author:
Sandford, J.
      Paine, J.,

text:
    Fitch and others v. Livingston and Flanagan.
    Each state may pass such, laws, affecting commerce, to operate within its own limits, not in direct conflict with the provisions of the constitution of the United States, or acts of Congress, as are necessary for the preservation of the life, the health, the personal rights, and the property of its citizens, and of those enjoying its protection.
    In such statutes, a state may lawfully add to the requirements already made by an act of Congress on the subject of navigation.
    So far as there is an implied conflict arising from a state law adding further requisites, or an act of Congress requiring less than the state law already exacts, the municipal law of the state must govern, so far as it falls within the scope of police regulations as above defined.
    The state laws regulating vessels in ports and harbors, pilotage, the quarantine of vessels, cargoes, and passengers, wrecks, inspection and auction sales of foreign goods, and the navigation of itsrivers and lakes, fall within the principle before laid down, and depend upon it for their validity.
    The statute of this state enacted in 1826 and continued in the revised statutes, which requires every steamboat navigating the rivers and lakes of this state, in the night-time, to carry and show two good lights, one near her bows and the other near her stern, is still valid and obligatory upon all such vessels, whether navigating from place to place within this state, or from foreign states, under a coasting license, notwithstanding the subsequent enactment of Congress in 1838, that every steamboat navigating at night shall carry one or more signal lights.
    The statute applies to the class of steamboats known as propellers, as well as to those in use when it was enacted.
    A local usage of navigation, forming a part of the common law of a state, is valid on the same ground and no other, in respect of the power and legislation of Congress upon the subject, as is a statute of the state affecting commerce or navigation.
    Under the statute giving a lien upon ships and vessels for damages occasioned by collisions, and an attachment of such ships and vessels therefor, the remedy is confined to the actual damage to the vessel injured, i. e., to the amount necessary to repair and put her in as good condition as when the accident happened. '

    The owners of the injured vessel cannot, in this proceeding, recover for their loss of earnings, or other like damages, consequent upon the collision.
    But the expense of towing the vessel to her place of repair, and wharfage while repairing, are proper items of damage.
    The owners are also entitled to recover interest on the amount of the damages, from the time of the injury.
    (Before Oakley, Oh. J., and Sandford and Paine, J. J.)
    Feb. 13, 14, 17;
    April 12, 1851.
    This suit was commenced on a bond executed by the defendants to the plaintiffs, in the penalty of twelve thousand five hundred dollars, dated June 9th, 1846. After reciting, that on the application of the plaintiffs claiming to be owners of the steamboat Santa Claus, one of the judges of the Albany common pleas, had granted a warrant, under the statute for the collection of demands against ships and vessels, against the steamboat propeller Ocean, by virtue of which warrant the propeller was attached by the sheriff, and that the defendant, Livingston, one of the proprietors of the propeller, had applied to the judge for an order to discharge the vessel from such attachment ; the condition of the bond was, that the defendants should pay the amount of such claim as the plaintiffs should establish to have been a subsisting lien on the propeller at the time of the presenting of such claim to the judge. The declaration alleged that on the fifth day of June, 1846, the Santa Claus was on her passage from Albany to New York, down the Hudson river, having on board passengers and a cargo, when she was run afoul of by the propeller, through the negligence and carelessness of those in charge of the latter, and was very much damaged, that the injury to the vessel and her cargo, and the plaintiffs as owners, amounted to $6200, and that the plaintiffs’ claim for such damage was a lien upon the propeller when she was attached.

