the flight of the defendant, and the‘chancellor sustained the bill after demurrer, holding that 'ari original independent decree .might be ha'd iri that court for the legacy.

Brit if a suit at law will riot lie ripori a decree of oiir own court of chancery, the Objection applies with much greater force to the decree iri the present case. For, after the decision in Hitchcock and Fitch v. Aicken, November Term, 1803, we are riot to consider a decree iri M-w-Jerscy, as of absolute obligation, but only jirimi facie evidence of such an equitable demand, which presumption the defendant fnay be permitted to rebut, and on certain grounds to open the merits of the controversy. To Sustain a suit on such a decree may therefore involve this court in the discussion of a wide field of equitable jurisdiction, and ih the exercise oí which its powers might be found to be holy inadequate. This difficulty would of itself be sufficient to bar the present action; for it would not be fit and proper that this court should assume cognizance of a cause, if it be not competent to meet the questions that may arise upon the merits, and afford the requisite relief.

But it is Said, that by an act of the Legislature of New-Jersey, a decree in chancery has the force, operation, and effect of a judgment at law, and is to be enforced by sequestration, f. fa. and ca. ca. This fact, however, cannot make any alteration in the case, and that for several reasons. It does not obviate the difficulty arising from the last objection I have taken, for foreign judgments and decrees are equally examinable here. Nor did the act probably ihtend any thing more than to make decrees a lien upon the property, in like manner and effect as judgments. It did not mean to confound the jurisdiction Of courts of law and equity, nor interfere with the rulés by which they were respectively governed. But whatever might be its intention and effect there, that statute has no operation upon the established principles of our own jurisprudence.

For these reasons I am of opinion that the present action is not maintainable.

Thompson, J.

I concur in the last opinion, on the ground our decision in Hitchcock and Fitch v. Aicken. Were it not for the principles of that case I should be rather inclined to think an action woüld lie on a decree, where nothing but a simple debt was to be paid. But as the determination cited, places the judgments in sister states, on the same footing as foreign judgments, it would allow of opening the decree and shewing the consideration on which it was pronounced. This might lead us to equitable ’discussions ; for, if the decree is to be opened at all, I know not where we are to stop. There is no poi^u^R rule to direct or gov-oin. A court of law, therefore, mighLbe competent to give the due relief. For this reason, I think the defendant ought to take ⅛0 effect of his motion.

       1 vol. 460.

       In the circuit court of the U. S. for the district of Connecticut, an action was brought on a decree of the equity side of the superior court of the state, for the payment of money. On demurer to the declaration, Chase T. ruled that an action at law would not lie upon the decree. Stove v. Hinkley.


source: Caselaw Access Project

author: Livingston, J.

license: Public Domain

text:
    The Ship Nancy, John Murray owner, against, John Fitzpatrick.
    NEW-YORK,
    May, 1805.
    The mayor’s court of the city of New-York is a court of general jurisdiction, and therefore it is not requisite to allege that cause of action arose within the limits of the city and county of New-York. A mis-recital of the title of a statute in a part which does not alter the sense, when its date is truly set forth can not be shewn as error, or after verdict, alleged in ar rest of judgment. If under the law authorizing the arrest of ships, the residence of the owner be put in issue and found against him. it cannot be urged tor error that the declaration did not aver the ownertobea Under the same act a plaintiff may recover beyond the amount of his bills annexed to his declaration, if the sum be within the damages laid and costs may also be recovered. The judgement against a vessel proceeded against under the above law is that she remain liable &c.” and whether she is to sold or not, is for the court below. A person claiming to be owner may come in and plead in an attachment against his vessel, without entering an appearance or filing bail, and a verdict on an issue to his plea and judgment thereon is good.

      IN ERROR from the mayor’s court, on tin attachment by the now defendant against the ship Nancy under the act of the 10th of August 1798 “ authorizing the arrest of ships or vessels, for “ debts contracted by the master, owner or consignee, for and on “ account of such ships or vessels, in this stale.”
    The declaration contained two counts against the vessel, in actual custody of the sheriff of the city and county of New-York, alleging in the first, the work and materials furnished to amount to 96 dollars 36 cents, and in the second to 9 dollars 48 cents, and in both, that they were so afforded at the request of her cap tain, who promised to pay what they were reasonably worth, with , . . “le common averment, and notice, fee. annexing bills which contam-ecj an account of the demand. To this Murray came in and pleaded, , . —-ist, 1 he general issue as to the promises — 2dly, That the ship was not owned by a rion-resident, but by himself. On these pleas sepá- , r rate issues were taken, and a verdict being found for the plaintiff on eacV assessing the damages with interest, and giving costs judgment was entered “ that the said ship or vessel called the « Nancy, remain liable to the said John Fitzpatrick, for his damages “ &c. and also for forty five dollars and eighty-seven cents, being a j-c_ which damages in the whole fee.” The plaintiff now assigned for error, 1st, That the verdicts against the ship were rendered upon issues taken to the pleas of John Murray, who was no party to the record, neither appearance nor bail having been entered or filed for him. 2d, That by the common law, and custom of this state, no such action could be maintained. g^ That the declaration did not shew the materials fee. to have been furnished within the jurisdiction of the mayor’s court. 4th, That the act was misrpeited in using the plural number “ masters owners and consignees” instead of the singular; there being such act as that set 5th, That the declaration did not aver the ship, at the time when the materials fee. were afforded, was owned by a non-vesident. 6th, That the jury had assessed damages beyond the amount of the account annexed to the declaration. 7th, That the judgment was futile and nugatory, on which no execution could issue, and gave the plaintiff below, no other remedy than he had before. 8th, That costs were given against the vessel, for which she was not liable.

