author: By the Court—-Woodruff, J.

text:
    John Kinsman, Plaintiff and Respondent, v. The New York Mutual Insurance Company, Defendants and Appellants.
    1. Although a plaintiff establishes by his evidence a prima facie, cause of action, so that when he rests his case a refusal to order a nonsuit is proper, yet if the evidence on the part of the defendant is very greatly preponderating, and especially where that preponderance arises from facts and circumstances not controverted, the Court will set aside a verdict for the plaintiff as against evidence.
    2. The fact that a vessel, after very slight repairs, does actually perform many voyages, and with repairs greatly less than would justify her salo and an abandonment to an insurer, does actually continue in service for many years, being pronounced seaworthy and capable of performing voyages to any part of the world, greatly outweighs the opinion of her master, and surveyors, making an examination by his request, that repairs are necessary," exceeding half her value; and this is especially true when, after such sale and abandonment, the cause of the leakage, ascribed by such surveyors to injury by perils of the sea, is found to be two auger holes bored in her side which may be stopped at a trifling expense.
    3 Where freight is insured and the ship is disabled after her service is in part performed, it is the duty of the master to earn freight if he can, by forwarding the cargo by another vessel, and where, in such case, he voluntarily gave up the cargo to its owners, and they sent it on by another vessel, a finding that there was no evidence that he could have earned freight, (in the absence of any proof of the cost of the shipment by such other vessel,) cannot be sustained. The service having been in part performed, it is to be presumed that freight is earned, unless the plaintiff proves that the cost of forwarding exceeded the freight payable by the owner.
    4. Where the service has been in part performed, and the owner voluntarily accepts the goods, freight pro rata Uineris is earned, and may be demanded.
    5. Where a charter-party stipulated on the part of the charterers, that the master should be supplied by them with a sum not exceeding one-third of the freight “free of interest and commission, which is to be in part payment of the freight at the exchange of twelve per cent premium, together with the cost of insurance on such advance,” and by further provisions any other advances they thought fit to make on the credit of the freight should, with premium, interest, commission and insurance, be considered in part payment of freight. Advances made under the first stipulation, where the voyage is in part performed, are at the risk of the charterers, voluntarily placed by them at the hazard of the voyage, and are to be deemed freight earned, and not liable to be refunded, though the vessel is afterwards lost.
    (Before Bosworth, Oh. J., and Woodruff and Moncrief, J. J.)
    Heard, June 17th;
    decided, December 10th, 1859.

      Action to recover for a total loss upon two policies of insurance, one for §4,000 on the ship, and one for $4,000 on the freight of the “ Ozark."
    In September, 1852, the ship Ozark, of three hundred and ninety-eight tons, being in New York, bound for San Francisco, a charter-party was entered into by her master with Barreda & Brother, as agents for the Peruvian Government, that she should go to Callao from San Francisco, and being tight, strong, and every way fitted for the voyage, should proceed to the Chincha Islands and take in a full cargo of guano, return for her final clearance to Callao, and proceed to Hampton Roads to receive orders from Barreda & Brother, to discharge in any safe port not north of Cape Ann, nor south of Hampton Roads; freight to be paid $15 per ton; “the master to be supplied at Callao with a sum not exceeding one-third of the freight which was to be in part payment of freight, at the exchange of twelve per cent premium, together with the cost of insurance on such advance, and to be free of interest and commission;” * * * “ and
    should the charterers think fit to advance any further sum on the credit of the freight for repairs, stores and disbursements, such sums, with premium, interest, commission and insurance, to be considered in part payment of freight,” another third to be paid in cash on arrival at the port of discharge, and the balance to be paid on the delivery of the cargo.
    The ship sailed from New York in December, 1852, and arrived at San Francisco in November, 1853.
    In November, 1853, the plaintiff insured at the office of the defendants, $4,000 on the vessel, valued at $16,000, and $4,000 on her freight, valued at $9,000, at and from San Francisco to Chincha Islands, and at and from thence to an Atlantic port in the United States, touching at Hampton Roads for orders. Loss, if any, payable to him or order.
    In December, 1853, she sailed from San Francisco for Callao, where she arrived in February, 1854, and proceeded from thence in the same month to the Chincha Islands, and there took in a cargo of guano, and returned tó Callao in April,' 1854.
    In pursuance of the stipulation in the charter-party, the charterers (Barreda & Brother) advanced to the Captain upwards of $4,000 in part payment of freight.

      On the 26th April, 1854, she sailed from Callao with her cargo, bound for Hampton Eoads: on the 9th of May following she had returned and anchored again in Callao, and the Captain’s protest was noted, stating “that, having sprung a leak at sea, he put back for the benefit of all concerned.”
    On the 10th May a survey was had by two shipmasters and a shipwright, and they reported that they found the ship in a sinking condition, and advised that the cargo be discharged.
    On the 5th of June a second survey was had bytwo ship-masters, (one of whom made the first survey,) and the same shipwright, and they recommended extensive repairs. The same shipwright then estimated the cost of the repairs, which were so recommended, to be $15,130.50.
    The Captain stated in his testimony that he had no funds with which to make the repairs; that the owners had no agents in Callao; that he went to several persons to borrow money to make the repairs, and could get none; that he advertised for funds on bottomry, and offered as security the ship’s cargo and freight, and could not obtain funds in any way.
    The Captain thereupon gave up a portion of the cargo of guano to Barreda & Brother, and they sent it on by the ship Parana.
    And the Captain then advertised the ship for sale at auction, and, as he testified, the surveyors and the United States Consul concurred in advising the sale. On the 20th of June she was sold at auction to Captain James Pederson for the sum of $8,100 —producing, after deducting the expenses of sale, the net sum of $7,579.96.'
    Barreda & Brother then demanded of the Captain the amount of their advances above mentioned, “on the ground that the voyage was not completedand the Captain repaid it to them out of the proceeds of the sale of the ship.
    On the 26th of July the plaintiff, having been advised of the sale, and claiming that the ship had sustained so great damage on her attempted passage home that she could not be repaired without an expenditure not justified'by her value, abandoned both vessel and freight to the underwriters.
    The action was tried on the 3d day of June, 1857, before Mr. Justice Slosson and a jury, and on the trial the defendants moved for a nonsuit, which was denied, and the defendants excepted.

      A verdict was rendered for the plaintiff for the whole sum insured on both policies, (4 e., on vessel and on freight,) as for a total loss.
    And, by direction of the Presiding Justice, the jury also found specially upon numerous questions submitted to them. The findings material to state here were: That the vessel was' seaworthy when she left San Francisco, and also when she left Callao with her cargo; that her subsequent leakage was caused by a peril of the sea of an extraordinary character; that the necessary expense of repairing her at Callao would have been $13,000, and the expense of raising the funds twenty per cent, or $2,600; that there was a necessity to sell the vessel, arising from the inability of the Captain to raise funds at Callao for the repairs; that her detention at Callao, while waiting for funds from home to make the repairs, would have materially injured both vessel and cargo; that one-half the cargo was so damaged as to be unfit for reshipment ; that, from any evidence submitted to the jury, the Captain could not have sent the residue of the cargo to the United States by any vessel, the use of which he could procure at Callao; and that no freight was earned before the sale of the vessel.
    The opinion of the Court recites a considerable portion of the evidence, in connection with the reasons given for regarding the verdict as against evidence, and it also mentions requests for special instructions, and portions of the charge; and it is not necessary here to repeat them. Exceptions were taken on the trial which raise the questions of law considered by the Court; and the other exceptions to the admissibility of evidence, &c., which were taken on the trial, were waived on the argument.
    On the coming in of the verdict, the Judge directed that the exceptions be heard in the first instance at the General Term, and that the judgment be in the meantime suspended, but with leave also to the defendants to first move at Special Term for a new trial on a case to be made. The motion for a new trial was made and denied, and the defendants appealed.
    That appeal, and the exceptions so ordered to be heard at Special Term, were thereupon brought on together and argued.

      J. M. Van Cott, for plaintiff.
    I. The facts specially found are according to the evidence, and the loss of the ship was, constructively, total.