      Tbe defendants pleaded, first, non est factum ; secondly, that the Santa Claus was not injured through the negligence or misconduct of those navigating the propeller; and thirdly, that the plaintiffs’ claim was not a subsisting lien on the propeller at the time of the presenting thereof to the judge.
    Upon the trial of the cause before the chief justice, in June, 1849, it appeared that in June, 1846, the Santa Claus, owned by the plaintiffs, was running as a mail steamer between New York and Albany. On the night of June 5th, she was on her way from Albany to New York with the mails and passengers, and about twelve o’clock at night, when about two hundred yards above Dunderbarrack Point, (which is on the west side of the river about thirty rods above Caldwell’s Landing,) a collision took place between her and the propeller Ocean, which was proceeding up the river. The Ocean struck the Santa Claus at an angle in the aft part of the forward gangway on the larboard side, cut through her guard to the shaft and into the hull, breaking one of her wheels, injuring her plank shear in several places, and doing other damage. The barber of the Santa Claus, who was in his shop forward of the wheel, was killed. At the time of. the collision, the Santa Claus was going at the rate of about fifteen miles an hour, the propeller four or five miles an hour. The Santa Claus carried four lights, two forward near the deck, and twp aft, elevated twenty-five to thirty feet above the water, and showing forward. They were globe lights, about six inches in diameter, and were strong and clear. The testimony as to the lights on the propeller was conflicting. Several witnesses • testified that she had up both a bow and a stern light, while others were positive that she had no light at her bow, and that in consequence she was taken on. board the Santa Claus to be a vessel at anchor, until it was too late for the Santa Claus to-avoid a collision. The course of the river from Anthony’s Nose to Dunderbarrack, a distance of three miles, is nearly straight, and runs from northwest to southeast. The banks are high, the sky was overcast, and though tbere was a moon; she was setting, and the river was shaded by the hills on the west bahk. • This part of the river is called the horserace, and is about three-fourths of a mile wide. There is an island about a mile long, between those points. Below'the island the water is very deep, the west shore straight, and a steamboat can run safely within fifty feet of the shore. After passing Dunderbarrack Point, the course of the river is southwest, and below Caldwell’s, still more to the west.
    The Santa Claus was approaching Caldwell’s Landing to make her .usual stoppage there. One point of the defence was, that those on board of her were guilty of great negligence and carelessness in keeping her so close to the west shore of the river, whereas, from Anthony’s Nose to Dunderbarrack Point, she ought to have kept in the middle or eastern part of the river, so as to keep clear of’ vessels which might be hidden behind the point in the bend of the river. There was a great variety of evidence on this subject, in reference to the relative position of the two vessels, the state of the tide, &c., which it is not deemed necessary to state. A great number of pilots and other witnesses testified to the necessity of a steamer in motion in the night showing two lights, in order to enable those navigating the river to discern her course. Some other facts proved are mentioned in the charge and the opinion.
    The expense of the repairs to the Santa Claus was proved to have been $1930.80. The expense of towing the Santa Claus from Caldwell’s Landing to New York was $50, and from thence to the dry dock $15. The wharfage paid was $24.75. And there was an item of $16 paid for furniture. Besides these, amounting to $2036.55, the plaintiffs claimed to recover the following charges. The Santa Claus was laid up in consequence of the accident from June 6th to- June 24th — eighteen days. "When it occurred, she was chartered to the People’s Line of steamboats, at $125 per day, and the average daily expenses of running her were $75 a-day, making her net earnings $50. Eor the lost earnings during the eighteen days, the plaintiffs claimed to recover $900. The wages of the crew during the same period, paid by the plaintiffs, amounted to $321. They also paid the loss in the barber’s room, $25.
    It appeared that the Ocean was an iron vessel of about 180 tons burthen, and loaded with about 160 tons. She was rigged with masts and sails, and had a stern submerged propeller, which was worked by steam. It was conceded that her principal owners resided in the city of Philadelphia, and that she was enrolled and licensed as a coasting vessel under the act of Congress. At the time of the collision she was on a voyage from Philadelphia to Albany.
    On the testimony being closed, the counsel for the defendants requested the judge to charge the jury as follows:
    1. The legal pecuniary damages of a collision are only the expenses of repairing the injuries.
    2. Consequential damages cannot be allowed.
    3. Loss of time, loss of profits, and hire of crew, are consequential damages.
    4. If the propeller was pursuing her voyage close under the west- shore with a view to save the advantages of water and wind,'in such manner as not to be in the known course of vessels bound down, she was not in fault in doing so.
    5. The Hudson River is an arm of the sea, and subject to the jurisdiction of Congress; and if a vessel from another state complies with the requisitions of the act of Congress on the subject of lights, then, so far as that is concerned, she was fully and properly equipped.
    6. The propeller Ocean was not bound, under the act of Congress, to carry more than one light.
    7. On the subject of the lights, the jury are bound to give more weight to the positive and affirmative testimony of the witnesses who testify that they saw the two lights, than to the negative testimony of those who only say they did not'see more than one light.
    8. If the Santa Claus was guilty of negligence, the plaintiffs are not entitled to recover.
    9. If the Santa Claus was running in the night-time at such a rate of speed as to be dangerous to other vessels in the pursuit of their lawful voyages, that was negligence in the Santa Claus.
    10. If the pilot of the Santa Claus allowed his attention to be distracted by a third person in the pilot-house with him, while in the charge of the wheel, that was negligence in the Santa Claus.
    11. If there was not a proper look out on the Santa Claus, in addition to the pilot, that was negligence.
    12. If the master of the Santa Claus was not particularly experienced in the steam navigation of the river, that was negligence.
    13. If, after the propeller was seen, the Santa Claus might have avoided or prevented the accident, and did not do it, that was negligence.
    14. If she did not slacken her speed until it was too late, that was negligence.
    15. If the accident would not have happened if the Santa Claus had kept her usual and proper course, and the Santa Claus went out of her usual and proper course, that was negligence.
    16. If the propeller left her usual and proper course, but did not put herself in the usual and proper course of the Santa Claus, the Santa Claus had no right to leave her course, and doing so, cannot recover.
    17. If there was room to pass under the stern of the Ocean, it was negligence to attempt to pass under her bows.
    18. If the Santa Claus sheered to the west after she, saw, or could have seen, that the propeller was' going to the west, and there was abundant room to the east,,that was negligence.
    19. A vessel of great speed, having the wind and tide free, is bound to avoid a slow vessel going against wind and tide.
    20. There is no law requiring vessels to be on one side of the river more than the other. The rule that vessels must go to the right applies only to vessels meeting each other on the same line, on whatever side of the river it may be.
    21. All the rules of navigation are but general rules; and if to prevent an accident it be necessary to disregard them, they should be disregarded; and it is negligence to observe them if collision will be the probable consequence.
    22. If it was light enough to see the propeller at a sufficient distance to avoid her, and she was so seen on board the Santa Claus, then the want of a light would only subject the party to the penalty under the act, but would not make her liable for the collision.
    The court gave the jury the following instructions as to the law of the case:
    1. That by the law and usage of the river, as clearly established by the evidence, when vessels are approaching each other in a direct line, and it is necessary to change their course to avoid a collision, it is the duty of each to pass to the right; and that this law or usage is so specific and general, that every person navigating the river is presumed to have learned it, and is bound to observe it.
    2. That every steam vessel on the river is bound, at night, to carry two lights in the usual manner; and that the law of Congress, alluded to by the defendant’s counsel, did not affect the state law on the subject.
    3. That the omission to show two lights was a decided act of negligence, and, if the propeller were guilty of it, was sufficient, of itself, to charge the defendants, if the jury should be of the opinion that the collision was justly attributable to that cause.
    4. That whether the propeller had one or two lights displayed at the time of the collision was a question of fact; that the evidence on both sides, as to that fact, was of an imposing character, and must be weighed by the jury.
    5. That there was no law or rule that vessels navigating the river should keep on either side of it, but they might pass up or down on either side, always regarding the rule as to passing each other to the right, when necessary to deviate from their course.
    6. That if the propeller had but one light, or was in any other respect guilty of negligence, still the plaintiffs had no right to recover, provided the collision was, in any degree, owing to a want of proper care and diligence on their part to avoid it; and that, if the jury should be of opinion that the steamboat,' after the course and situation of the propeller was, or ought to have been-observed, could have passed clear of her, on either side, by the use of proper exertions' and care, then the defendants were not responsible, as in all cases when an injury arises from the mutual fault of the parties, neither is responsible to the other.
    7. That the great question for the jury, upon all the evidence was, whether the injury complained of by the plaintiffs arose from the negligence of the defendants, without any negligence on the part of the plaintiffs; and if the jury, having regard to the instructions given by the court as to the law, should so find, then the plaintiffs were entitled to their .verdict.
    8. As to the rule of damages, if they find for the plaintiff, he is entitled to recover the expenses paid to the mechanics, &c., for their bills of repairs, and to the expense of towing the steamer to a proper place to make the repairs.
    9. As to the other items claimed, the plaintiff can recover only direct, and not consequential damages; he is not entitled to recover loss of profits; but it may well be questioned whether certain wages of the crew, and loss by detention, are not direct damages. The jury will, therefore, (the parties assenting,) take the plaintiff’s bill of damages, and allow such as they think proper, marking such as they allow, and the court will correct the verdict, if the jury err.
    The defendant’s counsel excepted to the charge, as to all those parts of it which were not in conformity to the points submitted by him.
    The jury found a verdict for the plaintiffs, subject to the right of the court to reduce it; if they should be of opinion that any item of damage had been improperly allowed; and in such verdict allowed all the items of damages claimed, except the sum of $321 paid for wages of hands while the Santa Claus was laid up. The jury also gave interest -on the amount of the damages.
    The defendants moved for a new trial on a bill of exceptions, which was argued also as a case.

      B. O. Benedict, for the defendants.

      First — This is a statutory action, to enforce a statutory right; and the plaintiff can recover only according to the statute. The action is on a bond conditioned to pay a lien on a vessel under that act, and the recovery must be confined to that lien. (Act of April 26, 1831, chap. 318, p. 421; 2 R. S. 500, § 43.)