      Hopkins for the plaintiff in error.
    It is in vain to attempt to support a judgment which is in itself incongruous and utterly senseless. The act cannot be carried into execution by any mode of proceedings in existence ; at least not by such as are now before the court. On the point of costs it is silent, none can be recovered. For the statute giving costs, gives them only where damages were recoverable before. Wilkinson v. Abbott, Cwop. 367. The third error is, it is conceived fatal. In all suits in inferior courts, the cause of action ought to be shewn to arise ^ withia its jurisdiction. 1 D. & E. 151.

    Spencer, J. That is in cases where the court has a limited jurisdiction as to territory.

      Hopkins. If, however, this be otherwise, there is no such statute . as that stated. It may not perhaps be necessary to recite a public act, but when attempted, it must be faithfully done. 3 Salk. 831.
      Cro. Eliz. 236. 1 Com. Di. tit. action on statute. I. These authorities may be thought applicable to proceedings on indictments, and other criminal matters; but the same principle is found in actions on assumpsit. Cowp. 474.  The non residence of the owner ought to have been averred, as it is of the essence of the action. The law makes this the git of the suit, and it is ° -upon this only that the statute can be enforced. Com. Di. Tit. Pleader, c. 76. The amount of the damages ought to be confined to that stated by the bills. It is for this purpose that act requires the accounts proceeded for, to be annexed to the de-elaration. This was meant to control the damages laid; there is manifest error therefore in giving more than are claimed. If it has been intended to cover, by the excess, the interest due; it is still within the reason advanced. The bills do not demand it, and the present case is, by the statute, made essentially to differ from those in which the damages laid, are considered as the sum claimed. It may be urged that the verdict has cured some of the faults, and therefore, they cannot now be relied on for error. The rule is this, when the right, or title is set forth defectively, a verdict will cure it; but when a defective right, or title is stated, no verdict will cure it. That is, a verdict will cure form, but not substance. Doug. 679.

       Time and place may thus be aided ; but not matter. Co. Litt. 303. b. 7 Rep. 25. a. As therefore the non-residence is not averred, and the jurisdiction not shewn, the judgment must be reversed.

      Dadcliff, contra.
    The proceedings in this case are under a special apt, creating a mode contrary to the common law, and adopting a remedy in the nata re of admiralty jurisdiction. They • are therefore, to be construed with the same liberality, as that court is accustomed to use. The words of the statute are to the sa»e effect- In the Sd section, the principle of that forum is adopted. All persons having demands, are authorized to join in one declaration, the form of which is prescribed. They are to “ briefly set forth their demands, allege the work to be done at ⅝ the request of the owner, master or consignee, as the case really « is, averring demand and refusal, and annexing the accounts.’’ The act excludes the necessity of stating either non-residence, or that the cause of action arose within the jurisdiction. But there is another answer to these objections. The law requires that, previous to granting the attachment, an affidavit be made stating the fact of non-residenpe, and that the materials &c. were furnished where the vessel then is. The presumption then must be, that these circumstances have already been shewn in that part of the proceedings where it was requisite they should appear. Besides the now plaintiff has put these facts in issue; a verdict could not have been obtained without their being substantiated, and the finding, of the jury is, of course conclusive, that they were' proved. I may add on the point of jurisdiction, that it has beep decided, our courts of common pleas have geperal jurisdiction in pH transitory causes. The English decisions are to the same effect. As to the misrecital it is mere surplusage. That the assessment of damages is beyond the value of the account annexed can never be ruled an error ; because the damages laid in the declaration are beyond those recovered. With as little reason can the judgment be impeached on account of the costs allowed. The act under which the suit below was instituted, authorizes a reference according to act the for the “ amendment of the law,” and by that, costs are given. It may be added that our “ act to reduce certain laws, concerning costs into one statute” was passed after that authorizing the arrest of ships, and that it gives costs wherever damages are recovered. Besides the very act in question gives costs against the vessel when liberated, on the claimant’s entering into bonds to pay the money for which she may be attached. The suit below rests on positive statute, not the common law. Therefore its form, and the judgment rendered are to be conformable to the act. It is ordained that the judgment shall be, that the vesse| remain liable. The court below can only affirm the rights of the ' there, and order the vessel to remain liable to them. If vise debt be satisfied, the attachment will be superseded, and the ship discharged.

         Trevor v. Wall.

        Mills v. Wilkins.

         Vander Plunken v. Griffin.

       Mann v. Green.

        Rushton v. Aspinall.

        Butt’s Case.

         1 Rev. Laws. 346.

       1 Rev. Laws. 528.

       4 Sect.

   Per curiam, delivered by

Livingston, J.

The first error assigned, or at least relied on, is, that it is not alleged in the declaration, that the work was done, or the materials found, within the jurisdiction of the court below.

The Mayor’s court of the city of New-York, may hold plea of actions arising in any part of the state, as well without, as within the limits of the city. It is not necessary, therefore, to state that the cause of them arose within its jurisdiction to give it cognisance, any more than if the suit had been depending in this court.

2 — -The second error is, that the title of the act is misrecited. The words “ masters and owners” are in the plural, whereas in the act they are in the singular number.

There is some confusion if not jargon in the English books on this point. In some authorities we are told, that as the title is no part of a statute, its misrecital is not fatal, but only surplusage. 1 L. Ray. 77. Hard. 324. In others, it is laid down, that R public statute need not be recited in pleading, but if a party undertake to do so and misrecite it, the misrecital is fatal. Cro. Eliz. 236. From other cases we find the misrecital of a statute in a material jioint only, is fatal. Cro. Car. 136. 522. 2 Bulsir.