      1. The damage was caused by a peril of the sea.
    2. The cost of repairs, (deducting one-third new for old,) greatly exceeded half her value.
    8. There was an absolute inability to procure funds to make the repairs.
    4. The sale of the ship was justified by its necessity.
    5. No freight was, or could be, earned. The advance by the charterers on account of freight was, therefore, subject to repayment.
    The loss of freight was, therefore, actually total. (Am. Ins. Co. v. Center, 4 Wend., 45; Ogden v. The Gen. Mut. Ins. Co., 2 Duer, 204; Ruckman v. Merch. Louisville Ins. Co., 5 id., 342.)
    II. The refusal to nonsuit, and the submission of the questions, whether the ship was seaworthy and was damaged by a peril of the sea, were not erroneous.
    All damages at sea are to be deemed caused by “perils of the seas,” when not appearing to result from the inherent weakness of the ship. (Sherwood v. Ruggles, 2 Sandf. S. C. R., 55; Bullard v. The Roger Williams Ins. Co., 1 Curtis C. C. R., 148,155; Potter v. Suffolk Ins. Co., 2 Sumn., 197; Patrick v. Hallett, 1 J. R., 241; Talcot v. Com. Ins. Co., 2 id., 129.)
    A loss by perils of the sea was abundantly proved

      B. S. Emmet, for defendants, (passing over some points, argued, among others, the following:)
    I. The findings of the jury upon the first question, viz., whether the vessel was seaworthy when she left San Francisco; upon the second question, viz., whether she was seaworthy when she left Callao; and upon the fourth question, viz., whether the subsequent leakage was caused by a peril of the sea of an extraordinary character; are against law and evidence.
    1. If, the ship being unseaworthy at Callao, the master neglected to have her repaired, and the subsequent damage was the direct consequence of such unseaworthiness, the warranty was not satisfied, and the underwriters are discharged. (Phillips on Ins., §§ 700, 731; Arnould on Ins., §§ 669, 677; Kent Com., 5th ed., §288; Am. Ins. Co. v. Ogden, 20 Wend., 287; Copeland v. N. E. Ins. Co., 2 Metc., 432; Starbuck v. N. E. Ins. Co., 19 Pick., 198; Heyward v. Ins. Co., 1 Sumn., 218; 2 Metc., 432; 4 Mason, 441; Warren v. U. S. Ins. Co., 2 Johns. Ca., 231.)

      2. The ship was unseaworthy when she left Callao, and the damage complained of was the direct consequence of such unseaworthiness.

      (a.) She became leaky within two days after sailing without having encountered any peril other than strong breezes and cloudy weather, and the wind at no time prevented her carrying all sail. The presumption is, therefore, that she was unseaworthy. (Watson v. Clerk, 1 Dow., 344; Packer v. Polls, 3 id., 23; Douglass v. Scougal, 4 id., 269; 1 Arnould, 689; Phil., 725; Park., 342, 469; Talcot v. Com. Ins. Co., 2 J. R., 124; Paddock v. Franklin Ins. Co., 11 Pick., 227.)

      (b.) The auger-holes subsequently discovered in her side were a sufficient cause for her leakiness, and rendered her unseaworthy.
    II. The finding of the jury, that the necessary repairs would have cost $13,000, is against evidence.
    1. If all the repairs mentioned in the estimate were necessary to make the ship navigable, it is conclusive evidence, in view of the slight perils to which she was exposed, that she was unseaworthy when she left Callao.
    2. The ship was actually repaired for less than $1,000, so as to render her navigable and seaworthy, and in better condition for all purposes than she was in before sailing from Callao.
    III. The inability of the master to procure funds for repairs did not justify the sale of the vessel, as found by the jury in answer to the tenth question.
    1. Such inability arose from the ¡neglect -of the owner to provide the master with the means of raising funds to meet such exigency. Callao was a port of destination contemplated by the policy, and the owner was bound to make the necessaryprovisions for funds at that port. (Am. Ins. Co. v. Ogden, 20 Wend., 287; Ruckman v. Merch. Louisville Ins. Co., 5 Duer, 342.)
    2. For anything that appears from ¡the evidence, the master might have communicated with the owner at home without the vessel or cargo suffering injury from detention. (S. C.)

    IV. The finding of the jury upon the nineteenth question, viz., that no freight was earned, is against evidence. The vessel was chartered to Barreda Bros. By the charter-party, part of the freight was payable in advance, and was paid. After the vessel returned to Callao, in a damaged condition, the advance payment was voluntarily repaid to the charterers.
    1. It is well settled that, where freight is paid in advance, in pursuance of the contract of affreightment, and the vessel is lost by a peril of the sea before the whole freight is earned, the payment in advance cannot be recovered back, unless the contract expressly provides for its repayment. (Abb. on Ship., Sto. & Perk. Notes, 528; De Silvale v. Kendall, 4 M. & S., 37; Manfield v. Maitland, 4 Barn. & Ald., 585; Watson v. Duykink, 3 John., 335.)
    That the payment here was to be by way of freight is expressly provided in the charter-party, and is proved by the fact that the money so paid was to be free of interest and commission, as distinguished from money advanced by way of loan. The charter-party does provide for other payments which were to be made by way of loan, and to bear interest and commission. (De Silvale v. Kendall, (supra.)
    The charter-party does not provide for repayment in case of loss of vessel. (S. C., opinion of Bayley, J.)
    2. If freight was not earned, it was because the vessel was unseaworthy: the finding of the jury can only be supported on that ground.
    3. It was the duty of the master to have procured another vessel at Callao to carry on the cargo, and the burden of proving that a vessel could not be obtained is upon the owner. (Schieffelin v. N. Y. Ins. Co., 9 John., 21.)
    Y. In any aspect of the case, assuming the vessel to have been seaworthy, the plaintiff was only entitled to a verdict for a partial loss for such damage as was proved to be the immediate consequence of the perils insured against. The vessel might have been repaired, so as to enable her to transport her cargo.The plaintiff was abound so to repair her, orto procure another vessel: having neglected to do so, the defendants are not liable for the loss of any p’art of the freight.
   By the Court—-Woodruff, J.

On the trial of this action various exceptions were taken by the defendants to the rulings of the Court, admitting and rejecting evidence, but on the hearing before us the defendants’ counsel disavowed any intention to insist upon any of those exceptions.

And although he placed upon his printed points the suggestion that the Judge erred in charging the jury that “the fact that the vessel sprung a leak so soon after leaving the harbor of Callao, did not raise a presumption that she was unseaworthy when she left,” yet as no exception was taken on the trial to this part of the charge, this point he also passed over on the argument.

Indeed, the express finding that the leakage which rendered it necessary for the vessel to return to Callao was caused by a peril of the sea of an extraordinary character, and the evidence tending to prove that fact, if they do not justify the charge in this particular, probably render it of no importance.

If it had appeared clearly that after the vessel left Callao she encountered no storm nor other extraordinary peril which could be reasonably deemed sufficient to cause the leak, then there would have been a presumption that the vessel was unseaworthy when she sailed. (Van Valkenburgh v. The Astor Mut. Ins. Co., 1 Bosw., 62.)

The proposition as stated in the charge was obviously given in view of the testimony of the Captain, that he encountered heavy seas, very hard, stiff breezes for two or three days, and wind heavy enough to carry away her main top-gallant sails.

As no qualification of the proposition was asked by the defendants’ counsel, and no exception was taken thereto, we do not think it necessary to consider it further.

The arguments addressed to us were that the findings of the jury are against the law and the evidence, both as to the cause of the loss and its extent.

• The vessel left Callao on the 26th of April, 1855, on her voyage around Cape Horn, having a cargo of guano on board. She returned to Callao on the 9th of May following, and (as alleged by the plaintiff) in a sinking condition.

1. The first great question was whether she was seaworthy when she sailed from Callao. That question was fairly submitted to the jury upon the evidence, to which there was no contradiction in terms, and the jury found that she was seaworthy.

The testimony of the Captain to the fact of seaworthiness, and to the perils which he encountered, made out, we think, s prima facie case for the plaintiff both in respect to the seaworthiness of the vessel at the time of her departure, and in respect to actual injury by the causes already above mentioned.

We do not think that a very strong or convincing case was made out in these respects, but it was quite sufficient to render it proper to submit these questions to the jury.

So in regard to the other important questions; what was the extent of the damage, and what would it have cost to repair the vessel ?

Under the direction of the United States Consul, two successive surveys were had by shipmasters and a shipwright. These 'surveys and the estimate made by the shipwright of the cost of repairing the vessel were not only read in evidence by the plaintiff without objection from the defendant, but the Captain by his testimony on the trial affirmed their correctness.

If these surveys and estimate were correct in fact, then the finding of the jury that the vessel was so injured that the cost of repairs after deducting “ one-third new for old ” would have exceeded half her value, was also correct. We cannot say that these proofs in connection with the protest (read in like manner on the trial) did not prima facie establish the facts so found.

So that upon the plaintiff’s case as thus prima facie established, if there was no contradiction there could be no reasonable claim that the verdict was not warranted by the proofs.

And it is proper to observe here that upon the findings of the jury on these points it became entirely unnecessary to consider the point raised on the argument, whether the jury were warranted in finding the amount which it would cost to unload and reload the cargo, for if the loss was constructively total that finding is wholly immaterial.

So also it becomes unnecessary to consider the question also discussed in the defendants’ points whether the inability of the master to procure funds for repairs justified the sale of the vessel. It being found that the cost of repairs, after the proper deduction, would have exceeded a moiety of her value, the loss was constructively total, and if those findings can be sustained her abandonment was justified, whether funds could or could not have been procured with which to make the repairs.