      Second — By the statute it is provided that “ whenever any vessel shall have been run down or run afoul of by another vessel, by negligence or wilful misconduct, and shall have thereby sustained damage, (not the owners, but the vessel,) the owner shall have a lien upon the ship causing such damage “ to the extent of such damageThe lien is thus confined by the act to actual damage to the ship herself. The- owners’ claim for general damages can be recovered only in a personal action for damages against the owners.
    It was not intended as remedy for the undefined damages recoverable in case, or for smart money. (Ship Novelty in N. Y. Leg. Observer.)

      •Third — If the plaintiffs are entitled to recover in this suit, the following items should be deducted from the verdict; they are none of them items of damages to the boat: Detention of steamboat, $900 ; towing from Caldwell’s, $50 ; towing to dry-dock, $15 ; the steward’s bill, $16 ; eighteen days wharfage, $24.75 ; funeral expenses of the barber, $25; interest, $617.94. (3
    Wheat. 546, Amiable Nancy; 5 Ibid. 385 ; 2 Ibid. 327 ; 3 Pet. 85; 3 Dali. 333; 5 Leg. Obs. 442, The Scioto; 6 Ibid. 198, 334.) Interest is not allowable. It is not damages sustained by the collision.

      Fourth — If the suit were against the owners for general damages, these items could not be allowed, being remote and consequential. The difference in value is the measure of damages— the cost of repairs the evidence of the amount. (Angell’s Law of Carriers, §§ 482, 483, 484, and citations.)

      Fifth — The court erred in the second, third, eighth and ninth paragraphs of the charge. (Angell’s Law of Carriers, §§ 650, 482.)

      Sixth — The court erred in. not charging the jury as requested in all the points requested except the second, eighth, and twentieth. (Angell’s Law of Carriers, §§ 650, 656, 657, 661, 662:)

      Seventh — The verdict is against the weight of evidence. The testimony shows only a case of mutual misfortune, from the force of uncontrollable circumstances. There is no evidence of negligence or wilful misconduct on the part of the propeller.
    (The counsel then argued the question of negligence at large. He referred the plaintiffs’ counsel to the authorities on which Mr. Cutting would rely in reply.)

      JH. SancLford, for the plaintiff.
    There was evidence on both sides of every disputed question of fact, and the court will not disturb the verdict on the question of evidence. The evidence, when examined, is clearly with the plaintiffs. The want of. two lights on the propeller is fully proved. Ten witnesses prove it, besides those who were hands on the Santa Olaus; and that was the undoubted cause of the accident. It was also shown that the propeller’s pilot was incompetent. (The counsel enlarged upon the evidence in the case.)

      Second — The loss from the detention of the steamboat, she being, at the time of the collision, under a charter, upon which the net earnings of the boat were fifty dollars per day, was a direct damage to the plaintiffs, occasioned by the negligence of the defendants, and is recoverable in this action. The act of 1831, giving this remedy by attachment of vessels, was not intended to split up causes of action by giving a remedy by way of lien for injuries to the hull of a vessel, and a different remedy for all other injuries growing out of a collision, even to the expense of towing the vessel to the place of her repair. It is against principle thus to split up causes of action. (Bendernagle v. Cox, 19 Wend. 207.) The object of. the statute was to give a full remedy against the colliding vessel, wherever she might be found. The consequential damages are just as much money out of the pocket of the owners as the direct. The intention was to give the same damages as in an action on the case against tbe owner. The act of 1831 professes to extend the revised statutes giving liens, &c., to this class of injuries, and the act thus extended is full and ample. The words in the act, “ damages thereby sustained,” mean damages in consequence of the collision. The loss of the use of the steamboat, is an injury to the boat, because she was built for use. The statute does not mean the loss from her mere physical destruction.
    The loss by the detention of the vessel for repairs, is in 'some shape recoverable. In the Steamboat Rhode Island v. Naugatuck Company, in the U. S. circuit court in this district, Judge Nelson allowed six per cent, interest on the value of the injured vessel, as an approximation to an indemnity. That case establishes the principle. There is no more difficulty in ascertaining such damages, than where a person, hired for a year’s service, is wrongfully dismissed, and cannot find employment. And see Vanderslice v. Newton, in the court of appeals, October, 1850. (Now reported, 4 Comst. 130.) The detention here was a direct, immediate, and necessary consequence of the collision.
    The loss of profits, where it is a certain and direct consequence of a breach of contract, is a proper item of damages. (Masterton v. City of Brooklyn, 7 Hill, 61, 67.) And if this be true of an executory contract, d- fortiori, it must be true of an injury arising from negligence or misconduct. (White v. Moseley, 8 Pick. 356; De Wint v. Wiltse, 9 Wend. 325; Lincoln v. Saratoga R. R. Co., 23 Ibid. 425 ; 1 Poth. on Obi. 159, 162, 167.)
    As to the allowance of interest, I refer to Watkins v. Lawton, 8 John. 213, 217; Amory v. McGregor, 15 Ibid. 24, 38; Van Rensselaer v. Wood, 2 Comst. 135, 140.
    (The counsel then examined the defendant’s points made at the trial, and the charge of the judge thereon. As to the fifth and sixth requests, he argued,)
    The usage of navigation and the state law required two lights to be carried by this propeller. The act of Congress does not interfere with these. The eighth and ninth sections of the act have no application to rivers. The tenth section applies, it is true, to the master of every steamboat. If the master display one light, he escapes the penalty of the act. But whether he will not incur the penalty of negligence, when in showing only one light he fails to comply with the usage of navigation in local waters, the act of Congress is silent. It is in unison, and not in conflict or collision, with the state law. Congress has not undertaken to say that the states cannot regulate navigation within their own limits for the safety of persons and property.
    Our legislation commenced in 1826, and it makes no difference whether the propulsion of the vessel is- behind or at the side, if it be by steam. The same is true of the usage. Thd established usages of navigation in the river Thames are abundant, but they are not by statute. Navigators are bound by them, on the same principle that underwriters are bound to know the courses of trade and of voyages. The statute of this state is not one regulating commerce within the decision of the Passenger Cases, thus in 7 Howard, at pages 433 and 435. It is a police power, applicable to all alike who navigate by steam within our waters. It is the exercise of political power, to direct or restrain vessels in the navigation of its rivers, for the safety of all. And see the remarks of Mr. Justice Daniel, in 7 Howard, 501.
    (The Chief Justice said, if the defendants are right, all the laws of this state regulating navigation are void; because as to all, the subject is within the power of Congress, and that is claimed to be exclusive. Mr. Cutting. — We so contend, with the qualification laid down in Ogden, v. Gibbons.)