4748. 2 Mod. 99. From other decisions again, it would pear that if a party, in pleading or declaiing on a public statute, conclude contra formam statuti jinzdicti, a misrecital is not fatal; for, as it was not necessary to recite the statute, the judge, although it be misrecited, will take notice of the true contents, 1 L. Ray. 382. Plowd. 7984. It is also laid down in another case, that a misrecital of a public statute in a part, which does not go to the ground of action, is cured after verdict by the statute of Jeofails. Styles. 241.

After an examination of these different cases, and comparing them with the one before us, we are warranted in coming to this conclusion ; that a misrecital in the title of a public statute, in a part which does not alter the sense, and when its date be truly set forth, shall never be a cause for arresting judgment, after verdict, or be assigned as error. Courts are supposed to be acquainted with all public acts, and whether their title be irub or falsely recited, they will be satisfied that such act as the plaintiff or defendant relies on exists, before either party shall avail himself of it. Thus in the present case it is not denied that there is a jaw as the plaintiff has declared on, and because a clerk has made the plural, of the singular number in its title, without however in the least altering its sense, it would but little comPort ^le en<^s °f jusuce, if not be a slander on the court to insist on its considering such variance as fatal after verdict. I therefore disregard this objection to the judgment below.

3 — It is alleged that it does not appear that the owner of the Nancy was a non-resident.

Whether this objection might not have been valid, if this had not appeared to be the case on some pavt of the proceedings» I will not say ; but when this fact was very properly put in issue below, upon the plea of the party too, who prosecutes this writ of error, and it is expressly found that the plaintiff’s demand arose while the ship was owned by a non-resident, we should be inexcusable now to listen to this allegation. It may indeed be doubted whether the issuing of the warrant and its continuing in force, be not sufficient evidence of non-residence. If the ship of a resident were to be proceeded against in this way, surely a su-persedeas might be obtained on satisfactory proof of that fact.

4 — Tlve damages it is said, exceed the plaintiff’s demand. The jury have allowed interest, as they had a right to do. How then does it appear that they have given more than the plaintiff claimed, which, by his'account annexed, could only be for the principal of the supplies furnished ? But the damages laid in the declaration which alone we should .look at, are greater than the sum recovered. This objection therefore fails in point of fact.

5 — Costs, it is supposed ought not to have been allowed ; because, if damages are .given where none were given before, no costs are recoverable. But is that the case here? Were not damages recoverable before this act, for work done or materials found for a vessel ? If the action had been referred, as might have been done under the third section, costs would certainly have been allowed; for the act concerning costs, which passed in 1801, declares that where damages are recovered, the parly shall have costs too.

6 — The last assignment is, that the ship by the judgment is to remain liable for the damages and costs. If costs ought to have been given, as has been already shewn, it is reasonable that they, as well as the damages, should be a lien on the property. So, by the fourth section, it is provided that the vessel may be discharged from the attachment, on security being given to pay the demand, with costs of suit. But it was, further said, in support of this objection, that the judgment could not be executed, and should therefore be reversed. How the judgment is to be enforced, whether by the sheriff’s keeping the property until the costs and damages are paid, or whether the vessel may be sold to raise the money, are points to be determined in the court below, and not now before us. I should presume the first to be the proper course, and to me it appears a pretty effectual way of carrying into effect the judgment that has been rendered. At any rate, if the judgment be such as the law prescribes, and in my opinion it literally conforms to the act, it ⅛ not for us to say it is erroneous, merely because there may be a difficulty in its execution ; nor have we a right to render the law a dead letter, because all its provisions are not such as meet our approbation. The legislature intended, as is the case in some other countries, to make the vessels of non-residents liable for certain demands. The present plaintiff has pursued the directions of the act, and we cannot, for any of the reasons which have been assigned, deprive him of the judgment and lien he has obtained on the ship in question. The judgment below must therefore be affirmed.

         Chance v. Adams.

         Attorney General v. Hutchison & Pocrek.

       Vander Pluckens v Griffith.

       1 Cro. Car. 136 522

       Say & Seal v Stevens.

        Goodwin v. West.

        Crock v. Rooke by.

        Cockman v. Churchill.

       Platt v. Hill.

         Patridge v Strange & Crocker.


author: Thompson, J.

text:
    Ebenezer Stevens against the Columbian Insurance Company.
    NEW-YORK,
    May, 1805.
    Under a policy on freight, the gross amount is, on a total loss, the sum to be recovered.
    THIS was an action, on an open policy, for the recovery of 16,000 dollars, underwritten on the freight, by charter party, of the ship Swan from the Havanna, to New-York. A total loss and the plaintiff’s right to a verdict were admitted ; but the defendants contended, that as the plaintiff would, had the vessel arrived safe, have necessarily been put to the expense of wages and provisions, though the whole freight would have been due, so, in case of a total loss, (he amount of those wages and provisions was what the insurers were entitled to deduct.
    The jury having, by consent, found for the full sum mentioned in the policy, it was now brought before the court to determine, whether he ought to recover the gross amount as subscribed for in the policy ; a specific proportion only ; or the actual net freight after making the deduction insisted on.