The question therefore recurs, whether we can say that the findings of the jury that the vessel was seaworthy when she sailed from Callao, and that she was injured by extraordinary perils to an extent amounting to a constructive total loss are against evidence.

As already said, these facts were prima facie proved, and although we cannot say that the plaintiff’s proofs are quite satisfactory to our own minds, still the jury might conscientiously and sincerely credit the evidence, and we incline to the opinion that in the absence of contradiction they were bound to give it credit.

The Court, therefore, properly refused to grant the motion for a nonsuit.

We are, however, constrained to say that not only is very great doubt of the correctness of the verdict created by the evidence given on the part of the defendants, but the preponderance of the evidence is greatly against the verdict.

James Pederson was examined by the defendants. He was in no wise impeached, and his testimony seems to us, (by establishing facts which clearly outweigh the opinion of the plaintiff’s witnesses,) to prove that the ship had not sustained any such damage by the perils of the sea as is claimed by the plaintiff, and that no such amount of repairs was necessary to make the ship in all respects seaworthy and capable of taking her cargo of guano to the port of destination.

According to his testimony, he was in Callao about the 1st of June, 1854, three weeks before the ship was sold. His business there was the purchase of a vessel. He examined the ship a number of times before the sale, with a view to becoming the purchaser. Sometimes he was on board alone, and sometimes he took with him friends. His object was to ascertain the condition of the vessel, and he made the examination “ as full as could be made by anybody.” He found her in such condition that he determined to buy her, and he did purchase her at the sale for the sum of $8,100.

After his purchase he again examined her, assisted by two ship carpenters, (one of them being the same who had united in the previous survey above referred to, Mr. A. J. Shute.) The result of Pederson’s repeated examinations, as stated by him, are in direct and irreconcilable conflict with the testimony of the plaintiff’s captain and the surveys he caused to be made, as to the extent of the injuries to the ship and the necessity of repairs. He then had the ship repaired, and had everything done which he considered necessary to make her seaworthy, and the whole expense was only $958.06; and it is ,to be observed that the witness giving this testimony is a ship master and ship owner, who has commanded a vessel for twenty-one years and has been a mariner for thirty-four years, and he cannot be conceived to have had any interest or motive to testify untruly in this matter. His conduct in actually making the purchase, and his subsequent use of the vessel confirm his testimony.

Having completed these repairs, he also caused a survey to be made, by requesting the agents of Lloyd’s to have it done, and. those agents appointed three English ship captains, then in port, to make the survey, which they did on the 7th of July, and they declared that she made no water while they were on board, (though she had about 400 tons of guatio still remaining on board ;) that she appeared a sound, well fastened, efficient ship, newly caulked, well found in boats and sails, and every material of all kinds; and they add that they think her capable of taking a cargo of guano to any part of the world.

There is nothing in the case to justify a belief that this survey was not made and certified with impartiality and truthfulness.

Pedersort then took the command of the vessel, she still having a part of her original cargo of guano on board. He took in about 250 tons more, and sailed to Costa Rica, thence to Paita in Peru; there filled up the ship with cotton on the top of the guano, and sailed thence to San Bias in Mexico, where he landed the cotton in perfect order, and on the 17th of December, 1854, sailed thence for China with the guano, reached Hong Kong March'3d, 1855, and thence to Whampoa, where he landed the guano, and although at least 150 tons of the guano was the same which was on board when the ship is said by the plaintiff’s witness to have leaked so that there was ten feet of water in her pumps, and the same which he testified was so wet that it was good for nothing when he gave up the other portion to the .charterers, Barreda & Brothers; yet Pederson testifies that the guano was delivered at Whampoa in good order, with the exception of 25 or 30 tons, which was partially damaged. At Whampoa he had the vessel put on the dry dock, and made a thorough examination; had her stripped of all her copper, caulked and recoppered, and afterwards the seams and the whole sides of the vessel, from the copper to the covering board, scraped white, and found the vessel sound, with the exception of one plank that was a little injured by worms. She was repaired under the inspection of Lloyd’s agents, and his expenses, including some new sails, were about $4,500. With a cargo of 500 tons and 200 China-men he returned to California and delivered his cargo in good order. The vessel has been in good condition ever since, and has been in service ever since; and on the voyages so testified to, no unusual leakage occurred, except perhaps some which was caused by a small auger hole, which will be presently mentioned.

This history is wholly inconsistent with the plaintiff's case, incredible if that case is proved, and seems to require some explanation of the error into which the surveyors, appointed by the United States Consul before the sale, must have fallen if the testimony of Captain Pederson is believed.

That explanation is found in the fact that there were two auger holes bored through the sides of the ship, one of a diameter of one and one-half inches, and the other of one-half or three-quarters of an inch, (the latter partially stopped at one time with paint or putty, and the former partially stopped with a slack plug,) and having the appearance of having been bored from the inside of the ship, and so near the water line that when the ship was loaded they were some four feet under water.

The first of these holes Captain Pederson discovered before he purchased the ship, and it being repaired, no considerable leakage occurred afterwards, except from the small hole, which he found on his voyage to China or after he arrived.

The existence of these holes, together with another which had been bored near one of them, but not through the side, was very strong evidence that at some time they were voluntarily made in order to admit water, and probably with a view to sink the ship.

No evidence was given showing when these holes were made. If they were fraudulently made after the ship sailed from Callao for the United States, that might not have defeated the Policy which covered barratry of the master and mariners; and if made before, it may not have established such negligence in not discovering and repairing the injury as would defeat the Policy. But the testimony does tend very strongly to show that the leakage on that voyage did not arise from the causes assigned, and that the repairs necessary to make the ship seaworthy were not at all such as were estimated before the sale.

The existence of these holes seems to us, in connection with Pederson’s uncontradicted and unimpeached testimony, to explain and in a great degree remove from the surveys made by the surveyors appointed at the instance of the captain, the force and effect which might otherwise be claimed for them. Those surveyors finding that the water had actually entered the ship, and not discovering these holes, could not easily avoid the conclusion that the leakage was caused by the straining of the vessel and opening of her seams, which of course they imputed to the action of the wind and waves. It is not, therefore, any imputation upon their integrity to say that they were mistaken. And the like suggestions may explain the testimony of the captain, in the absence of evidence that he acted fraudulently.

The facts stand prominently before us that the ship was repaired for comparatively a small sum; that she was pronounced seaworthy for the carriage of guano to any part of the world; that she made three voyages with nearly as much guano on board as she had when she put back to Callao ; and she is still in good condition, and all repairs since those voyages, added to those made at Callao, have cost far less than the amount required to justify her abandonment. True, she has not been around Cape Horn; but it is also true that, at the time she put back to Callao, she had only been a few days on her voyage in that direction, and the evidence of violence from wind or waves is very slight.

We think that we ought not to be, and consistently with just regard to the rights of the parties cannot be, satisfied with the verdict in this respect.

2. In relation to the freight, however, the verdict is even less satisfactory, for notwithstanding it be found that there was a constructive total loss of the ship, it was the duty of the master to earn freight if he could by forwarding the cargo by another vessel. (American Ins. Co. v. Center, 4 Wend., 45; Schieffelin v. New York Ins. Co., 9 J. R., 21.)

His service had been in part performed: the vessel had been from San Francisco to the Islands, and had taken her cargo of guano on board at the expense of the ship owner, and returned to Callao for her final clearance. This service cannot be regarded as entirely without value if a vessel could there be found to take the cargo forward. There the Captain voluntarily gave up what he deemed the dry part of the cargo to the charterers, (Barreda & Brother,) and they sent it on by the Parana.

These facts are uncontradicted; 'they are proved by the plaintiff’s witness, the Captain himself; and yet the jury have found that, “from any evidence submitted to them, the Master could not have sent that part of the cargo to the United States by any vessel, the use of which he could have procured at Callao.”

And in consequence of that finding they have omitted to answer the questions, what would have been the expense oí transhipment, and whether any freight would have been earned thereby, and whether the extra expense would have exceeded the moiety of the freight ?

We do not find in the case any evidence showing what the expense would have been, nor what it would have cost if the Captain had forwarded the guano himself.

But the finding that no vessel could be procured is in palpable conflict with the fact that a vessel was procured, and the Captain voluntarily gave up the guano to the freighters, and they sent it on.

What has already been detailed respecting the subsequent history of the residue of the cargo, and that it was in fact taken to China, and there delivered in good order, excepting from 25 to 30 tons, bears also on this same question of duty on the part of the Captain to procure another vessel and send that also.

To this is to be added that the burden of proof that no other vessel could be had, is held in Schieffelin v. New York Insurance Company to be on the plaintiff, and that to entitle himself to recover on the ground of the loss of the voyage, he must show that another vessel could not be obtained. (3 Kent Com., 210, 213 ; 2 Arn. on Ins., § 347, pp. 1139-1144; Shipton v. Thornton, 9 Ad. & El., 314.)

