text:
    D. J. Whiting v. M. C. T. Kimball, impleaded with. C. L. Cornish.
    1. An únexcused delay of over eight months, after a case has been settled by lapse of time, to move for liberty to submit the proposed case and amendments for settlement to the Judge who tried the cause, disentitles the party to any relief.
    2. Where, on an appeal, the judgment has been affirmed by default, it will not, in such a case, be vacated to enable such a motion to be made, especially where the attorney had notice, at least two months before such affirmance by default, that it would be insisted that the case was settled by lapse of time, and failed to move promptly for relief, or to appear and object to the hearing of the appeal, or apply on sufficient grounds, for a postponement of the argument.
    (Before Bosworth, Ch. J., and Hoffman and Woodruff, J. J.)
    Heard, August 1st;
    decided, August 30th, 1860.
    This is a motion to open a default taken at General Term, on the first Monday of June, 1860, affirming the judgment as to the defendant Kimball, and also to vacate an order made on the 16th of that month, denying a previous motion to open such default.
    The defendants appeared by different attorneys; at a trial before the Court, without a jury, the plaintiff’s complaint was dismissed, and judgment was perfected in May, 1858. On the 1st of June, 1858, the plaintiff filed exceptions to the decision of the Judge, and appealed from the judgment—on the 24th of January, 1859, a case was served, and on the 9th of September the defendant Kimball served amendments which were never noticed for settlement. The defendant Kimball noticed the appeal for argument, for the June Term, 1860, and on the first day of the Term took an affirmance of the judgment by default.
    As early as April, 1860, Kimball’s attorney informed the plaintiff’s attorney that the case was settled by lapse of time and that he should adhere to that position. After the appeal had been noticed by Kimball for argument, the plaintiff on a notice served on the attorney of Cornish alone, obtained an order that the case as to Cornish be settled. The term of office of the Judge who tried the cause expired December 31, I860. The motion to open the default is made in order to obtain a review of the décisions of the Judge mainly upon questions of fact.

      Other facts are stated in the opinion, which need not be here repeated. The opinion also disposes of various allegations, made by way of excusing the plaintiff’s delay, in such manner, and as not to render it essential, to state the substance of such allegations.

      A. R. Dyett, for plaintiff.

      D. B. Greene, for defendant Kimball.
   By the Court—Bosworth, Ch. J.

The plaintiff moved, on the first of August, 1860, to open an order, taken on the first Monday of June, 1860, by default, affirming the judgment as to the defendant Kimball, and also to vacate an order of the 16th of June denying a motion theretofore made to vacate said order of affirmance.

On a trial of this action before Mr. Justice Slossoh, without a jury, the plaintiff’s complaint was dismissed, with costs, on the 5th of April, 1858. The judgment was settled on the 10th of April; the costs of defendant Kimball were taxed on the 22d; and a copy of the judgment, as settled, and notice of the entry of it, were served on the plaintiff’s attorney on the 27 th of May, 1858. On the 1st of June, 1858, the plaintiff filed exceptions to the decision of the Court, and on the same day appealed from the judgment to the General Term.

On the 24th of January, 1859, he served a Case, and the defendant Kimball served amendments thereto on the 9th of September following. The term of office of the Judge who tried the cause expired on the 31st of December, 1859, and no notice of settling the Case was served in the meantime.

The attorney of the defendant Kimball noticed the appeal for argument for the first Monday of June, 1860, and no one appearing, to oppose, took an order by default affirming the judgment as to the defendant Kimball.

The plaintiff, prior thereto, had moved for and obtained an order for the settlement of the "Case as to the defendant Cornish alone.

He moved to vacate the order of affirmance of the first Monday of June, and an order denying that motion made on the 16th of June. He now (August 1st, 1860,) moves to vacate the order of the 16th of June, and for leave to renew the motion to vacate the order of affirmance, and for leave to have the Case and amendments, served by defendant Kimball, settled, and for other relief.

It is not denied that the Case, as to the defendant Kimball, became settled by the plaintiff’s failure to notice the amendments served by Kimball for settlement, within the time required by the practice of the Courts.

It is not denied that, as early as in April, or thereabouts, the plaintiff’s attorney was advised that the attorney of defendant Kimball insisted the Case was settled, as to the latter, by lapse of time.

However much he may have been previously misled by a misunderstanding of the supposed verbal arrangement between himself and Kimball’s attorney, it was his duty to have then moved promptly for relief.

Although he subsequently served notice on Cornish’s attorney of a motion to have the Case settled as to Cornish, he served no such notice on Kimball’s attorney.