      T. L. Ogden for the plaintiff.
    Freight is the compensation, or hire paid to the owner of a vessel, at the termination of the voyage, for the use of his ship. The contract between him and the . underwriter, is, that he shall receive it notwithstanding any or the perils insured against. In the present case then, the amount ^le Plaintiff would have to receive, is that specified in the charter party, and that sum is the subject Of the insurance in the policy on which this action isbtought. Upon these principles, what has the underwriter to pay in tase of a total loss ? The value of the subject insured at the commencement of the risk, as it is settled by his subscription. Practice on other policies shews this. In the case of insuring a ship, a month’s wages and provisions are allowed in her outfit. These, if she return safe, are consumed and expended, yet no deduction Was ever attempted, because the owner would, at the end of the voyage, receive the bare vesseh If the principle be allowed against the freight, it must equally operate against the body of the ship. Nay, it will authorize subtracting the Very repairs that may be required in consequence of deterioration during the voyages Shawe Telton, 2 Hast, 109, is in point to shew that the value of the subject insured, as it stood at the commencement of the voyage, is what the Underwriter Upon a policy to the full amount, must pay if a total loss take place. The case was this. A policy was effected on ship and goods for an African voyage. The goods wéré invested in slaves. The vessel sunk in the very port of delivery, but the slaves were saved. The Underwriters contended for a deduction to the value of the slaves purchased by the cargo, but the court held the plaintiff entitled to a recovery without any deduction. The principle is, wherever the right to freight has commenced, the whole is due. Thompson v. Taylor, 6 D. isf JE. 478, is strohger than the present. There the insurance was, at and from London, to Tenerife and the West~India Islands, upon freight under a charter party, for a cargo of wine, to be taken in at T'eneriffe. The vessel sailed and was captured on her way to Tenerife before she had a single pipe of wine on board, yet the insured recovered without deduction ; because» as the right to freight, though inchoate, had commenced, the underwriter was bound to pay all that the insured would have received, had the accident not occurred. If this be not the law, the question then is, what must be the measure of deduction ? If the seanlen's wages and provisions, then in almost every case, there must be a law suit, for in hardly any two, will they be alike. Besides the amount of these for one month, is always covered by the policy on the ship. Suppose the vessel captured within that time, rast on entering her port of destination, so that the , ' , , , , c , ... „ voyage would clearly have been performed within the month, must the insurer on freight pay nothing ? Even a specific proportion may be far from attaining the ends of justice. In some cases, it might be more, in some less, than a compensation.

      Pendleton, contra.
    On this precise point, their being neither any determination, nor usage, it must be considered and decided on principle alone. The question is what ought to be recovered, on a contract which is purely one of indemnity ? The foundation of all such, is the maxim of the civil law, which says, no man shall gain by the loss of another. The compensation, therefore, must be no more than the injury actually sustained. 2 Marsh. 529. 2 Emer. 221. “ Insurance is not a lucrative contract; its only “ object is to indemnify the insured from loss.” The receipts on an accident, ought to be ho more than they would be on safe arrival. The reason why the deterioration, and repairs of a vessel are not deducted, by the underwriter, from the amount of the policy on a ship, is, that had she returned, they would have been actually compensated for, by the freight. The insurer, therefore, pays no more, than the insured would have received. Vessels and goods, have a value at the very outset of the voyag-e, but freight has none. It does not acquire any till the termination of the ad-venturi;, and that is the reason, some writers term insurances on this kind of interest, wager polices. But what is freight, when the voyage is concluded ? Nothing more than the surplus, after paying wages and provisions. If then on a loss, the insured receive that surplus, and those wages and provisions, he gains by the loss in contradiction to the authorities cited. This affords a strong temptation to fraud. Suppose a ship, insured for an East-India voyage, at 20,000 dollars, her freight at 16,000 dollars, of which the necessary charges of pilotage, wages and provisions, amount to 6000 dollars. The ret sum without any misfortune Would be 10,000 dollars. But if, according to Emerigon, an officious accident intervene, one or two clays after sailing, the insured would clear within a trifle of ,6000 dollars by the mischance. The court therefore, will limit the recovery, so as to do away this inducement to fraud. To prevent this as much as possible, the French law obliges the assured always to keep at his own risk one tenth of the property insured. What is at risk, constitutes the only interest in a policy. More than that, certainly ought not to be recovered. Wages are not at risk, foV ’0y a }'oss they ave saved. In cases of bottomry, the lender can insure only his principal, but not his interest; nor can the borrower cover more than the surplus value of his vessel, after deducting the sum advanced. In an open policy, freight, according to Millar 247", means “ the actual net freight.” Marsh. 467", recognises this idea, in stating the amount freight shall contribute for, in a case of general average. We have adopted the same principle; and in the case of Leavenworth v. Dale,

       settled it at one half. If the owner is to contribute no more, then he ought to recover for no more. Millar, page 231, states the English practice to be according to the rule contended for. In an insurance on freight generally, a total loss is calculated to be the net freight, or positive gain. Otherwise the insured would gamble for the residue. By referring to Marshall, the case of Thompson v. Taylor, appears to have been on a valued policy. The arguments, therefore, deduced from it, do not apply. There is no uncertainty in taking an aliquot part of the freight as the amount of expenses, because in all cases, the proportion will be the same.

      D. B. and T. L, Ogden, in reply.
    The right of deduction contended for, is said to be founded on the nature of a policy of insurance, which being a contract of indemnity, all that ought to be asked for, is what would have been received. As a general rule this is true ; but general rules are adopted, only as most likely to promote the ends of justice. In some cases therefore, the one in question is not attempted to be enforced, though the insurer may pay more, or less than the injury sustained. In a policy on goods, only prime costs and charges are recovered, though interest, and profits have been lost. Under an insurance on a ship, though she founder at the extreme part of the voyage when greatly deteriorated, thfe full value, as at the commencement is paid. Shawe v. Felton, 2 East. 109. And this very decision shews what reliance can be placed on Millar, when he lays down what is the English law ; for, in page 247 he says it must be “ the probable value of the ship at the date of the loss, with ex- “ pense of outfit.” This position of his, is at war with all the English, and with all our decisions. The cases in which freight and ship are valued, are those of general average, arising between third persons, and not between assurer and assured. The estimate is made to settle the proportion they are to pay of another’s loss, and not the value of their own goods for which they have given a premium. Suppose an insurance on. freight, an abandonment, payment, deduction and restoration. Would not the owner of the goods be obliged to pay the underwriter on freight the full amount ? This very point now contended for was agitated in Pennsylvania before judge Washington, and though a usage for the deduction was established, he ruled against it.