We cannot, it is true, say that, had the cargo been forwarded by another vessel, the loss of freight would not have exceeded a moiety thereof, or that abandonment 'within the case of the American Insurance Company v. Center, (above cited,) would not have been justified. But the verdict of the jury is palpably wrong upon the main fact, that no vessel could be procured; or if its somewhat ambiguous language be taken to import only that no evidence had been given that a vessel could be procured, then the plaintiff failed in establishing this main fact, and no means are supplied of determining whether the loss was or was not constructively total. It may be very probable that it would have cost nearly as much to send the guano by another vessel as the plaintiff would have received, but that is not proved.

Besides, when the owners of the cargo accepted the undamaged portion of the cargo at Callao, the Master might have required the payment of freight pro rata itineris, if their acceptance was voluntary; and if they took it because the Master declined to take it forward, or to send it on by another vessel, then also it was the fault of-the Master, and does not entitle the owners to say that no freight was earned as between them and the defendants. (2 Bosw., 195; 2 Duer, 204.) It cannot be that nothing was earned which would have been properly assigned by way of apportionment to the service rendered in going to the Islands and lading the guano, and bringing it to Callao. How much was so earned the Court cannot say, but the finding of the jury that no freight was earned, if it imports that this service was of no value or formed no aliquot part of the whole service-which the plaintiff was to perform for the freight stipulated, was not warranted by the evidence. As the case stands, it seems to us that only a partial loss of freight was proved, and that enough ismot shown to determine its extent or amount.

The finding of the jury that no freight was earned, is also in conflict with one of the instructions given by the' Judge at the trial upon admitted facts.

The charter-party, after providing that the vessel should go from San Francisco, in California, to the Chincha Islands, and there load at the ship’s expense—carrying any specie necessary to pay for the guano—any tools and bags for dunnage, free of freight, and deliver water required at guano ports free of charge; the crew to sew up the mouths of the sacks, and the owners of the vessel to pay all port charges, and that the vessel should return, when all this was done, to Callao for final clearance for the United States; and after, also, stipulating that the freight to be paid shall be $15 per ton, then proceeds:

“ The Master to be supplied at Callao with a sum. not exceeding one-third of the freight, free of interest and commission, which is to be in part payment of the freight, at the exchange of twelve per cent premium, together with the cost of insurance on such advance. And should the charterers or their agents think fit to advance any farther sum on the credit of the freight for repairs, stores and disbursements, such sums, with premium, interest, commission and insurance, to be considered in part payment of freight.”

In pursuance of these provisions, the Master received from the charterers over $4,000. Whether this was equal to or exceeded the one-third of the freight above firstly mentioned, we have no data by which to determine. Out of the proceeds of the sale of the vessel the Master repaid this sum, on the claim of Barreda & Brother that, as the voyage was broken up, they were entitled to have it repaid as freight not earned.

On the trial, the Judge charged that the defendants would be entitled to have deducted from the amount of loss on freight “ a ratable proportion of the value made by Barreda & Brother to the Captain, as so much freight earned by way of salvage.” This language, though not very clear, we suppose imports that the sum of $4,000 so received was to be regarded as freight earned, and that the Captain had no right to refund it, and the charterers were not entitled to have it repaid.

This ruling is in conformity with the decision in De Silvale v. Kendall, (4 M. & S., 37,) in which the provision for part payment of the freight before the voyage was completed, was singularly like the present. If there is any difference, the present case is even stronger; for here, by charging the plaintiff with the premium of insurance, the charterers have, in the most decisive manner, indicated an intent to pay the freight to that extent absolutely, place that amount at the risk of the voyage, and so acquire an insurable interest therein. And every other reason assigned in De Silvale v. Kendall applies with equal force in this case. To the extent of one-third of the freight, the charterers were bound to regard it as a payment. They were neither to charge interest nor commissions thereon. Whether an advance under the further clause beyond one-third would stand on a different footing, it is not necessary to say. That is called an advance on the credit of the freight, and is to be allowed, both interest and commissions—in that respect having more the appearance of a loan to the owners.

It is not, in strictness, a payment in advance of the whole service to be rendered, in which nothing has been done by the ship-owner that entitles him to be regarded as meritorious. Although freight is not regularly payable till the cargo is delivered, no rule of law forbids that the parties should stipulate to pay at successive stages of the voyage as the service is in part performed, and so each become sharer in the subsequent risk of the final completion of the voyage.

Indeed, under special terms used in the contract, a payment in advance has been held to be in consideration that the goods were received on board, and so not to be recoverable back, though the vovage was broken up.

Here, for aught that we can say, the service performed by the plaintiff, down to the time the ship left Callao, was justly equal to the sum advanced. The payment then made was, according to the contract, to be payment, and not a loan; and the contract fairly imports that, to that extent, the risk of loss of freight was assumed by the charterers from that time. (See, on this subject, Andrew v. Moorhouse, 5 Taunt., 435; Saunders v. Drew, 3 Barn. & Ad., 445; Winter v. Haldimand, 2 id., 649; Manfield v. Maitland, 4 Barn & Ald., 582; Watson v. Duykinck, 3 J. R., 335; Phelps v. Williamson, 5 Sandf., 578; Ogden v. The Gen. Mut. Ins. Co., 2 Duer, 204.)

It is true that the jury have not attempted to find the amount to be recovered; but they have disregarded the instructions of the Court, and, in answer to a question which assumes that the advance by the charterers must be taken as payment on account of freight, have, nevertheless, found that no freight was earned.

The amount to be recovered, the Judge reserved for adjustment ; but, without disregarding this finding, no allowance could be made for the freight so received.

Indeed, the whole verdict proceeds upon the idea of a total loss of both vessel and freight; and the necessary details to render an adjustment of the amount due on the policy on freight treated as a partial loss are not ascertained. And without some proof of the cost of forwarding the cargo by another vessel, they cannot be ascertained.

We think a new trial is necessary to the proper determination of the rights of the parties.

Mew trial ordered, costs to abide the event.


source: Caselaw Access Project

author: By the Court—Hoffman, J.

license: Public Domain

text:
    McCullough, Plaintiff and Appellant, v. Colby et al., Defendants and Respondents.
    1. It is essential to the right of plaintiffs in a judgment to maintain an action to set aside a deed of real estate made by the defendant in such judgment, as having been made with intent to defraud creditors, that an execution should have been issued on such judgment to the Sheriff before suit brought.
    2. Unless the complaint avers the fact of issuing such execution, it will not state facts sufficient to constitute a cause of action.
    3. Although such an execution be issued after suit brought, that fact cannot be made a part of the plaintiff’s case, either by amendment of his complaint or by supplemental complaint
    (Before Hoffman, Siosson and Woodruff, J. I.)

    Heard, November 9;
    decided, December 10, 1859.
    This is an appeal by Charles H. McCullough, the plaintiff, from, a judgment dismissing his complaint. The action was tried before Mr. Justice Hoffman, without a jury, on the 21st of June, 1859.
    The action was brought against John L. Colby and Mary Ann Colby, to set aside a conveyance from the former to the latter, as fraudulent and void as against the plaintiffs, who were judgment creditors of John L. Colby. Other persons, holding mortgages on the property, so conveyed, were made parties, but no personal claim was made against them, and no question arises in respect to them.
    The Judge’s conclusions of fact and of law are as follows:
    “ 1. That the action was brought to set aside a conveyance of real estate made by the defendant, John L. Colby, to the defendant, Mary Ann Colby.

      “2. The plaintiff recovered judgment against the said John L. Colby, on the 27th day of March, 1857.
    “ 3. The defendant, John L. Colby, was served with a summons in this action on the 4th of April, 1857. The defendant, Mary Ann Colby, was served with a summons out of the State on the 6th of May, 1857, and on the 23d of May she voluntarily appeared and answered. An order had been made on the 8th of April, 1857, for commencing the suit by publication as against her; but no publication was made under the same.
    “4. An execution upon the judgment in favor of the plaintiff was issued on the 11th of April, 1857.
    “The complaint, as served, not stating the issuing of an execution on the judgment, and such fact not being admissible to be put upon the record in the case, I find, as a conclusion of law, that the complaint does not state facts sufficient to constitute a cause of action, and order judgment dismissing the same.”
    The plaintiff excepted to the decision, and from, the judgment entered thereon the present appeal is taken.