      F. B. Gutting, in reply.
    As to the question of damages. The petition and affidavits on which the warrant issued were presented to the officer three days after the collision. The statute requires the damages claimed to be stated in the petition and verified. Therefore no damages not then existing are recoverable, and this cuts off fifteen of the eighteen days claimed for detention. Then the condition of the bond is to pay the claims which were subsisting liens when the petition was presented. So in the pleadings, the claim upon which a breach is alleged is described as a subsisting lien when the bond was given, and does not cover prospective damages. If the defendants had settled the claim when presented to the judge, this demand for demurrage would have been wholly conjectural. Could the plaintiffs have presented a bill of such a demand ?
    On the terms of the statute, it is only for injuries to the vessel, for which it creates a lien, and that attaches eo instanti the collision occurs. The claim now is for damages which might and ¿light not be incurred by that event. It is for profits, and it has been decided that they cannot be recovered in the Naugatuck Co. case, and in Newton v. Allaire Worlcs. In the latter, damages were claimed for the delay in completing the vessel, and it was proved she could have been hired for $300 a day, and that she would have earned as much profits. The judge allowed wharfage, the expense of keeping the vessel and of insurance, and six per cent, interest on the money expended in building her, but nothing for profits. The case of French v. Brown, 13 Wend. 601, is decisive of the question.
    Next, as to the necessity of exhibiting two lights. This was a coasting vessel from Philadelphia, enrolled and licensed there. She had not stopped at any port in this state. The state law is applicable, 1. only to vessels navigating exclusively within this state, and not to vessels from other states; and 2. only to such steamers as were in use in 1826, carrying passengers. As to the latter, propellers are first named in any statute, in 1843, in an act of Congress exempting propellers from certain provisions of the act of 1838. (Laws of Congress 1843, ch. 94.) They were unknown in 1826, when the state act was passed. It speaks of steamboats only, and does not apply to a class of vessels not then in use or even known. In that act, all the sections prior to the eighth relate to the subject of passengers on steamboats on the rivers and lakes.
    This act was passed just after the decision of the case of the North River Steamboat Company v. Livingston, which was in 1825. (3 Cowen, 713.) It was established in that case in effect, that a state cannot prescribe to coasters from another state, how many anchors she shall have, or what crew or fittings shall be provided for them, and hence this act.
    This case does not depend on usage; it is a question of positive enactment, and depends on the statute only. Suppose we had offered to prove a usage to carry only one light ? It would have been excluded. The court did not put the case on usage at all.
    The case of Ogden v. Gibbons, (9 Wheat. 189,) shows what state legislation may act upon. It can regulate ferries and all matters of internal navigation. It may protect its citizens from pestilence, the influx of vagrants, and the like. It may enact all police acts, when such acts have hot been legislated upon by Congress. As to what are police powers, I refer to 7 Howard, 423, 435. The navigation of its canals is thus within the scope of the state legislation. But a state cannot prescribe any thing as to commerce and navigation between the states. It may regulate commerce between its own ports, but not beyond them. Suppose a statute of Pennsylvania were to require vessels navigating the Delaware river at night to show four lights, and one of our coasters were to navigate there with only one light, would she be liable? Would not the act of Congress protect her?
    There may have been a question of negligence in this case independent of the act of Congress, but the cause was not put to the jury on that ground. (The counsel referred also to 6 Howard, 424, and 7 Ibid. 311.)
   By the Court.

Sandford, J.

The court charged the jury, that every steam-vessel, navigating the Hudson River, is bound at night to carry two lights, in the usual manner; that the omission to show two lights was a decided act of negligence, and if the propeller were guilty of it, and the collision were justly attributable to that cause, the defendants were liable. This presents the principal question in the case. The jury undoubtedly found that the collision was occasioned by the propeller’s omission to carry more than one light, and we see no reason to find fault with their conclusion upon the evidence.

The provision of the state law on the subject is found in a title of the revised statutes, entitled, “ Of the navigation of rivers and lakes, and the obstruction of certain waters.” The eighth section is as follows: “Whenever any steamboat shall be navigating in the night time, the master of such boat shall cause her to carry and show two good and sufficient lights, one of which shall be exposed near her bows, and the other near her stern, and the last shall be at least twenty feet above her deck.” This enactment was originally made in 1826. (1 R. S. 684; Laws of 1826, p. 253, §§ 3, 4.) The necessity for such a regulation, in the crowded channel of the Hudson, was abundantly shown by the evidence on the trial.

The defendants contend, first, that the hybrid class of steam-vessels, designated as propellers, are not steamboats within the meaning of this statute; that the act was designated for steamboats as then known, constructed with side paddles, and moved solely by steam, and does not apply to vessels propelled by sails as well as steam, using stern submerged paddles or screws ; and that such steam vessels were not known when the revised statutes were adopted. We do not think this argument has any weight. A vessel propelled by steam is a steamboat within the meaning of the act, whether the power be applied in one part of the vessel or another, and whether the vessel uses the auxiliary power of sails, or relies solely upon steam. The propellers attain a high rate of speed, and are as dangerous at night to other craft navigating the river, in proportion to their relative speed, as the large passenger steamboats running from sixteen to twenty miles an hour. They are clearly within the letter as well as the spirit of the law.

The great point of the defence is, that the propeller was not bound to carry more than one light, because she was a vessel owned in another state, navigating a river subject to the jurisdiction of Congress, under a national enrolment and license. The act of Congress of July 7, 1838, (Ch. 191, of acts of C. 1838, page 171, § 10,) makes it the duty of the master and owner of every steamboat running between sunset and sunrise, to carry one or more signal lights, that may be seen by boats navigating the same waters, under the penalty of two hundred dollars. It is contended that under this act .the propeller was not bound to carry more than one light, and if she complied in that respect with the act of Congress, she was fully and properly equipped; whereas the court instructed the jury that the act of Congress did not affect the state law on the subject.

The defendants argue that no one state has a right to prescribe the fitments necessary for a coasting vessel from another state coming into its waters; nor pass laws regulating or prescribing commerce and navigation between its own territories and those of other states; that its power over these subjects is restricted to its own inland commerce: that the state law requiring two lights upon steamboats navigating our waters is clearly an act regulating navigation, and therefore void as to coasting steamboats licensed and navigating under the laws of Congress; and Ogden v. Gibbons, 9 Wheat. 189, and the Passenger Oases, (7 Howard’s U. S. R. 283, 311, 423, and 435,) were relied upon as decisive authorities in favor of the defendants.

This point presents the long vexed question as to the extent to which the respective states may go, in enacting laws which directly or incidentally regulate commerce. The constitution of the United States has given to Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” It is agreed that navigation, from one state to another, is commerce, within the meaning of the constitution. It is still an open question whether this power is so far exclusive as to make void all state legislation which regulates commerce or navigation, in matters not legislated upon by Congress, though the weight of authority is that such legislation is valid. (Passenger Cases, 7 Howard, 399, 430, 471, 488, 498, 545, 554; License Cases, 5 Howard, 504, 581, 583.) A solution of that question, in favor of the state authority, would not relieve this case, because, since the revised statutes, Congress has legislated upon it by the act of 1838. Judge Woodbury, in his able and elaborate opinion in the Passenger Cases, p. 557, claims a concurrent power in respect of commerce on the rivers between different states. We do not feel at liberty, however, to repose our judgment solely on that general ground.