       It was a valued one.

       1 Vol. 573.

   Per curiam, delivered by

Thompson, J.

I am inclined to think the assured is entitled to recover the gross amount of freight. Although indemnity is the leading object of insurance, it is not always the criterion by which to ascertain the amount of the loss. In an open policy on goods, the rule by which to estimate a total loss, is the invoice price, and all duties and expenses, till they are put on board, together with the premium of insurance. After a long voyage, and when the goods had almost reached a profitable market, it might with plausibility be urged, that the above rule would not afford an indemnity ; but to depart from it, however reasonable and just it might appear in some cases, would lead to endless uncertainty and litigation. So, likewise, in an open policy on a vessel, her value at the time she sails, with the expense of her outfit and premium, is the rule by which to estimate a total loss. It has frequently, with great propriety been said, that in matters of commerce the plainest and simplest rules are always best.' They are easily learned, and easily obtained, and do not depend on any subtilties and niceties. No general rule giving a specific proportion of the freight, could with justice be adopted. It would operate unequally by reason of the great diversity in the distance and expense of voyages ; and to adopt the net amount of freight as the rule, would lead to much litigation and uncertainty respecting the deductions to be made. But to take the gross amount of freight, as the rule of damages, would be equal, simple and easily ascertained. Mr. Justice Lawrence, in the case of Shawe v. Felton, says, the period to look to in order to ascertain the value of the subject matter of insurance, is when the vessel sails, and not the state of the thing at the time the total loss happens. The case of Thompson v. Taylor, may be considered, in some manner as illustrative of the practice in England on this subject. Some doubts have been raised, whether that was an open, or a valued policy. I think however that it is pretty evident it was an open policy. Park in his report of the case expressly so states it, and although it might be inferred from the statement of the case by Durnford and East, that it was a valued policy, ye(; j(. 1S allee.ed m the arguments of counsel to have been an, open policy, and that circumstance is made the basis ot some of their reasoning. The question there was, whether the -assured right to freight had commenced, the vessel being under a charter party to sail from, London to Teneriffe and there take in her cargo, as she had been captured before her arrival at Teneriffe, before taking any of her cargo on board. The court determined that there was an inchoate right to freight the instant the vessel sailed from London, and the assured recovered the gross amount of the freight stipulated in the charter party. In that case we hear nothing respecting deductions, although the vessel had performed, only a very small part of her voyage. Had the practice in England warranted such a claim, it would doubtless have been made. Upon the whole, I think, to take the gross amount of freight as the measure of damages is the least exceptionable rule, and most in unison with the acknowledged principles adopted in analogous cases, and not altogether without authority to support it. The opinion of the court therefore is, that the plaintiff have judgment upon the verdict of the jury, according to the stipulation in the casé.

       Page 36, a. He was counsel in the cause.


author: Kent, C. J.

text:
    Albert Smedes, Executor of Arientie Hieistead, against William P. Hooghtaling and others, heirs of Philip Hooghtaling, deceased.
    NEW-YORK,
    May, 1805.
    Interest may be recovered beyond the penalty of a bond. But whether it shall be so or not, is matter of law arising from the facts, and therefore, for the determination of the court, not of the Jury. Acknowledging a bond, and apologizing for not paving it, is a circumstance to rebut and destroy the presumption arising from not paying interest for 25 years.

      THIS was an action brought in October, 1802, on a bond, dated 4th June, 1776, conditioned for the payment of 200 pounds, with interest at 4 per cent, on the 4th day of June then next. The defendant pleaded payment, and relied on the presumption of law arising from lapse of time since the instrument was given, On the trial no evidence was adduced of interest having been ever Paid,nor was there any indorsement to that éffect on the obligation, From the testimony of a mesne assignee, who was released by the plaintift, it appeared that the bond had, on the division of the obh-gee’s estate, been taken by the mother of the obligor, as a part of , ,. her share m it; that this was done at his because “ he t. then should never have to pay it.” That the mother herself, had declared, she had nothing; against the obligor,” but did not give a discharge, on being threatened by one of her daughters to be ⅛ turned out of doors if she did. It was, however, in proof, that in the same year, in which the mother of the obligor made the above , , . _ , declaration, he was called on for the payment, when he acknow-Jedged the bond to be due, and apologized for' having suffered it to remain so long unpaid-
    Upon this testimony the jury found for the plantiff, but a question then arose, whether the interest could be calculated beyond • the penalty r A verdict, however, was taken for the full amount, on an agreement to reduce it, in case the court should be of opinion, that it could not, but no new trial to be granted pn that account.
   Fer curiam, delivered by

Kent, C. J.

This case is submitted without argument. On a review of all the decisions on this sübject, the court think this rule ought to be adopted. That interest is recoverable beyond the penalty of a bond. But that the recovery depends on principles pf law, and is not an arbitrary, fid libitum discretion of a jury. In the present instance, we are of opinipn, that it is due, and therefore, the verdict to remain unaltered.


text:
    Henry Livingston against John Delafield.
    NEW-YORK.
    May, 1805.
    If the information of the loss of a vessel be known in a place early in the morning of the day on which a policy is effected at noon, it is not proof of fraud in the underwriter though, it be brought by some of the crew of the ship insured, if it do not appear that they had been on shore. If it be doubtful whether a communication as to the time of a vessel's sailing has been made, a new trial will be ordered to ascertain that fact, especially if from the amount of premium it may be inferred that it was not duly stated, but should circumstances render it difficult to establish on the second trial, the facts well proved on the first, the order for the second, will be, on condition of admitting those facts.