      F. H. Upton, for plaintiff,, (appellant.)
    I. This action is not, in any sense, a creditor’s bill; it is an action by a judgment creditor for the removal of a fraudulent obstruction to the satisfaction of his judgment, out of specific real estate of the debtor; and'in such an action it is not necessary to aver the issuing of an execution upon the judgment, because the issuing of an execution is not an essential preliminary to its commencement.
    The case in 5th Sandford stands alone, in apparent conflict with this position. In a review of that decision it will be found that all the authorities, precedent and subsequent, concur in establishing the following general principles:
    1. When a judgment creditor files his bill to set aside a fraudulent transfer of personalty, he must aver the issuing of an execution upon his judgment, because he can obtain a lien upon the personalty of his debtor only by virtue of his execution in the sheriff’s hands.
    2. When a judgment creditor files-his bill to reach the choses in action of.his debtor, or property not susceptible of being levied upon, he must aver the issue and return of an execution unsatisfied, because upon such property he can only acquire a lien by filing his" bill after the issue and return of an execution; and
    3. When a judgment creditor seeks only to set aside a fraudulent conveyance of real estate, he need not aver the issuing of an execution, because his lien is perfect by the docketing of his judgment, and the action is brought to remove a fraudulent obstruction to its enforcement.
    II. The case in 5th Sandford was that of a bill filed not only to set aside fraudulent conveyances of real estate, but also of personal property, and to reach choses in action. It was, and by the Court was declared to be, analogous to the judgment creditor’s bill, strictly so called. It follows that the only portion of that decision which can be regarded in any sense as authoritative, is that which is applicable to the case then before the Court, namely, to a bill “analogous to a judgment creditor’s bill, strictly so called.” The complaint in this case has no analogy to a judgment creditor’s, and therefore the decision in the case in 5th Sand-ford (as distinguished from the dicta contained it) cannot be applied to this case.
    III. The case in the 5th Sandford, '(apart from its decisions applicable to a judgment creditor’s bill,) is in conflict with all the previous decisions upon the subject in our own Courts. (Hendricks v. Robinson, 2 Johns. Ch., 284; Bayard v. Hoffman, 4 id., 450; Brinckerhoff v. Brown, 4 id., 671; Spader v. Hadden, 5 id., 280; McElwain v. Willis, 9 Wend., 548; Beck v. Burdett, 1 Paige, 308; Clarkson v. De Peyster, 3 id., 320; Dix v. Briggs, 9 id., 596; Coe v. Whitbeck, 11 id., 42.)
    IV. The opinion of the Court, in 5th Sandford, as applicable to any other than a judgment creditor’s bill, is not sustained by the authorities cited in its support.
    The authorities cited by Mr. Justice Campbell, in giving the opinion of the Court, are the English authorities exclusively. They are cited by Chancellor Kent as sustaining the decisions in Johnson, and by Chancellor Walworth and Chief Justice Nelson, and others, in the subsequent decisions.
    1; will be seen that Chancellor Kent, as well as the other erni'i mt Judges, in their several decisions, state the reasons for tli inciples established (as set forth under the 1st point) vith

      much elaborate discussion and reasoning, as well as citation of the English authorities; but Mr. Justice Campbell says, in allusion to these cases, “ they are mere dicta, arid no reasons are given in any of these cases in our Courts for the doctrines which they declare.”
    Mr. Justice Campbell was led into a total misapprehension of the doctrine announced by the English authorities, by reason of his erroneous supposition of the existence of analogies where no ,analogy exists.
    The doctrine is simply this, that the Chancery jurisdiction, in aid of a creditor seeking to reach the property of his debtor to satisfy his judgment, depends altogether upon the creditors having proceeded to the extent requisite to acquire a lien upon the property designated, by taking the last step available to that end, at law. How, each English case, without exception, referred to by Chancellor Kent, and with one exception, by Judge Campbell, was where the property sought was either personal or equitable interests; and inasmuch as a lien by a judgment creditor could only be acquired upon this character of property in the one case by the issuing of an execution upon the judgment and placing it in the Sheriff’s hands, and in the other by the issuing and returning an execution unsatisfied, and the filing of a bill; it follows, that in such cases, unless this is averred to be done, there is no jurisdiction in Chancery. As a necessary consequence of this doctrine, (as to property other than real,) in a case where the property sought to be reached is real estate only, inasmuch as the lien of the j udgment creditor upon this, under our statute, becomes absolute by the mere docketing of the judgment, and is not made more absolute, more perfect, or more specific, by the issuing of an execution, it was considered, by Chancellor Kent, as an irresistible logical deduction, that in such a case, in which the judgment creditor seeks the aid of a Court of Chancery solely to reach the real property of his debtor, the jurisdiction attaches upon the docketing of the judgment, because that act is the last available step which the creditor can take at law for the perfecting his lien and completing his title.
    Mr. Justice Campbell, in addition to the English authorities cited by Chancellor Kent, cites and relies upon one recent decision in England. It will be seen, under the next point, how entirely he has misapprehended the authority of that case, and how completely it sustains the dicta of Chancellor Kent.

      V. The opinion in the case in 5th Sandford, so far as it is applicable to other than creditor’s bills, strictly so called, is based upon clearly erroneous assumptions of facts and analogies.
    1st. Mr. Justice Campbell says: “The statutes of this State make judgments, when docketed, liens on the real estate of the debtor; but these liens are general, not specific.” On the contrary, they are both general and specific. No lawyer will pretend that the lien of a judgment creditor upon his debtor’s real estate can be made more specific, more absolute or more perfect by the issuing of an execution upon the judgment.
    2d. Mr. Justice Campbell says: “In England, by force of ancient statutes, as under our laws, the judgment becomes, from the time of its docket, a lien upon the freehold estate of the debtor.” This is not so. On the contrary, in England, as in some of our own States, Kentucky, Mississippi and North Carolina, judgments do not become liens upon their being docketed, but only upon the delivery into the hands of the Sheriff of an execution or elegit. And this leads to the
    3d. Erroneous assumption in the case in 5th Sandford. Mr. Justice Campbell says that “the elegit in England is analogous to our writ of fi. fa.” This is not so. On the contrary, the issuing of the elegit on the judgment, in England, is.essential to the acquisition of a lien upon the real estate of the debtor. The fi. fa. under our law performs no such office. The lien is perfect, specific and absolute when the judgment is docketed, and before the fi. fa. is issued.
    4th. These several erroneous assumptions are at the basis of the misinterpretation, by Mr. Justice Campbell, of the authority of the case of “Neate v. The Duke of Marlborough," which is relied upon as the support of the decision in 5th Sandford. For if it be not true that “ the elegit in England is analogous to our writ of fi. fa.," and if it be not true that “in England, by force of ancient statutes, as under our laws, the judgment becomes a lien upon the freehold estate of the debtor from the time of its docket,” and if it be true that in England the issu'ing-of the elegit upon the judgment is essential to the acquisition of the lien, then it follows that Lord Cottenham in gi ving the opinion .df the Court in Neate v. The Duke of Marlborough, that a judgment creditor cannot come into Chancery for aid, to reach the realty of his debtor, without first suing out his elegit, in truth announces the very doctrine promulgated by Chancellor Kent, and by all the early decisions in our own Courts. It is only necessary to read the opinion of Lord Cottenham, in the case cited, a little further than the language of it, as quoted by Mr. Justice Campbell, to demonstrate the erroneous assumptions of the case in 5th Sand-ford, and to show how completely the authority of the English cases is perverted by reason of these errors.
    VI. The opinion in the case in 5th Sandford, so far as it is applicable to cases other than those analogous to judgment creditor's bills, strictly so called, is not only unsupported by the English decisions, cited to sustain it, and in conflict with all the previous decisions in our own Courts, but it is repudiated by every subsequent decision in our own Courts of concurrent jurisdiction and authority, in which the question has arisen. (Cooper v. Classon, 1 Code Rep., N. S., 347; Parshall v. Tillou, 13 How. P. R., 7 ; Greenwood v. Brodhead, 8 Barb., 593.)
    In the case last cited, the principle, as evolved from all the authorities, is briefly and very clearly stated, and acquires an importance, because, as stated, it is subsequently cited •with approval by our Court of Appeals. The principle is thus stated:
    “ I think the true rule is this: To authorize any person to demand the aid of this Court in directing the appropriation of partnership property, he must have a lien, either legal or equitable, upon it, or must be in a situation to assert such Ken. A creditor must obtain such a lien on-the property before he can control it. If it be real estate, he obtains this lien by judgment, docketed. If personal property liable to execution, by the issue of an execution and levy; and if choses in action, by the return of the execution unsatisfied, and the filing his complaint.”
    VII. The opinion in the case in 5th Sandford, so far as it is applicable to the case of a judgment creditor seeking merely to set aside a fraudulent conveyance of real estate, which operates as an obstruction to the satisfaction of his judgment, by the enforcement of its lien, is repudiated by the clearest expression of opinion, if not by the authoritative decisions of the Court of Appeals. (The Chautauque Bank v. White, 2 Seld., 236; Crippen v. Hudson, 3 Kern., 161.)
    VIII. The provisions of sections 127, 135, (5th subd. of the last clause,) 136 and 139 of the Code, applied to the facts of the case, show that the execution had in truth been issued upon the plaintiff’s judgment, (April 11th, 1857,) nearly a month before this action was, in judgment of law,, commenced—which was certainly not before service upon the fraudulent grantee out of the State, namely, May 6th, 1857.
    She is the only party against whom any relief is sought.
    Without service upon her, no proceeding could be taken in the action by the plaintiff of any kind whatever.
    The lis pendens, although filed at the time of service on the other defendants, had no operation at all until May 6th, 1857, when the holder of the fraudulent title was served.
    A purchaser for value, between the time of service on the other defendants and on the fraudulent grantee, would, unquestionably, have been protected, notwithstanding the Us pendens.