When he obtained the order for a settlement of the Case as to Cornish, Kimball’s attorney had noticed the appeal for argument; and yet the plaintiff’s attorney paid no attention to it; did not appear to obtain a postponement, or to object to a default being taken; nor move for a settlement of the Case as to the defendant Kimball.

There is no doubt as to the regularity of the proceedings on the part of Kimball.

There is no excuse attempted for the delay subsequent to the time, when the plaintiff’s attorney knew that Kimball’s attorney insisted that the case had become settled by reason of omitting to notice the amendments for settlement.

The matters stated by way of excuse for the previous delay, and for not noticing the amendments for settlement within the time prescribed by the rules, are denied by the attorney of Kimball.

The alleged verbal arrangement, even if made, would be of no validity. And although we might interfere to prevent an attorney from being overreached by the bad faith of an adversary attorney, on whose verbal engagements he had relied; yet in the present case, we have no evidence of any bad faith towards the plaintiff ’s attorney.

The alleged negotiations for a settlement which are, in part relied upon to excuse the delay, cannot be accepted as an excuse ; as they are sworn to have been terminated in March, 1860, by a refusal by Kimball to accede to the proposition made. The months of April and May elapsed between their termination, and the entry of the order of affirmance, now sought to be vacated.

We are now asked to vacate an affirmance of the judgment, and an order denying a motion heretofore made to open it; in order that a motion may be made to settle the case; and that after it is settled, the appeal may be heard.

To grant such a motion, would in effect allow a party to have a case settled more than two years after trial had and judgment perfected, and over eight months after the case had become settled under the rules of Court; and this privilege would be granted mainly in order to review the decisions of the Judge on questions of fact.

If granted upon such a case as is made by the papers before us, and if the decision were to be regarded as a precedent proper to be followed, it would be difficult to deny similar relief in almost any case of mere negligence, where the party was advised that errors had been committed at the trial or in the final decision.

We think the case is one in which we are not at liberty to interfere; that the laches have been so great, and long-continued, and are so imperfectly excused, that the motion must be denied.

Motion denied, with $10 costs.


source: Caselaw Access Project

author:
Jones, C. J.
      Oakley, J.

license: Public Domain

text:
    Zebede Ring and Peter McNamarra versus Thomas Franklin.
    The registry of a Vessel at the Custom House, although accompanied by the oath required by law of the person in whose name the registration is made, is not conclusive evidence that the ownership of such vessel is in him. The registry does not determine the ownership of the vessel, its object being merely to show her national character, and to secure the advantages belonging to vessels of the United States.
    The mortgagee of a vessel out of possession, is not liable for repairs, unless they are made upon his credit, or by a special contract with him: and parole evidence is admissible to show, that the bill of sale whereby the vessel is conveyed, although absolute upon its face, was, nevertheless, intended as a mortgage. The agreement which operates as a defeasance, need not be under seal; nor is it necessary that it should he .made or executed simultaneously with the deed, in order to give it validity.