There are some regulations which have been conceded, or clearly established, in favor of state legislation. Such are the laws imposing health, quarantine, and harbor regulations and restrictions, those regulating inspections, sales by auction, and the preservation of vessels and property wrecked, and the laws respecting pilots and pilotage. Acts of Congress recognize and enforce some of these laws; and the state pilot laws are often referred to as standing by force of the act of Congress of 1789; but it is difficult to understand how that act can support the multitude of pilot laws enacted by the different states since its passage. Except the act of Congress of 1837, so far as it bears on the subject, almost the entire mass of pilot laws in this Union rests upon the unsupported validity of the state laws. (See 5 Howard, 580.)

All of these classes of state laws to which we have referred, affect commerce more or less directly. Many of them directly regulate navigation, both foreign and between the states; they have been sanctioned, or silently acquiesced in, on the ground that they are police regulations, ordained under the power which every state of necessity retained for its self-preservation, in the distribution of legislative power between the states and the general government. The definition of police powers is not clearly ascertained in those cases where they have been considered by the supreme court of the United States. A broad legal definition of the term embraces all legislation for the internal regulation and domestic order of the state. (4 Bl. Com. 162.) In 5 Howard, 583, Chief Justice Taney says, the police powers of a state are nothing more or less than the powers of government inherent in every sovereignty to the extent of its dominion. Another learned judge observed, that the police of the ocean belongs to the general government, but not that of the harbors and the land. (5 Howard, 471; 7 Ibid. 523.) The subject was much discussed by the judges of the supreme court in the Passenger Cases, as well as in many prior cases in that court; but the line of distinction between laws affecting commerce, which are within the police powers of the respective states, and those which, assuming to operate within the states, trench upon the authority of Congress under the constitution, is still vaguely marked.

If any principle may be deduced from the decisions and the opinions of the judges of that high tribunal, it is this — that each state may pass such laws affecting commerce, to operate within its own limits, not in direct conflict with the provisions of the constitution of the United States or acts of Congress, as are necessary for the preservation of the life, the health, the personal rights, and the property of its citizens, and of those enjoying its protection. To that extent, it appears to us, the municipal laws of the respective states must be valid, whether they be called police laws, or by any other name.

The state laws regulating vessels in ports and harbors, pilot-age, and the quarantine of vessels, cargoes, and passengers, are very striking illustrations of this principle; and of the same character, and clearly falling within the principle, is the act of the legislature of this state, regulating the navigation of our rivers and lakes. It was indispensable to provide, by stringent enactments, for the safety of lives and property, when so powerful an element as steam came to be in common use in our narrow rivers and crowded inland waters. Hence the passage of the act of 1826, continued in force and extended by the revised statutes. The statute prescribes, among other things, that steamboats navigating our waters shall, on meeting, pass each other to the starboard side; that on passing each other, when going in the same direction, they shall leave a space of twenty yards between them; that they shall carry and show two lights when navigating in the night; that the engines shall be stopped while passengers are landing or being received on board, and the like; and in respect of Lake Champlain and the Hudson River, all vessels at anchor, in the night, shall show a light in their rigging twenty feet above the deck.

All these are regulations manifestly proper, and indeed necessary, for the preservation of life and property; and if they do not come within any decision, as a police power of the state, ■they clearly fall within the principle which we have endeavored to extract from the nature of the subject, and the authorities bearing upon it.

It may be argued, however, that the particular provision in ■question cannot stand, because it adds to the requirement of the act of Congress, and is thus directly in conflict with it; the latter saying that a steam vessel may navigate with one light, •while the state law says that it shall not navigate with less than two.

We answer, that the addition of a further qualification, is not in direct collision with a law prescribing the first qualification. The act of Congress does not provide that it.shall be sufficient for a steamboat navigating at night to be equipped with one light only, or that, if so equipped, she shall be at liberty to navigate in all waters, whether inland or on the coast. Licensed steamboats derive their right to navigate from state to state, not under this act of 1838, but under the various navigation acts passed by Congress. A compliance with the provisions of the acts of Congress, does not exonerate licensed vessels from observing the local laws and usages which require further equipments in particular waters for the protection of all vessels navigating those waters. The act of Congress of 1838 requires certain safeguards to be observed by steamboats; one of which is, that they shall show at night at least one light. A state, finding those safeguards insufficient, within its waters, adds .others which are necessary to preserve life and property. There is no direct conflict. The act of Congress has full scope in waters not within a state, and alone governs in inland waters as well as those, except where the police regulations of a state, operating within the state, require additional precautions. There, a steamboat carrying only one light, escapes the penalty of the act of Congress, but may be subject to pay for an injury occasioned by her omission to comply with the municipal regulations of the state.

To the extent of the implied conflict between the two laws, arising from the addition of further equipments by the state •law, it is clear to us the municipal law of the state must govern. In respect of matters touching commerce, which are plainly 'within the concurrent authority of the states, as being police regulations, it seems to us that the paramount duty of every . government to provide for the security of life, to say nothing of property, must determine the point in favor of the state laws, when they add to the congressional requirements. If this were otherwise, a system of unwise, or what is not supposable, perverse legislation by the national government, might soon depopulate our prosperous city with imported pestilence, strew our coast with the wrecks of unskilfully piloted vessels, and fill our noble Hudson with the hulks of steamboats and river craft destroyed by collisions.

The same principle that would, on this ground, overturn the statute of the state involved in this cause, would destroy all • laws regulating pilotage and quarantine, which go beyond what Congress deems proper at any time to enact on those subjects.

It was argued by the defendants’ counsel that the effect of a statute of the state was different from that of a usage of navigation. But wherein is the difference ? A usage of navigation, peculiar to the Hudson’ river, for example, has prevailed twelve years, when an act of Congress, relative to the coasting trade, prescribes a rule on -the same subject, widely different, though not directly in conflict with the usage. The latter, so far as it has any force, has it as a portion of the unwritten municipal law of the state; and if the legislation of Congress, adopted after a state statute, make void the latter so far as it adds to or differs from the congressional rule, how can the unwritten law :escape the same consequence? It seems to us that both alike -must give way, unless they can stand' as a part of the internal police of the state, the control of which always remained in the state governments.