    IX. If an execution had in fact been issued before the action was commenced, and if the issuing of an execution is a fact necessary to constitute the cause of an action like this, then the equities, as disclosed by the case, clearly require that the plaintiff have leave to supply the averment by amendment.
    1. The objection is purely technical and formal.
    2. It might have been raised, at the commencement of the action, by demurrer.
    3. If sustained, it operates to defeat another action.
    4. If sustained, and the plaintiff is compelled to bring another action, his rights are lost; the property is sold, and the principal defendant is beyond the reach of process.

      J. M. Robertson, for defendants, (respondents.)
    I. This action cannot be maintained against the defendants, John L. Colby or Mary Ann Colby, because no execution had been issued on the judgment, which is the foundation of this action, at the time it was commenced. (N. A. Fire Ins. Co. v. Graham., 5 Sand. R., 198.)
    The case in 5 Sandford, above referred to, so far as it concerns this point, is entirely analogous to the present. There the complainants had obtained a decree for a deficiency on a sale of mortgaged premises, and the bill charged that at the time of '"contracting the original obligation, and for a long time subsequently, the defendants were the owners of certain real estate described in the bill, and that the same was conveyed away, fraudulently, prior to the docketing of the decree; the prayer of the bill is (among other things) that the conveyance made by them be set aside; that, hindrances and incumbrances being removed, the complainants may issue execution. In the present case, the plaintiff had obtained a judgment against J. L. Colby, and the complaint charged that he had, fraudulently, prior to the docketing of his judgment, conveyed the real estate described in the complaint to Mary Ann Colby-, and prays that said conveyance be declared void and canceled of record.
    The object of the action in both cases is to remove an obstruction to the enforcement of the lien of a judgment.
    ' II. The law, as announced in the North American Fire Insurance Company v. Graham, is founded in principle, and is in accordance with the well established rule in England, as well as the general understanding and practice of this State. (Neate v. Duke of Marlborough, 3 Myl. & Craigh., 407; 9 Simons, 60; Mitf. on Pl., 114, Dublin ed.; Story’s Eq. Juris., §1216; Wiggins v. Armstrong, 2 J. Ch. R., 144; Bennett v. Musgrave, 2 Ves. Sen., 51; 3 Atk., 200; Cooper’s Eq. Pl., 149.)
    . It will be seen by the above cases that it is well established in England that a bill in equity cannot be filed to remove obstructions upon a freehold estate without having first issued an elegit. ' There "is a perfect analogy between an execution in this State and an elegit in England. A judgment in this State binds the real property from the time it is docketed ; in England it binds the land from the time it is signed. (Statute of Frauds, 29 ; Car. II, ch. 3, and statute 1 and 5 Vict., ch. 110, §19.; Blackstone’s Com. by Chitty, vol. 2, p. 326.)
    But a judgment in England or in this State, does not give a lien within the proper sense of that term, for it gives no possession- or right to possession of the property; the judgment merely binds-the property, it is merely an obstruction to the conveyance of the property, and the effect of the execution is to give the •creditor a'legal title. The object of the elegit in England is to put the creditor into possession of the property, and of the execution in this State to put him in possession of the property or its proceeds, and thus perfect his lien or title; and having done all he can do to perfect his title, if he finds an obstruction to. his execution, he is then in a condition to ask the aid of a Court of-Equity to have it removed. But if he never asserts the lien of his judgment by execution, is this Court to give him the benefit-of a lien to which he has never asserted his right ?
    It is a well established rule that the aid of a Court of Equity cannot be sought until every remedy at law has been exhausted. The law has given a remedy by writ of execution, and this writ is the only means provided by law for the enforcement of a judgment; a judgment itself never satisfies a demand; it is merely a final declaration of rights between the parties, declaring his right to enforce payment by execution. The plaintiff in this case has not availed himself of a remedy with which the law has armed him; he has left untried the only remedy which could have given him satisfaction; and he is asking the aid of a Court of Equity, without having first exhausted his remedy at law.
    It is against the policy of the common law, as well as the express statutes of this State, to sell real property for debt, except upon a certain contingency, namely, the want of sufficient personal property to satisfy the demand. There must be a complete exhaustion of all remedies against personal property; the writ commands that the judgment first be satisfied out of the personal property, and failing in this, then he may resort to real estate; and until it has been ascertained that the debtor has no personal property, you cannot touch a single inch of the land. A fortiori,. you cannot move in a Court of Equity to remove incumbrances on the land until that fact has been ascertained. But how is this Court to know that this contingency has ever happened? How is the Court to know that any remedy has been sought against personal property, except by the issuing of an execution, which is the only way the law has provided—the highest and best evidence, which is the kind of evidence the law requires ? It is not the party who is to be the j udge of whether there is personal property or not; that is the prerogative of the Sheriff alone. The law, for wise purposes, has taken it out of the hands of the party.

      But suppose, immediately after judgment is obtained, a bill is filed to remove incumbrances, with an averment that there is no personal property, and after a protracted litigation the incumbrance is removed; but -in the meantime, in the mutations of fortune, the debtor has acquired ample personal property to satisfy the judgment; then when an execution would be issued, the Sheriff would satisfy the judgment out of the personal property, and the protracted proceedings to remove the incumbrance would be nugatory and of no practical effect; but if execution has been issued before suit brought, and the incumbrance removed, the creditor may proceed against the real estate without reference to the question whether or not, in the meantime, the debtor may have become possessed of sufficient personal property to satisfy the judgment. His right to proceed solely against the real property has been perfected by his execution.
    In every ease found dn the reports of this State, where a decree has been made setting aside a conveyance of real estate for fraud, an execution had first been issued. (Hendricks v. Robinson, 2 John. Ch. R., 284; Clarkson v. De Peyster, 3 Paige, 320; Beck v. Burdett, 1 id., 305.)
    In Brinkerhoff v. Brown, (4 John. Ch. R., 671,) the com.plainant filed his bill before he had recovered judgment; and Chancellor Kent says: “ The legal remedy by execution must first be tried.’1 “ This Court is not to know by anticipation that it will be ineffectual.” And he adds: “ It is sufficient to observe that I find the. rule to have been long and uniformly established, that to procure relief in equity by a bill brought to assist the execution of a judgment at law, the creditor must show that he has proceeded at law to .the extent necessary to give him a complete title.” The rule referred to is that stated in Mitford’s Pleadings, above referred to.
    The case of the North American Fire Insurance Company v. Graham, is the only case to be met with in the reports of this State where the question has been argued and adjudicated. The highest tribunal known to this Court, which has passed on the question, has solemnly decided, after a full argument, that the action cannot be maintained; and it is the duty of the Court to sustain the decision upon the principle of stare decisis, even if its soundness should be doubted; for the correction of the error will not compensate for the evil of shaking the stability of the decisions of this Court. If the decision were wrong, the plaintiff is not without his remedy. The Court of last resort is the proper tribunal to correct the error if it existed. (Curtis v. Leavitt, 15 N. Y. R., 188.)
   By the Court—Hoffman, J.

It is admitted that the only question before us on this appeal is, whether a complaint filed by a creditor who has obtained a judgment against his debtor, for the purpose of setting aside a conveyance as fraudulent, must not allege an execution issued and returned, or at least that an execution has issued.

The case of The North American Company v. Graham, (5 Sandf., S. C. R., 197,) is an authority which ought apparently to dispense with any examination of the present case, and to call upon us to rest the decision of this appeal upon that alone. It has been commented upon with industry and ability, and its correctness disputed upon many grounds, of more or less weight. In my opinion, it can be supported, as the true exposition of the law; and we are at liberty and may be usefully employed in sustaining its authority.

Before - the statute of 13 Edward I, cap. T8, the lands of a debtor could not be reached in any mode for obtaining satisfaction of the debt, except, 1st, in a case involving the King’s prerogative, and 2d, against the heir on a lien created by his ancestor, such as a statute, staple, &c. This, Lord Coke observes, seems strange; custom and usage had so far encroached on the common law. (Harbert's case, 3 R., p. 12.)