      The mortgagor of a vessel is a competent witness for the mortgagee, who is sued as owner, to show the nature of the transfer, and to prove that a conveyance, apparently absolute, was in fact conditional. His interest in the suit is balanced, and as the mortgagee, if , liable at all, is liable, either as owner, or as mortgagee in possession, the mortgagor would not be responsible to him for costs, it being the duty of the mortgagee, under such circumstances, to pay for the repairs in the first instance, without suit.
    Assumpsit to recover the amount of a bill of repairs upon the ship Concordia. The declaration contained the usual counts for work, labour, and materials; a count for goods sold and delivered ; the money counts; and a count upon an account stated. Plea, the general issue.
    The cause was tried before Mr. Justice Oakley. At the trial, it appeared, that the repairs, for which the action was brought, were made between the 10th day of September, 1827, and the 5th of June, 1828; and no objection was made as to the items of the plaintiffs’ account. The charges in the books of the plaintiffs, were against the “ ship Concordia and owners,” and the work and materials were furnished by the order of Samuel G, Bailey, the captain of tha t ship. While the vessel was receiving her repairs, one Nathaniel G. Minturn, (who it afterwards appeared was the owner of the ship, but bad'mortgaged her to the defendant,) was occasionally at the yard of the plaintiffs, and a bill of the repairs was rendered to him in the month of December, 1827, or in January, 1828. No bill was ever presented to the defendant; but Minturn had given his note to' the plaintiffs for the amount of the repairs, and had become insolvent before the commencement of this action. The note, however, had never been paid by Minturn, and was produced in Court by the plaintiffs. The defendant, it also appeared, was never present while the repairs were in progress, nor was payment ever demanded of him ; but Minturn had a general account with the plaintiffs for the repairs of the vessel. It further appeared from the plaintiffs’ evidence, that the ship was registered on the 15th day of October, 1824, and that at the time of such registration, the defendant had made “ affirmation,” according to the act of Congress, that he was the “ true and only oimer” of said ship. It also appeared that no change had taken place in the ship’s papers at the Customhouse, after the registry, although the act requires an oath or affirmation, similar to the above, upon every entry of the vessel, The ship had been conveyed to the defendant by Minturn, in the month of October, 1834, and had performed at least two voyages., a year, ever since ; but Minturn had received her freight money, and she had sailed at bis sole expense. It also appeared that the defendant had once offered to sell the vessel, and that in the month of August, 1838, he had refused to permit her to go upon a certain voyage.
    The defendant, on his part, produced the bill of sale whereby the vessel was transferred to him by Minturn, and then called Minturn himself as a witness. He was objected to by the counsel for the plaintiffs, as interested and incompetent; but the objection was overruled by the Judge. Being sworn on his voir dire, he testified that he had no interest in the cause; and being then sworn in chief, he testified, that on the 15th day of October, 1824, he was, and for a long time before, had been, the owner of said ship. On that day, he borrowed of Franklin and Minturn, (a firm of which the defendant was a partner,) the sum of $6000, in their endorsements, and gave to the defendant the bill of sale in question, as collateral security for the loan. Afterwards, in the month of Martih, 1825, the defendant gave to Minturn a memorandum in writing, in which he acknowledged that he held the vessel as collateral security for said endorsements. This paper was produced at the trial by the witness, and the counsel for the plaintiffs objected to its being read. The objection was overruled, however, and the memorandum submitted to the jury.
    The witness then further testified, that the defendant had never been in possession of the ship, and had never exercised any control over her in any way, except in the month of August, 1828, when he refused to permit her to go to sea until his claim was satisfied. The witness himself had alone exercised all the acts of ownership over the vessel, and it was at his request that the repairs were made, he having directed Bailey (the master) to cause them to be made. Jonas Minturn, the partner of the defendant, died in 1827, and aftér his death, the defendant paid the notes endorsed by their firm for the witness.
    The defendant (the witness also testified) always held the bill of sale as collateral security, and the vessel had been sold by the witness to pay the demand of the defendant, who gave a bill of sale of her to the purchaser. The witness himself had always acted as the owner of said vessel, and he did not inform the plaintiffs, during the progress of the repairs, that she was held by the defendant as mortgagee.
    The defendant also called Benjamin G. Minturn, as a witness, who testified that he was privy to the arrangement between the defendant and Nathaniel G. Minturn; that the vessel had always been held by the defendant as collateral security for said loan, and that the defendant had never been inpossession of her, nor acted as owner. The vessel had always been in the possession of Nathaniel G. Minturn, and he had constantly acted as her owner. This evidence was also objected to by the plaintiffs’ counsel.
    The plaintiffs then proved, that it was not their practice always to make inquiries after the owners of a ship sent to them for repairs, but the bills were most frequently paid by the captains, who ordered the work to be done.
    Upon this evidence, the Judge charged the jury, that if they believed the defendant was the absolute owner of the vessel, or the mortgagee thereof in possession, they ought to find a verdict for the plaintiffs ; but if they believed that the defendant was a mortgagee merely, and out of possession, then their verdict should be for the defendant.
    The jury returned a verdict for the defendant; and the counsel for the plaintiffs having excepted to the charge, moved for a new trial.
    The cause was now argued by Mr. P. W. Radcliffe, for the plaintiffs, and by Mr. J. Anthon and Mr. D. B. Ogden, for the defendant.
    For the plaintiffs, it was contended,