In matters upon which Congress has-not legislated, the courts of ’the United States in this district and circuit, adopt the state •law, recognizing the statutes of the state and the established usages of navigation as valid. Since the argument of this cause, we have observed two decisions of the very learned and experienced district judge to this effect. (Judge Betts’s Decisions in Admiralty, March 11, 1851.) In one of them, Vandewater v. Westervelt, a case of collision in the East river, the state act of April 12, 1848, was applied, and the judge remarked that the district court enforced the observance of the state law in navigating state waters. The other case, Van Pelt v. Steamboat Niagara, was also one of a collision in the East river, before the act of 1848. The court made the same observation in respect to a provision of the revised statutes of this state, heretofore cited, which requires vessels meeting on opposite courses to pass each other on the starboard side; and on that provision, as well as the maritime law, the libellant recovered damages.

When the libel of the propeller against the Santa Claus, for the collision in question in this suit, was before the courts of the United States, the enactment of the statute of 1826, and the revised statutes, relative to two lights on steamboats navigating at night, were not discussed or mentioned, as we are authoritatively informed. Judge Betts, in his opinion, alluded to the strong evidence given to show that unless there was a head light as well as a stern light, upon the propeller, there would be no means for vessels meeting her to know what direction she was taking; and he was inclined to hold that the omission of a forward light was negligence on the part of the propeller; but the state of the pleadings prevented the claimants from taking that ground.

When the case of the Santa Claus came up on appeal in the U. S. circuit court, the answer of the claimants had been amended, and further evidence was given. Judge Nelson said he regarded the proof clear, as it was in the district court, that the two lights were important to enable a vessel to discern the course of another approaching; and because the fact that the propeller had not a bow and stern light was calculated to mislead the Santa Claus as to her course, and thus, in part, occasioned the collision, he held that the Santa Claus was not responsible in damages.

We have referred to these judgments of the district and circuit courts, as showing the uniform application of the local law, botb statutory and by usage, in matters directly affecting navigation. In tbe case of tbe Santa Claus, tbe omission to show two lights, though reposed on proof of its necessity instead of the statute of the state, was in the circuit court held decisive against the propeller, notwithstanding the act of Congress of 1838 was referred to in both courts, and was therefore considered by the respective judges. We are confident that the position of the Santa Claus in those courts would not have been weakened by a reference to the positive statute of the state, to the same effect as the practice proved to have been necessary, for the safety of vessels navigating our rivers in the night; and that the judges would have enforced the state law, if it had been brought to their notice. The practice of those courts in reference to the state laws, seems to warrant us in this conclusion, and to sanction the validity of such laws, to the extent which we have claimed for the statute bearing upon this case.

The question is one of governmental power, made difficult of solution by the nature of our state and confederated system. It should be cautiously and maturely considered, whenever it arises, both to give full effect to what is exclusive in Congress, and not to infringe upon legislation for matters within the respective states by them deemed essential for the welfare and protection of their citizens. When thus regarded, with a determination on all hands to avoid collisions between' the authority of the state and that of the general government wherever it is possible without a sacrifice of duty, cases of conflict will, we trust, be of rare occurrence. And we do not doubt that in this spirit, the state law involved in this case will be upheld in the federal courts, as well as in our own. ?

There was no error in the ruling of the judge on this subject at the trial.

A multitude of propositions were submitted to the judge at the trial, with a request that he would charge the jury conformably to them, and an exception was taken upon his omission so to instruct the jury. Some eighteen of these propositions were brought to our notice by the points made upon the argument. Those which relate to the act of Congress and the amount of damages, we notice at large. As to all the others, it suffices to say that those not left to the jury, substantially as the defendants requested, were covered by the submission of the question of negligence on the part of the plaintiffs, in the sixth and seventh paragraphs of the charge.

The question of damages remains to be considered. The item of twenty-five dollars for the barber’s loss, was no part of the injury, either to the vessel or the owners, and was wholly inadmissible. The sum of nine hundred dollars, allowed for the detention of the Santa Claus, while she was undergoing repairs, is the principal disputed claim for damages.

The statute which authorizes the proceedings adopted in this case, (Laws of 1831, ch. 318, page 421,) provides that whenever a vessel, in a collision occasioned through the negligence or wil■ful misconduct of those navigating another vessel, shall thereby have sustained damage to the extent of fifty dollars, or upwards, the owner of the damaged vessel shall have a lien on the vessel which caused such damage, her tackle, apparel, and furniture, to the extent *of such damage. The bond which was given to discharge the warrant of attachment against the propeller, (Ibid., 2 R. S. 495, § 18,) was upon the condition that the obligors should pay the amount of such claim or demand as the plaintiffs should establish to have been subsisting liens upon the propeller, at the time of exhibiting the same to the officer who issued the warrant. The recovery must therefore be confined to the lien which the plaintiffs had upon the propeller, and that lien, by the literal terms of the statute giving the remedy, is the extent of the damage sustained by the plaintiffs’ steamboat, and not the extent of the injury sustained by the plaintiffs, the owners of the boat.

In the case of Finch v. Brown, 13 Wend. 601, this point came before the late supreme court, soon after the passage of the . act of 1831. The court held that in a suit on a bond, given precisely as this bond was given, the measure of damages was the actual damage to the vessel injured — that is, the amount necessary to repair and put her in as good condition as when the accident happened; and that the plaintiff could not recover for the loss of earnings, or his other like damages, consequent upon the collision. The court said that the owner must look for these in an action on the case, as he might have done before the statute. A new trial was granted in that case, solely because the court was satisfied, from the amount of the verdict, that the jury gave damages for the loss of earnings, or other injury to the owner, in addition to the actual damage to the vessel. It is therefore a direct authority upon the question before us, and is decisive against the claim for the plaintiffs’ loss by the detention of their steamboat.

The other charges allowed by the jury, of which the defendants complain, were properly allowed as damages to the steamboat. ■ Thus, the charges for towing her from the place of the accident to New York, and' thence to the dry dock, were a necessary expense towards repairing the injuries she had sustained. So of the wharfage while the repairs were made. As to the charge marked “steward’s bill,” in the statement on which the jury noted their allowances, it appears in the evidence as “ furniture of-room,” and testified to by the captain as being among the repairs made to the Santa Claus.

The allowance of interest was also objected to. As to this, the jury are always at liberty to allow interest, in cases of this kind. In actions of assumpsit for not delivering goods on a bill of lading, or charter-party, interest is allowable, if there were any wrongful or improper conduct; and it is allowed on an unliquidated debt, payable at a fixed time, as upon rent payable in services and grain. (Van Rensselaer v. Jewett, 2 Comst. 135.) The amount of the plaintiffs’ lien upon the propeller, though not liquidated, was due and payable when the bond was executed; and we have no doubt they are entitled to recover interest upon dt from that date.

The verdict must be reduced according to the views above stated, pursuant to the reservation in the case, and the motion for a new trial is thereupon denied.

Judgment for the plaintiffs, for $2036.55, and interest from the date of the bond, June 9th, 1816.