      ON a valued policy upon the body of the ship Eliza, Henry Livingston master, from Jamaica 10 New-York, opened the 16th of November 1801, and subscribed by the defendant op the 18th, at a quarter before 12 o’clock, for the ordinary premium of six fer cent. On the trial, the policy, abandonment, and interest were proved. The latter by a British register, granted at New-Providence, in the name of the plaintiff. The other facts, ip evidence, so far as they are important to the present decision, were these.
    The insurance in question was effected by the order pf Isaac Riley, who had shipped on board the Eliza, for the outward voyage, a number or horses, driven for hirn from Connecticut, by one of the ship's crew, named Brainard, who, after sailing in her from Jamaica on the 25th of September, and seeing the vessel founder at sea, in consequence of starting a butt in a gale of wind, arrived, with another of the seamen belonging to her, at New-York, during the night of the 17th of November. It did not, however, appear that they had been on shore, and the vessel in which they came, was, early in the morning, .ordered down t.o the quarantine ground, as she had passed it the evening before. Nor was it clearly in evidence, that at the period when the policy was opened. any communication was made as to the time whep the Eliza sailed, though the broker, through whose intervention it was done, testified, that uponhis first instructions on the 16th to procure insurance for only 2,000 dollars, he immediately advised covering the vessel to a larger amount, which Riley, declined, saying he would wait. That on the ! 8th, Riley called about ten o’clock in the morning and desired 2,000 dollars more to be effected, and on the increase of premium a few days might occasion, re-1 jo presented, as the vessel was out of time, was induced to give direct j¡0HS for 3 ooo dollars to be procured. That Riley staid three 1 . quarters of an hour in the office, and then went away, upon which fhe witness took the policy to the Coffee-House, opened it again, _ and instantly after the defendant had sub cribed, the news of the joss 0£ ¡.¡le ⅞⅛ was brought in. That he communicated this about one o’clock to Riley, whose countenance did not betray any conciousness of fraud. That he adtised Riley to make the defendant an offer of examining the persons who arrived, Onread-;na. a Wntten memorandum, handed to the witness to refresh his memory, it turned out to have been made in his office, by Riley, on the 18th, specifiying the sailing of the ship to have been about the 3d of October, according to which the witness swore, he be-lived his representation on that point, to have been made to the first underwriter, by a written order for insurance, shewn on the 16th and delivered to the defendant when payment was demanded. The memorandum read, contained a detail of Riley’s transactions on the 18th of November ; from which he appeared to have been occupied till the moment of receiving the account of the loss from the broker, in quarters of the town, where the news had not arrived. Rut it was in evidence, that Riley had been for some time, in •the habit of calling every day, about 10 o’clock A. M. at the office of one Lang, a printer of a daily paper, in great repute, for the marine information it affords, to inquire for .ship news ; that intelligence of the loss of the Eliza had been received there, very early on the morning of the 18th, that Riley, on that day, did not call till near two o’clock in the afternoon, and then requested Lang to take notice, he had not called that morning. There were some slight circumstances tending to shew that Riley was the person actually interested in the vessel.
    On this evidence, the judge charged the jury, that payment was resisted on two grounds, 1st, Because the assured knew of the loss previous to the insurance. 2d, Because the time of the vessel’s sailing was not disclosed to the defendant, by which she would have' appeared a missing vessel. As to the first; it was a principle of law, that fraud should not be presumed, though It * , , , _ might, as other matters, be established by circumstances. It was not proved positively, that Riley knew of the loss before the tosur-anee was made. From the arrival, in this pert, of the two mea belonging to the crew of the Miza, the night before it was effected, it did not necessarily follow, that Riley knew of the loss, there being no evidence of their having come on shore. • Upon the whole, he was of opinion, that the proof on this point was not satisfactory. As to the second point, he said he had considerable doubta. Me rather thought the broker mistaken, as to his having communicated the time of sailing to the first underwriter on the 16th. There was pretty strong proof of this in Riley’s memorandum, from which it appeared, that he himself did not know when the vessel sailed, until the 18th of November. Upon this charge, the jury brought in a verdict for a total loss, to set aside which the defendant now applied on the following grounds. 1st, When the parties live in the same place, if the assured might have known of the loss in the usual course of business, such knowledge must be presumed until the contrary be shewn by evidence on his part. In the present case, it might have been so known, besides, particular facts from which it might be presumed. 2d, The vessel being admitted to be greatly out of time, proof of the time of her sailing, and that other vessels had arrived, and brought the assured intelligence of her having sailed before them, ought to have been communicated to the defendant. 3d, That it was the duty of the broker to have communicated it, (if he knew it) is not sufficient evidence to found a presumption that he did so.