The levari facias was, as far as I can understand, used only in three cases. The first was upon the process of outlawry, when after the capias utlagatum there could issue a venditioni exponas to sell the goods; a scire facias to collect the debts; and a levari facias to levy the issues and profits of the land. (Watson on Office and Duty of Sheriffs, pp., 160, 161, 163; Law Library, vol. 7, p. 115, &c.)

The second was upon a recognizance binding lands being forfeited. (Tenny de la Ley, 479; Fitzherbert Natura Brevium, fol. 265, D.)

The rents and profits were alone taken. Possession was not delivered, and the third ease was of proceedings against clerics.

The statute of 13 Edward I, cap. 18, provided as follows: “When debt is recovered or knowledged in the King’s Court, or damages awarded, it shall be from henceforth in the election of him that sueth for such debt or damages to have a writ of fieri facias unto the Sheriff for to levy the debt of the lands and goods; or that the Sheriff shall deliver to him all the chattels of the debtor (saving only his oxen and beasts of his plough) and the one-half of his land, until the debt be levied upon a reasonable price or extent. And if he be put out of that tenement, he shall recover by a writ of novel disseisin, and after by,a writ of redisseisin if need be.” (Statutes at large, vol. 1, p. 93.)

The form of the elegit was this: commanding the Sheriff “that of all the goods and chattels of the defendant in his bailiwick (except his oxen and beasts of the plough) and also a moiety of the lands and tenements in the Sheriff’s bailiwick, of which the defendant, on the day the judgment was obtained or at any time afterwards, was seized, he should cause without delay to be delivered to the plaintiff, by reasonable price and extent, to hold the said goods and chattels as his own proper goods and chattels, and to hold the moiety of the said lands and tenements, as his freehold, .to him and his assigns, according to the form of the statute, until the debt and damages should be thereof'levied.” (Brownlow’s Brevia Judiciala, p. 77; Watson, Office, &c., of Sheriff, p. 207; Law Library, vol. 7, p. 149; Moyles Book of Entries, 37; Curzon’s Law of Executions, 150.)

Some points of moment were well established under this statute. First, all the goods were delivered at a price found by a jury in a manner which was afterwards prescribed. The goods were not sold as upon a fi. fa. Second, the word “price” was referred to the goods, and the word “extent” to the lands. Each was to be appraised through a jury. The goods were delivered at such appraisement, and the moiety of the lands, at the annual value so found. Third, if the chattels taken were sufficient to satisfy the debt, the Sheriff was not to extend the land. (2 Inst., 395.) Fourth, we see that the form of the writ imports that the judgment had at least this effect, that when the elegit was sued out, the land owned at the day of obtaining the judgment could be delivered.

The statute of 29 Car. II, cap. 3, § 10, was intended to enable a judgment creditor to reach the land of a cestui que trust. It was adopted in our former statute. (1 R. L. of 1813, p. 74.) But it was that the land could be reached where a party was seized in trust for the debtor at the time of the execution sued. This was held to refer to the seisin of the trustee, and therefore where he had conveyed with assent of the cestui que trust before execution, though after judgment, the land could not be taken. (Hunt v. Coles, Comyn R., 226.)

It was a fixed principle of the law, that a judgment operated by relation as of the first day of the term in which it was obtained. “If judgment for debt or damages was given in banco upon a trial at nisi prius, the plaintiff shall have execution of the land which the defendant had at the day of the nisi prius, for this and the day in banco are but one day in law.” (Dyer’s R., 149.)

“ So he shall have execution of the land the day the inquest is taken; but he shall not have execution of the lands that the party had on the day of the writ purchased.” (Year Book, 29 Ed. III, 27.) Again, “if a man recover debt, he may sue execution of any land the party had at the time of the judgment, though he had aliened it before execution. So of any land that he had purchased after the judgment, although he had aliened it before execution.” (Year Book, 30 Ed. III, 24.)

The statute of 29 Car. II, cap. 3, §§ 13, 14, 15, (Statutes at large, vol. 3, p. 386,) has this remarkable preamble: “ And whereas it hath been found mischievous that judgments in the King’s Courts at Westminster do many times relate to the first day of the term whereof they are entered, or to the day of the return of the original, or filing the bail, and bind the defendant’s lands from that time, although in truth they were acknowledged or suffered and signed in the vacation time, after the said term, whereby many times purchasers find themselves aggrieved.” Then the act directed the day of signing to be entered on the margent of the roll, and the paper book or record signed by the Judge. They were to be judgments from that time, and not from the first day of the term as to purchasers. (See also the Statute 4, 5, William and Mary, cap. 20, 3 Statutes at large, 526.)

It was held under the statute of elegit that if there were goods and chattels to the value of the debt, the land should not be extended. (45 Ed. III, 22, b; 2 Inst., 59, 395.) We are to notice that under the first clause of the elegit, whatever goods and chattels could be taken upon the old writ of fieri facias might be taken under the elegit. (Watson on Sheriffs, 207.)

In Virginia the statute giving any right to lands under a judgment is almost a transcript of the statute of Westminster, the second. 13 Edw. I. (Burton v. Smith, 13 Peters R., 480.) And Chief Justice Marshall, in The United Statesv. Morrison, (4 Peters, 124,) says: “ There is no statute in Virginia which, in express terms, makes a judgment a lien upon the lands of the debtor. As in England, the lien is the consequence of a right to take out an elegit. During the existence of this right, the lien is universally acknowledged.”

In that case the point decided was, that the right to take out an elegit was not suspended by suing out a fieri facias, and, consequently, that the lien of the judgment continued pending the proceedings on that writ. The decision proceeded upon that of the Court of Appeals in Virginia, which, no doubt, was the case of Coleman v. Cook. (6 Randolph’s R., 618.)

In the last case, writs of fi. fa. had been issued. The Sheriff had made some part of the judgment creditor’s debt upon them, and had not returned nulla bona as to the rest of the demand. Ho other execution had been taken out. The bill in Chancery to reach property was sustained.

In Burton v. Smith, (13 Peters, 464,) a case arising in Virginia, a judgment was obtained and an elegit issued upon it. The judgment was had in June, 1827, the elegit issued in October, and a deed, under which the questions arose, was made in August of the same year. The question was, whether a reversion expectant on an estate for life was bound, and could be reached in a Court of Chancery and be sold under its decree. The Court say: “In relation to lands of which the debtor has the actual seisin, there is no doubt but that the judgment creates a lien.” The language in The United States v. Morrison, (supra,) is then quoted; and, after examining authorities, the Court proceed: “We are, therefore, satisfied that the judgment of the appellees bound the reversionary interest in the land in question.” The contest was between the judgment creditors and a purchaser under the deed of August.

In The Bank of the United States v. Winston, (2 Brock., 252,) Chief Justice Marshall says: “ The lien depends on the right to sue out an elegit'' In Massingill v. Downs, (7 How. U. S. R., 760-768,) it is observed: “ The lien, if not an effect of the judgment, is inseparably connected with it. And this is the case whether the lien was created by the judgment and execution or by statute.”

In Coutts v. Walker, (2 Leigh’s R., 268,) Walker recovered judgments against Patrick Coutts, son of Reuben Coutts, on the 2d of March, 1821, and sued out executions thereupon. Two deeds were executed by Patrick between the first day of the term and the day of the actual rendition of the judgment. These deeds were alleged to be fraudulent. No proof of this was given; but the question arose, whether a certain equitable interest of the judgment debtor, which was in him on the first day of the term, could not be reached by a bill in Chancery of the creditor. It was held that this could be done. Two points were declared: 1st. A judgment creditor obtains a lien in equity on an equitable estate, as he acquires a lien at law on a legal estate; 2d. Judgments related to the first day of the term in which they were rendered, except, in England, as to purchasers under 29 Car. II, ch. 3, § 14. That act was not part of the law of Virginia.

It deserves notice that the most accurate English writers speak of the judgment forming a lien upon, or binding, the lands.

Thus, Baron Gilbert, (on Executions, p. 38,) says: “The judgment binds, not only the lands and tenements of which the defendant is -actually seised, but also the reversions on leases for lives, as well as for years.”

So in 2d Wm. Saunders, 68: “Judgments bind, not only lands of which the defendant is actually seised, but also reversions; and, therefore, a moiety of a reversion may be extended.”

Watkins on Descents, (p. 40,) uses similar language: “It is upon these principles that the authorities lay down the doctrine that a judgment binds a reversion after an estate for life.”

These expressions of elementary writers are referred to, by BARBOUR, J., in the case of Burton v. Smith, above cited.

' Mr. Bingham, (on Judgments and Executions, law library, vol. 13, p. 40,) says: “ As against the defendant and his heirs, the judgment binds a moiety of all the freehold lands and tenements which he, or any person in trust for him, were seised of at or after the time to which the judgment relates.”