      I. That the bill of sale from Nathaniel G. Minturn to the defendant, being absolute, upon its face,- parol proof ought not to have been admitted to explain, vary, or contradict it.
    II. The defendant having sworn at the Custom-house, that he was the owner of the vessel, and having taken the requisite oath each time when the vessel was cleared out and entered, and the register of the vessel being in his name, no evidence ought to have been admitted to explain, vary, or contradict the same.
    III. That the bill of sale and oath taken by the defendant at the Custom-house, at the time of the transfer of the vessel to him, and the oaths taken by the defendant at the Custom-house, at each time of clearing out and entering the vessel, together with the register of the vessel in the name of the defendant, were conclusive evidence of the ownership of the defendant.
    IV. That the memorandum given by the defendant to Nathaniel G. Minturn, ought not to have been read in evidence ; 1. because it was not under seal. 2. It was made subsequent to the bill of sale.
    V. Nathaniel G. Minturn ought not to have been admitted as a witness. 1. Because the defendant could not show by him that the paper presented at the trial was intended and meant as a mortgage. 2. Because he was interested.
    If the plaintiffs prevail, the witness will be compelled to pay a debt to the defendant, who is, according to his admission, a mere mortgagee. If that be so, then Franklin is a trustee for Minturn, and the latter will be liable to the former for all the consequences of this defence ; and if the plaintiffs recover, Minturn must pay the costs of this suit as well as the debt. If his interest in other respects is balanced, he is still interested as to the question of costs, and therefore incompetent. The competency or incompetency of a witness, does not depend on the amount of his interest in the event of the suit, but upon the fact, whether he is interested at all. Perhaps it may be said, that the facts sworn to by Minturn, were proved by the testimony of other witnesses. But this will not excuse the admission of an incompetent witness ; for the rule is settled, that if one incompetent witness be permitted to testify, there must be a new trial, extan although fifty other witnesses may have sworn to the same" facts. [Marquand v. Webb, 16 Johns. R. 93. Hubly v. Brown, Ibid. 70. Phil. on Ev. vol. I. 48, 54, 56. 2 Day's Rep. 399.]
    VI. The defendant (even admitting that the paper, claimed to be a mortgage, was admissible, as exddence) had a right to the possession of said x^essel at any time, the papers not prohibiting such possession. The evidence shows that the defendant had possession of the vessel, and did control her. When Min turn was about to despatch her upon a voyage which he had projected, the defendant asserted his rights as owner, and refused to permit the vessel to go to sea. He took actual and potential possession of her, and maintained it until the ship-was sold. He became oxvner in possession in fact, as well as in law, and is subject to all the obligations of an owner.
    The possession of the vessel by Nathaniel G. Minturn, if he could be deemed to he in possession, was inconsistent with the bill of sale, and the paper claimed tobe a mortgage or defeasance of said bill of sale. The bill of sale xvas absolute upon its face, and it could not be known to the xvorld, that any other person, except the defendant, had any claim of oxvnérship upon the vessel, Minium’s possession, therefore, is to be deemed to have been the possession of Franklin by his agent, and the plaintiffs’ rights cannot be prejudiced by any secret arrangements between those parties.
    VII. Under the circumstances of this case, the defendant is liable for the debt, even if.he were but a mortgagee, whether he was in possession or not. [15 Johns. R. 298. 15 Mass. R. 477. 2 Con. Rep. 215, 222, 224. Abbot on Ship. 18.].
    It may be said, that the plaintiffs are precluded from any right to pursue the defendant, because they took the note of Mintum for a sum of money due from him, including these repairs. There is no force in that objection, for the note was never paid ; it was brought into Court at the trial, ready to be cancelled, and the plaintiffs may waive the note, and proceed upon the original cause of action. This is well settled. [7 Johns. R. 311. Toby v. Barber, 5 Ibid. 68. Whitbeck v. Van Ness, 11 Ibid. 409.]
    But the defendant was liable for these repairs, at all events, whether in actual possession or not; and the law will not permit an individual to screen himself from a responsibility of this nature, by ail assertion, that his real rights are not, in truth, what they purport to be. The defendant received from Miuturn an absolute, and not a qualified title to the vessel. If he were mortgagee merely, and if he took the title as collateral security for a pre-existing debt, why did he not state that fact upon his bill of sale ? Why did he not, like other mortgagees, state upon the face of his conveyance the real interest received by him, that the rights of Minium to the property might be known to creditors? This loose mode of conducting business of an important nature, ought to be corrected, and the defendant had no right, legal or moral, to assume an appearance before the world, which had a tendency to deceive the plaintiffs.
    The defendant in this case, however, went yet' farther than his mere paper title ; he pursued all the steps necessary to perfect his title under the laws of the United States. The acts of Congress relative to the registration of vessels, (Graydon’s Dig. 396,) make no reference to the rights of a mortgagee, and his title need not appear at the Custom-house. But when the title to a vessel is changed, the law imperatively requires the person who becomes the purchaser to make solemn oath, that he is the sole owner of the vessel; and if a foreigner be a part owner, that fact must also appear. In short, the truth of the case must be disclosed at the Custom-house under oath, and this Court is now to decide whether there is any meaning in those oaths.
    Again: whenever a vessel is cleared out for a foreign voyage, and whenever she returns, other oaths are required of the owner„ These were all freely taken by the defendant, who on all those occasions asserted his own absolute title to the vessel. He is therefore precluded from presenting himself before the Court in any other character than that in which he has constantly maintained under the laws of. his country. His oaths are conclusive against him, and he is estopped from denying that ownership which he has so solemnly claimed.
    We contend, that the owner of a vessel is liable to shipwrights _ for repairs, whosoever that owner may be ; and the only fact to be ascertained is, whether the defendant was the owner. The jury, it is true, have passed upon a part of the facts; but the plaintiffs are not prejudiced thereby, because they objected to all the testimony which was laid before them.
    Questions relating to the obligations of mortgagees of vessels, for repairs, have been frequently before our Courts, but this precise case has never been presented nor decided in this state. In Connecticut and Massachusetts, however, their Courts have passed upon the liability of the mortgagee under like circumstances, and have held him responsible. [Starr et al v. Knox, 2 Con. R. 222, 224, 215. Tucker v. Buffington, 15 Mass. R. 477.] And we contend that the principles established by our own Courts, fully support the claims of the plaintiffs. [Leonard v. Huntington, 15th John. R. 298. Marquand v. Webb, 16 Johns. R. 92.]
    The case of Champlin v. Butler, [18 Johns. R. 169.] cannot strengthen the defence, for it has no reference to the rights of innocent third persons. That was an action for master’s wages ; this is for repairs entering into the value of the vessel, whereby the defendant gains an immediate an,d direct advantage. The proceeds of the plaintiffs’ labour passed directly into the pocket of Franklin when he sold the vessel, and he is under every moral obligation, to hold the plaintiffs harmless. In the case of Champlin v. Butler, there was a covered, collusive voyage, well known to the master, and he contracted with the very parties who kept themselves from public view.