      Pendleton for the defendant.
    Facts may afford grounds to presume fraud. The retaining possession of goods by a vendee after an absolute sale is one, out of many other instances. The arrival on the 17th, of a man in New-York, who belonged to the vessel, and had driven the horses she had carried for Riley, together with his peculiar conduct on the 18th, at the printing-office of Lang, are sufficient to induce an inference that he knew of the loss of the Eliza before, the defendant underwrote. Positive proof of knowledge is not required, where there is a general repoit of a fact. In such cases the rule is, that- slight evidence, or, as Rooms, Not. 78, expresses himself, semi-plena, probationes, shall be enough. These he defines in the same place to be conjecture, presumptiones, ct indicia. In 2 Emer. 124. 5. 130, 133. the principle is recognised, and many authorities cited to the same effect. Do not then the circumstances here amount to tfiesfi flrobaliones? In Stewart v. Dunlop, Park, 209, there was no actúal evidence of the assured's having known of the loss of the vessel insured, yet it was presumed merely because a person had arrived, who had brought the intelligence, and comma* hicated it in tile city. ' In Da Costa v. Scantieret. Park; 179. the Suppression of a doubtful account of a vessel like that of the assured’s, being taken, Was ruled to be á fraud. Upon the second point there can be no ddiibt. The time of sailing, coiild not have beeh communicated, for it appears that though the Vessel was greatly Out of time, she was, notwithstanding,' underwritten at Only the ordinary premium. This is a sure criterion to determine the nature of the representation made. Pdwson v. WatsoA⅞ Cowfl. 78$.

      Johnson and Hoffman, cortti'a;
    The principles relied on are applicable only to those frauds which arise from presumptions jurih iit de jure, and are the effect of positive institution, against which ho proof can be allowed, 2 Etner. 139. It is for this reason, that when the facts are ascertained, the judge, according tó the code in which those rules subsist, pronounces whether the circuni" stances amount to fraud or not. The very origin of these regulations are sufficient to induce their rejection by us. They are Selected from the ordinances of various codes, and wére founded átícórding to Pothier, No. 21, on the rareness of good faith among ffiert, aild the difficulty which the insurer sustained in proving a positive fraud; Milldr, page 75, states that they are of bo authority in the English law. And even In the very system where the positions laid dbwn for the defendant are allowed,, they do not extend to any other cases than those of frauds by-ordinance. Tor both Emerigon ail’d Roccus assert that the general rule is, to deemail transactions bond.fide, till-the contrary be proved. 2 Emer. 1-32. Ro.c-.M>t-. 51.7S. But the conduct of-the defendant in permitting the seamen who arrived on the 17th to depart, without examination, ought to preclude .him from casting an air of suspicion on the transaction. -He.had it in his power to have procured their testimony, and has neglected to do it. The question bf fraud has been, fairly submitted to that tribunal which by our jurisprudence is authorized to decide on it, to the jury,, and they have pronounced in favour of the plaintiff. 'The day of the sailing Of the Eliza is, by the broker’s testimony, said to have been communicated as stated in Riley's memorandum. If this was &ne on the 16th, and thé premium then, was only six per cent, • the lapse of two days could not have much enhanced the amount. There is, therefore, no reason for granting a new trial, especially as from the register not being ndw in our power, We may be non-suited for want of proving interest.

      Harison and Pendleton, in reply,
    enforced the original positions of Pendleton.
   Per curiam,' delivered by

Livingston, J.

The motion to set aside the verdict in this case, is made on the grounds of fraud and concealment. The fraud alleged, is, that Riley, who caused the insurance to be effected, knew at the time that the vessel Was lost.

Fraud, like other matters, may be established by circumstances» But the jury were not necessarily bound to conclude that Riley knew of the loss, because two of the Eliza’s crew had arrived in this harbour, in the night preceding the day on which the insurance was made, especially without proof of their coming on shore ; nor because intelligence of it had been received at one of the printing-offices in this city, as early as eight in the morning of that da^. This might be, and yet Riley know nothing of it. These and other circumstances have been submitted to the jury, and we cannot say, their verdict on this point is contrary to fevidence, or that we are at all dissatisfied with it.

The charge of an undue concealment appears to be better Supported. The vessel sailed on the 25th of September 1801, and when Riley ordered insurance to be made, he admits that he knew of her sailing as early as the 3d of October ih that year. This fact, which was a very material one in computing the risk, there is too much reason to believe, was not communicated to the defendant previous to his subscribing the policy on the'18th bf November, 45 days after the ship had left Jamaica. The same risk was underwritten only two days before, and the same policy Was used, when it was not suspected or known that the Eliza was out of time, at the same premium, at which Dclafield wrote bn the 18th, when it was known by the assured, or his agent ■Riley, that she was a missing vessel. It cannot be believed that any underwriter, however hardy, would not ask more than an ordinary premium for insuring a vessel which had been out 45 days, between Jamaica and this port. Seton, the insurance broker, certainly does not prove that he made this communication io the underwriters. The order which he speaks of was deliv-ercd to those wlio underwrote on the 16th, and therefore, could not have contained the information which Riley did not acquire until two days after. It is remarkable that in the memorandum made by Riley, of his transactions on the 18th, he does not say, that he informed Seta?; when the Eliza sailed. The contrary may fairly be inferred, from .the advice Set on gave him, to have ' insurance-made immediately “ as the risk would increase in a “ few days very considerably.” This observation would hardly have escaped the broker, unless he had then expected to get insurance at the ordinary premium, which he could not have supposed, if he had been informed how long the vessel had been out. A face of so much importance ought to have been more satisfactorily proved. There is no pretence for saying, the order for insurance is in the defendant’s hands, unless, as is stated, it be the one which was given on the 16th. If that be the case, which is highly probable, it would furnish conclusive testimony against the plaintiff on this point. It would establish that Seion> in obtaining an insurance on the 18th, repeated, or gave the same information to the underwriter, as was given on the 16th, and was silent as to the time of sailing, which a man so intelligent and correct would not have been, if that fact had then come to his knowledge. Knowing also the importance of his employer’s feeing able to prove so essential a communication, he would have been careful to preserve evidence of it. • But if a written communication was given on the 18th different from that of the 1 th, and it is in the defendant’s possession, the plaintiff should have put himself in a condition to prove the contents, by giving-notice to produce it.