So, Chancellor Walworth, after noticing that the Statute of Westminster does not, in terms, create a lien so as to prevent a sale before execution, observes that the. uniform construction of the statute has been to give such a lien upon all lands which could be reached by the process of the Court, from the entry of the judgment. (Manhattan Co. v. Evertson, 6 Paige, 457-467.)

It deserves notice, also, that the judgments of the United States Courts become liens solely by force of the process act of 1792 and 1789, making the forms of writs and executions the same as those used, in the Supreme Courts of the respective States. Where the execution can take real estate held at the time of the judgment, the lien prevails. (Konig v. Bayard, 1 Paine & Duer’s Pr., 289; Manhattan Co. v. Evertson, supra; Tayloe v. Thompson; 5 Peters’ R., 358.) The line, of reasoning of Mr. Justice Thompson in Konig v. Bayard is quite pertinent to the present question.

It seems to me quite illogical, and inconsistent with the form of- the writ.and the admitted operation of the statute, to say that the elegit created the lien on lands. If it did, the lien could not have existed, before the .writ issued, and the statute could not have warranted the taking of lands aliened after the judgment, and before the ehgit was issued.

'On the other side, the statute did not, in express words; declare the judgment a lien, as has been done in statutes in many of our States—for example, in our old act of 1813. It may, then, not be logical and precise to say that the judgment created the lien.

Yet the statute does, practically and substantively, amount to this. The judgment shall operate to give to the judgment creditor a power to take lands held at its date, whenever he shall take out a writ of elegit to enforce such power. This is a right to take the moiety of the land. What is this but a right to do something with- the land?—to subject it to payment of his demand? The general use of language authorizes us to call this a lien.

These views aid in the estimation of the authority of Neate v. The Duke of Marlborough. (3 Mylne & Craig, 407.) As a decision it is explicit that an elegit must be issued, although it need not be returned. It is shown that the case of Manningham v. Lord Bolinbroke was a case of a demurrer overruled, because it was not necessary to state the return of the writ, although it was so as to its having been issued.

The language of Lord Cottenham imports merely that the judgment per se gives no title to the land, and therefore does not authorize an application to the Court of Equity. It is the act of Parliament which gives the legal title upon taking out the writ— that legal title or right being to bring ejectment. If obstructed in this, the Court gives its aid. In other words, it is not because there was nothing of lien, but because the creditor had not asserted such lien by the usual process—in truth, had not shown a remedy at law ineffectual.

The view, which I consider as entirely satisfactory upon this point, is this: I have before shown that it was an ancient ‘rule, that if there were goods and chattels sufficient to pay the debt, lands should not be extended. The elegit comprised in one writ the direction to make the debt out of goods and chattels, and out of a moiety of the lands. The construction and rule which required that the goods should be first resorted to, has been adopted in terms in all the executions known in our State since the year 1787.

Thus, in the law of the 19th of March of that year, (1 Greenl., 407,) section 7, the execution to be issued against lands and tenements is to command the Sheriff that of the goods and chattels he make the debt, &c., and if sufficient goods and chattels cannot be found, then he cause the debt to be made of the lands, &c. Section 9 of the revised act of 1813, (1 R. L., 502,) is exactly to the same effect. The provision of the Revised Statutes of 1830 is substantially the same. (2 R. S., 367, § 24.) And the Code is, •that if the execution is against the property of the judgment debtor, it shall require the officer to satisfy the judgment out of the personal property, and if sufficient personal property cannot be found, out of the real property belonging to the debtor on the day when the judgment was docketed.

In all this there is the plain principle found that personal property is the primary fund for payment of the judgment debt, and an execution to reach such property is the regular and known method of ascertaining whether it exists or not. It is presumed that the Sheriff does his duty and will levy upon personal property if it can be found; but to raise this presumption the writ must, of course, be in his hands.

This line of reasoning tends to support the right to file such a bill as the present, after execution issued, and before its return, upon allegations of.the inability of the Sheriff to find personal property, and of the interposition of the fraudulent transfer of real estate; and for this we shall find considerable authority in the cases hereafter mentioned.

It is insisted by the defendants’ counsel that no case can be found distinctly holding that a fraudulent transfer of real estate may be set aside without an execution issued.

The following are the leading authorities in our Courts connected with a fraudulent conveyance of real estate:

In Brinckerhoff v. Brown, (4 Johns. Ch. R., 671,) there is nothing but the general language of Chancellor Kent, which the counsel has referred to, which tends to support the proposition that an execution is not necessary. The property in question was personal. No execution bad been taken out, nor judgment recovered, when the bill was filed, but a judgment was obtained during the pendency of the suit. The case offered no ground as to real estate, as the legal remedy was plain and open. In Hendricks v. Robinson, (2 Johns. Ch. R., 286,) the bill was by a judgment creditor, and after execution issued. It was to set aside conveyances of real estate, as well as transfers of personal property. The Chancellor held that the conveyances of the real estate were void, and should be declared fraudulent. The bill was filed in June, 1809. The execution had been issued on the 6th of February, 1809, upon judgments recovered in the month of January, 1808. The conveyances were made in March, 1808. There is nothing to show that the executions had been returned; but there was an allegation in the bill, after the statement of the issuing of the executions, that by reason of the said fraudulent transfers (above stated) the plaintiff could obtain no satisfaction of his judgments. This case, then, involves the proposition, that after execution on a judgment a transfer of real estate may be set aside in equity. It involves also, as I think, the proposition that such execution need not be returned. It tends to negative the proposition that a judgment without execution is sufficient. And when the language of Chancellor Kent is considered, (see p. 296,) used when he is treating of the transfer of the real estate, we are almost authorized to say that he -deemed the issuing of an execution essential.

In Brinckerhoff v. Brown, (6 Johns. Ch. R., 139,) the executions of all the co-plaintiffs, (judgment creditors,) had been returned. The bill was to reach many things besides real property.

The decisions of Chancellor Walworth, upon questions of fraudulent conveyances and transfers, are very numerous. I select that of King v. Wilcox, (11 Paige, 589,) as pertinent to the present inquiry. The complainants had obtained a judgment, and had issued an execution. It is not stated that the execution had been returned, only that Wilcox had no property on which the execution could be levied, except the premises specified in the deed assailed. It was real estate conveyed, and me conveyance was set aside.

The Bank of Orange County v. Fink, (7 Paige, 87,) was a case of an execution taken out, and real estate alone in question. In The Bank of the United States v. Housman, (6 Paige, 527,) the executions had been returned.

It is true that in Clarkson v. Depeyster, (3 Paige, 320,) the Chancellor does say: “That for the purpose of obtaining the rehef sought it was not necessary for the judgment creditor even to sue out execution; that he might have filed his bill in respect of the lien, and to clear the real estate from an incumbrance improperly or fraudulently interposed at any time after the docketing of his judgment.” Yet, in the case, the judgment creditor had issued and had an execution returned, and the creditor by decree had the execution in the hands of the Sheriff. The-latter was a lien from the time of issuing the execution.

The Chancellor refers to 1 Paige, 305, and 4 Johns. Ch. R., 677. The former case (Beck v. Burdett) cannot give support to the proposition; I think its language is hostile to it. The other case (Brinckerhoff v. Brown) does not sustain it.

In The Mohawk Bank v. Atwater, (2 Paige, 54,) the complainants had taken out executions on their judgments, under which a sale had been made, and they had purchased the property. They then filed a bill to set aside fraudulent conveyances. The Chancellor does indeed repeat the proposition stated by him in Clarkson v. Depeyster.

With the exception of these dicta of the very learned Chancellors I have mentioned, and the dictum of Assistant Vice-Chancellor Sandfobd in Storm v. Waddell, (2 Sandf. Ch. R. 510,) there is not, I believe, to be found the least authority warranting the proposition that an execution need not be issued, down to the period of the close of the Court of Chancery in our State.

I have gone over numerous cases decided since that time. In the following a conveyance of real estate comes in question, generally connected with transfers of personalty: Nicholson v. Leavitt, (4 Sandf. S. C. R., 253; 2 Seld., 510,) The Chautauque Bank v. White, (2 Seld., 236,) Brigham v. Tillinghast, (3 Kern., 215,) Collomb v. Caldwell, (16 N. Y. R., 484,) Barney v. Griffin, (2 Comst., 365,) a case limited to real estate, and of a bill after execution returned unsatisfied; Crippen v. Hudson, (3 Kern., 161,) Greenwood v. Brodhead, (8 Barb., 593,) Bishop v. Halsey, (3 Abb., 400,) Wilson v. Forsyth, (24 Barb., 105.) There is nothing in either of these cases that approaches to a decision of the point contended for by the plaintiff’s counsel. There are a few general expressions scattered through the opinions in its favor, and nothing more.

My conclusion is, that the North American Company v. Graham is not affected by any decisive authority, previous or subsequent, nor by any sound line of legal reasoning; that it announces the true rule; and that the judgment in the present case must be affirmed.

Judgment affirmed., with costs.