Paine, J.,

dissented from so much of the opinion of the court as related to the validity of the statute of the state of New York, requiring steamboats navigating at night to show two lights, in its application to vessels enrolled and licensed under the act of Congress.


source: Caselaw Access Project

author: Mason, J.

license: Public Domain

text:
    Tillotson v. Boyd and others.
    The assignee of a lessee, or the grantee of an estate, is not liable for breaches of covenants running with the land, which were committed by those who have preceded him in the enjoyment of the estate.
    Where land is conveyed expressly subject to a mortgage thereon, and it is apparent that the consideration expressed in the deed was the estimated value of the premises over and above the incumbrances; those circumstances furnish no evidence of an agreement by the purchaser to become personally bound for the payment of the mortgage.
    The omission to insert in the deed a covenant that the grantee will assume or pay the mortgage, is strong evidence that the parties did not intend he should be liable.
    (Before Ddiír, Mason, and Campbell, J. J.)
    March 5, 6 ;
    April 19, 1851.
    This was a bill, in tbe nature of a supplemental bill, filed in tbe court of cbancery in May, 1847, by Robert Tillotson against John J. Boyd, tbe City of New York, James Boyd, and Charles S. Benson. Tbe two first-named defendants answered tbe bill, a replication was filed to Boyd’s answer, and tbe cause was transferred to tbis court, where it was beard on tbe pleadings and proofs.
    Tbe facts appearing were these. On the 13th September, 1836, tbe plaintiff, being then tbe owner of tbe premises No. 34, Bond-street, in tbe city of New York, offered tbe same for sale at public auction, and James Boyd, Jun., became tbe purchaser at $27,100. It was publicly announced by tbe auctioneer, that tbe property was sold subject to a bond and mortgage, executed by tbe plaintiff to the Franklin Fire Insurance Company for $13,000, and that the amount of the mortgage debt should be deducted from the purchase money, and its payment assumed by the purchaser. On the 26th September, 1836, the plaintiff executed to James Boyd, Jun., a conveyance of the property. The deed stated the conveyance to be “subject to a certain indenture of mortgage thereon executed by the said party of the first part, to the Franklin Fire Insurance Company, bearing date the second day of November, in the year of our Lord one thousand eight hundred and thirty-five, to secure the payment of the principal sum of thirteen thousand dollars, with the interest due and to grow due thereon, which said mortgage the party of the second part, his heirs or assigns is to pay off and discharge, the principal and interest now' due thereon having been deducted from the consideration money herein above expressed.”
    On the 8th of April, 1843, James Boyd, Jun., and wife, executed to John J. Boyd, a conveyance of the following property : a store and lot No. 21 South-street, subject to a mortgage for $20,000; house and lot No. 70 Greenwich-street, subject to a mortgage for $9000, and the above-mentioned premises, No. 34 Bond-street, subject to a mortgage of $13,000. The consideration expressed in the deed is $10,000.
    The Franklin Fire Insurance Company assigned their mortgage to the corporation of the city of New York. A bill for its foreclosure was filed on the 17th February, 1846. The master to whom it was referred to compute the amount due, on the 14th September, 1846, reported $17,661.42 to be due on the bond and mortgage. On the 3d March, 1847, thfe property was sold under the direction of the master, for $13,350, leaving $4311.42, with interest from the date of the master’s report, as the deficiency, which by the decree the plaintiff in this suit would be liable to pay. The bill in this cause was filed to compel the corporation to resort in the first instance to James Boyd and John J. Boyd, for payment of the deficiency, before enforcing their decree against the plaintiff.
    The bond and mortgage executed by the plaintiff to the Eranklin Eire Insurance Company were payable on thé second day of November, 1836.

      J. Cochran, for tbe plaintiff.
    I. John J. Boyd was the unconditional grantee of James Boyd. He took tbe property with full notice of tbe liens. Tbe recitals in tbe deeds' from Tillotson to James Boyd, and from James Boyd and wife to John J. Boyd, are evidence of tbe mortgage liens. And tbe acceptance by John J. Boyd of tbe deed from James Boyd is an assumption by him of tbe liability of James Boyd in respect to tbe property conveyed by tbat deed. (Torrey v. Bank of Orleans, 9 Paige, 649; unanimously affirmed by court of errors, 7 Hill, 260; Jumel v. Jumel, 7 Paige, 591.)
    II. Tbe deed to James Boyd recites tbat tbe amount of tbe mortgage debt bad been deducted from tbe purchase money, and tbat tbe grantee therein, bis heirs or assigns, was to pay off and discharge tbe same. John J. Boyd derived bis title through this deed, and bis acceptance of tbe deed from James Boyd was an assumption of James Boyd’s liability. (Cases above cited.)
    III. James Boyd purchased from Tillotson bis equity of redemption, and nothing more. As between them tbe justice and equity of tbe case were tbat James Boyd should pay the debt. John J. Boyd assumed tbe position of James Boyd; be acquired bis rights and assumed bis liabilities. (Ferris v. Crawford, 2 Denio, 598; 1 Sugden on Vend. 313, §§ 12, 14; 7 Ves. 337.)
    IV. John J. Boyd took tbe property as general assignee, to pay off tbe prior incumbrances and tbe debt to himself, and to pay tbe surplus, if any, to James Boyd. He bad no right to appropriate any part of tbe proceeds to tbe payment of bis own debt, until tbe prior incumbrances were paid.

      H. K Davies, for tbe city of New York.

      W. C. Bussell, for the defendant, John J. Boyd.

      I. There is no ground for the bill in this suit. There is no error in law in the decree, nor any properly supplemental matter on which to ask relief.
    II. After The Mayor, Aldermen, &c., have expressly waived any personal claim against the defendant, John J. Boyd, and after he, under that assurance, has permitted the mortgaged premises to be sold away from him, it is too late to ask that they should be directed to proceed against him personally.
    III. The covenant of the grantee in the deed from Tillotson to James Boyd, cannot bind assigns, except with their consent, express or implied. This might have been, by accepting the estate, or the title to the estate, with a knowledge of the. covenant.
    IV. The defendant, John J. Boyd, did not accept the estate, for it is in proof that he never enjoyed it to the extent of one., cent, nor its possession for one instant.
    V. He did not accept the title. The only proof that he did so is his possession of the indenture, which conveyed this. property among others. His possession of the indenture was necessary to his possession of the other property, and cannot be construed as implying consent to James' Boyd’s covenants in regard to this particular piece.
    VI. The manner in which the mortgage to the Eranklin Insurance Company is referred to in the deed from James Boyd to John J. Boyd, negatives the idea of his assumption of the ] liability. The rule as to the acceptance of title deeds does noV apply to a mortgage.
   Bv the Court.

Mason, J.

The plaintiff; upon the hearing of this cause, waived any claim to relief under that part of. the prayer of his bill which sought to modify and amend the decree in the original foreclosure suit, and also to that part which prayed that the plaintiff might be subrogated to the right of The Mayor, &e., against the defendants, Boyd. It was only in one of these aspects of the case that The Mayor, Aider-men, &e., were necessary or proper parties. And the bill,. therefore, as to them, must be dismissed with costs.