Upon the whole, we think this fact ought to undergo a further investigation, and therefore order, that a new trial be had, upon payment of costs.by the defendant, and further that he admit on the next trial the plaintiff’s interest, and preliminary proofs.


author: Spencer J.

text:
    John Bunn and Benjamin Dickinson, Assignees of Smith Valentine, a Bankrupt, against Robert Morris and Gabriel Wisner.
    NEW-YORK,
    May, 1805.
    If severalpersons unite »n an adventure the profit and loss of which is to be shared and borne according to their respective proportions and the whole be received by a third person under an express promise to pay the shares of each, according to the several interests he can not set up any equities which one may have against the other, or object that they were partners, but must pay according to his promise.

      ASSUMPSIT for money had and received, the first count laying it to the use of the bankrupt before his bankruptcy ; the second, to that of his assignees. From the evidence disclosed at the trial, -the following appeared to be the circumstances of the case-.

      Valentine, the bankrupt, being owner of one third of the sloop Mtncy, agreed with the firm of Jackson & Perkins, who were triers owning another third, to load the vessel for the West-Indies he to furnish one half of her cargo, and they the other 5 either party to make up any deficiency that might arise on Ms, or thefr side ; the whole, however, to be sold in the West-Indies, and the proceeds invested in a return cargo. But, except in this transaction, Valentine was totally unconnected in business with the partnership of Jackson 2c Perkins, who constituted a house distinct from him ; and even in the present association, they were to share in profit and loss, yet it was to be only portion to the lading they respectively put onboard. The vessel having sailed on her voyage, Jackson & Perkins, previous to her return, in consideration of 5000 dollars, expressed to have been paid, but when in fact not one had ever passed, assigned the whole of her return cargo to Abraham Varick, and the defendant Wisner u to be applied to take up all notes drawn by Jackson & Perkins in “favor of, and indorsed by Bennet 8c Brower, so far as they might “ legally be so applied and no further.” At the time of this assignment, which was totally unknown to Valentine, the assignees, Varick 8c Wisner were perfetly acquainted with the interest of Valentine, to whom no communication of the transaction was made, and on the arrival of the sloop, before which period Valentine had stopped payment, some difficulty about the division of her cargo being apprehended, the whole was put, with the consent of all parties, into the hands of the defendants to sell on commission, upon an express undertaking by them to pay separately to each house, its respective proportion of the net proceeds. Subsequent to this, the house of Jackson & Perkins became insolvent, and Jackson being examined, swore that Valentine had, after placing the property with Morris k Wisner, agreed that his share should, in the first place, be disposed of ifi satisfaction of such balance as might be due from him to Jackson & Perkins on account of the shipment and taking up of certain bills then unpaid, but indorsed by them for Valentine, in consequence of which, they had taken up notes to the amount of 1884 dollars 94 cents. Every word of this was flatly denied by Valentine, who deposed, .that he always declared to Jackson & Perkins, that the whole of his interest, in the cargo of the Mmcy, should go to his general creditors, and that.he forbade paying any of his notes, as both he and Perkins Ec Jackson were insolvent.
    On this testimony the counsel for the defendants insisted the plaintiffs ought to be non-suited. 1st, Because Jackson & Perkins were so interested with Valentine m the cargo ol the Nancy as or otherwise, as to be enabled to make a legal transfer 0f the whole cargo. 2d, That the assignees, standing in the place of Smith Valentine, could recover no more from the defendants, than Valentine could have done from Jackson 8c Perkins, and as to trigh a balance was due, there consequently could not be a recova ery.
    The judge having overruled the last position, reserved the first for the opinion of the court, and then, leaving the credibility of the witnesses to the jurors, charged for the plaintiffs, in favor of whom the jury found.
    Application was now made to set aside this verdict, and grant a new trial for a variety of reasons. The decision of the court, however, was confined to the second only, which was, that allowing Valentine and the house of Jackson gc Perkins to be tenants in common of the cargo, and therefore, as between them no action would lie, yet the promise of the defendants to account separately to each, rendered them liable, independent of the nature of the tenancy,

      Hopkins for tire plaintiffs.
    It is immaterial how many persons were interested in the property in question, or of what nature their interests were; the express promise pf the defendants was to pay according to the several rights, and therefore, became a sep? arate engagement to each, for his proportion.

      Piker and Wilkins, contra,
    The benefit of this pro mise is claimed by assignees, and therefore subject to all the equities which could be urged against their bankrupt. The defendants are entitled under Jackson & Perkins ; whatever, theiefore, they might claim against Valentine, Morris and Wisner may, against his assignees.

      Hopkins was told it was unnecessary to reply.
   Per curiam, delivered by

Spencer J.

It was left to the jury to decide on the accuracy and credibility of these witnesses, and it seems that they believed Valentine. The only question, therefore is, whether the assignment made by Jackson and Perkins, can, under the circumtances of this case, defeat the plaintiffs’ recovery.

From the manner in which the case is presented to the court, }t is to be intended, that the defendants have solcj the cargo, are possessed of the money, and that no difficulty exists of ascertaining the respective interests of the parties. It will not be necessary to decide, whether Jackson and Perkins, and Valentine were partners with respect to the cargo. If they were not, there could not exist. ⅜ shadow of doubt, and if they were partners, the objection does , ' J not lie in the defendants’ mouths. They have no concern with the partnership ; their undertaking was to pay each house, rately, the net proceeds of the property. As respeets the defendants, it was a several and distinct undertaking. The case is too clear for argument. The opinion of the court is, that the plaintiffs are entitled to judgment on the verdict,