The bill, then, is to be viewed as an original bill against James Boyd and John J. Boyd, and the question argued before us was, whether by virtue of the covenant on the part of James Boyd, contained in the conveyance to him by the plaintiff, and of the subsequent conveyance by James Boyd to John J. Boyd, the latter was personally liable to the payment of the mortgage mentioned in the pleadings. The covenant of James Boyd with the plaintiff was, that he, his heirs or assigns should pay the principal, and the interest then due, or to grow due, on the mortgage in question. The deed from James Boyd to John J. Boyd merely conveyed the same premises to him subject to the mortgage, without any covenant on his part, and the position contended for by the counsel for the plaintiff was, that in as much as James Boyd’s covenant was made for himself, his heirs or assigns, John J. Boyd, as his grantee, was bound by it equally with James Boyd; in other words, that the covenant ran with the land, and that the plaintiff had the same rights against John J. Boyd that he had against James Boyd himself.

In the examination of this question, the dates of the several instruments are all important. The mortgage, it appears by the bill, was executed by the plaintiff on or about the 2d of November, 1835, and the money secured by it was payable on the 2d of November, 1836. The conveyance by the plaintiff to James Boyd, in which the latter entered into the covenant above mentioned, for himself, his heirs or assigns, was given and bears date on the 19th of September, 1836. The conveyance by James Boyd to John J. Boyd of the premises subject to the mortgage, bears date the 8th of April, 1843. Thus, it will be perceived, that at the time when James Boyd entered into the covenant, the mortgage of the plaintiff had not become due, but at the time of the conveyance to John J. Boyd it had been due for several years. No time was specified in the covenant for the payment of the mortgage. If it had been then due, as the covenant to pay was absolute and unconditional, the money could have been demanded immediately; but as the day of payment designated in the mortgage itself had not arrived when the covenant was given, the covenant must be construed a covenant to pay tbe money when that day should arrive. Tbe object and meaning of tbe covenant were to relieve tbe plaintiff from tbe payment, and as tbe mortgage was payable on, and not on or before, the 2d of November, tbis object could not probably have been attained before that time, neither could tbe plaintiff bave demanded it sooner; but bis right of action under tbe covenant accrued, if ever,, as soon as tbe mortgage became due, that is, on tbe 2d of November, 1836, and tbe plaintiff might have commenced a suit on the covenant tbe next day as well as now. If tbis be so, and we think thfe position cannot be disputed, tbe covenant was broken by nonpayment of tbe mortgage on tbe 2d of November, 1836, and being broken, its obligations did not devolve on a subsequent grantee.

Tbe principle is a familiar one in tbe law. As long ago as in tbe time of Queen Elizabeth, it was held that a purchaser of land -could not sue tbe person who bad conveyed to bis immediate grantor oñ a covenant which was broken before tbe plaintiff had acquired title. (Lewis v. Ridge, Cro. Eliz. 863.) In Grescot v. Green, (1 Salk. 199,) tbe same point was again ruled. A lessee bad in that case covenanted for him and bis assigns to furnish a bouse at such a time, and after tbe time bad expired be assigned over tbe premises, tbe bouse not having been finished according to tbe covenant. Tbe action was brought against tbe assignee of the lessee. Holt, Chief Justice, said, “ Tbis covenant shall not bind the- assignee, because it was broken before tbe assignment, — oliter,” be adds, “if broken thereafter, as if tbe lessee bad assigned before tbe time expired.”. And again, in St. Saviour’s Churchwardens v. Smith, (3 Burrow, 1271,) which was an action by tbe lessees against tbe assignee of tbe lessee, on a covenant to pull down certain bouses that stood on tbe demised premises and build new ones thereon- within seven years. The defendant pleaded that tbe estate did not come to him by assignment until after tbe expiration of tbe seven years, to which tbe plaintiffs demurred. Lord Mansfield said, “ Tbe single question was whether an assignee is liable for a breach which be never committed, and it is certain that be is not. Tbis breach was committed before his time, and this covenant does not run with the land.” These cases establish, we think, the position that an assignee of a lessee or the grantee of an estate, is not liable for breaches of covenants running with the land, which were committed by those who have preceded him in the enjoyment of the estate, but only for his own violations of those covenants, and this we conceive to be not only the well-established but the only reasonable construction of the statute enabling grantees of reversions to take advantage of the conditions to be performed by lessees, &c. (1 R. L. 863 ; 1 R. S. 747, §§ 23, 24.)

It was on this principle, and on the authority mainly of Lewis v Ridge, that the supreme court of this state in Greenly v. Wilcocks, (2 John. R. 1,) held that an action would not lie in favor of the assignee of a grantee against the grantor, for breach of the covenant, of seisin, because that covenant, if-broken at all, is broken as soon as it is made, and cannot be assigned. Indeed, this has become an elementary principle.

On the supposition then that this covenant of James Boyd with the plaintiff, was one of that class of covenants which run with the land, about which it is not necessary to express an opinion, it is not binding on the defendant John J. Boyd, because it had been broken long before the property was conveyed to him. Such we have seen is the rule at law, and such also must be the rule in equity.

If the defendant John J. Boyd is not liable on the covenant of James Boyd, and as his grantee, he is not liable at all. It is not pretended that he entered into any express contract to pay the mortgage debt, and a contract cannot, in our judgment, be-implied on the face of the papers. The deed from James Boyd to him, by which the property was conveyed, passed also the title to two other pieces of property, both of them mortgaged. They were conveyed expressly subject to these mortgages, and the consideration mentioned in the deed was only $10,000. In the absence of any proof on the subject, it might reasonably be inferred that the sum of $10,000 was the estimated value of the premises over and above the incumbrances; but- surely that circumstance furnishes no evidence of an agreement by the purchaser to become personally bound for the payment of the mortgage. On the contrary, the fact that the mortgagor executes a conveyance without exacting a covenant to that effect from the grantee, is evidence, and strong evidence, that it was not intended by the parties that the grantee should be thus liable. A purchaser may be willing to take premises subject to an incumbrance, and incur the risk of losing the land and the money he pays to the vendor beyond the amount of the incumbrance, and yet be very unwilling to become personally bound for any deficiency of the premises to pay off the incumbrance; and on uhe other hand, a vendor who is personally bound for the payment of the incumbrance may deem the premises such an abundant security as to be indifferent about taking from his grantee a covenant for its payment. If the parties have not themselves made any contract on the subject, I am not aware of any power in the. court to make one for them, or to subject either of them to liabilities which they did not, and for aught that appears, which they declined to assume.

There were other points argued at the hearing in opposition to this claim, which it is not necessary to notice. The bill must be dismissed with costs, as to the parties who appeared and contested the plaintiff’s claim.