      Mr. Anthon and Mr. Ogden, for the defendant, contra, contended,
    I. That the mortgagee of a vessel, out of possession, is not responsible for repairs. Whatever may be the speculations upon this point in other states or countries, the law here is settled. [8 Johns. Rep. 159. 18 Ibid. 169.] The case of McIntyre v. Scott, [8 Johns. R. 159,] is in every respect like this, except in one unimportant particular. In that case, the party who received the bill of sale did not take out a register in his own name, until towards the close of the transaction. But that is not a matter of any consequence, because the register has nothing to do with the evidence of title. It has reference merely to the revenue laws, and the national character of the vessel. [Leonard v. Huntington, 15 Johns. R. 298. Sharp v. The United Ins. Co., 14 Johns. R. 201.]
    II. The true question to be determined is, whether the defendant was absolute owner, or mortgagee ; and upon this point the testimony was conclusive to show that the defendant was a mere mortgagee out of possession, to whom no credit was given by the plaintiffs, The evidence upon this question was submitted fairly to the jury, and they found for the defendant. This makes the distinction between the case under consideration and that of Tucker v. Buffington, [15 Mass. R. 477,] cited by the opposite side. In that case, the mortgagee was in possession; if so, he was entitled to the freight, and would be liable for repairs ; but being out of possession, the mortgagee receives none of the vessel’s earnings, and is not bound for her repairs.
    Much stress is laid upon the fact, that the defendant took the usual Custom-house oaths; and it is contended that he is concluded by them. The defendant was bound to make those oaths, else the vessel would have lost her national character; and besides that, the legal title was in him. There is ho mode by which a mortgagee’s interest can be made safe, except by an absolute bill of sale, for his rights as such are not known or regarded at the Custom-house. But this point has also been before a most intelligent and learned Judge, and has been decided upon principle. It may therefore be considered as settled in favour of the defendant. [1 Mason’s Rep. 306, Weston v. Penniman.]

    If the defendant had held himself out as owner, for the purpose of procuring credit for the vessel, or even if the plaintiffs, before they made the repairs, had ascertained by the register at the
      Custom-house, who the owner was, for the purpose of giving ¡dm credit, then the question might have been different. But the proof conclusive, that the only person trusted was Nathaniel G. Minturn, and that the defendant’s claim upon the vessel was not known until after the repairs were made. Upon every point, therefore, of law and fact, the case is with the defendant.
    III. N. G. Minturn was a competent witness, his testimony having the effect of charging himself. His interest is balanced; he must pay one party or the other, and it is a matter of indifference to him which he pays. How can Minturn be liable for costs 1 If the defendant was the absolute owner of the vessel, or if he was a mortgagee in possession, he is bound to pay for the repairs without suit, and cannot cast the costs of the defence on Minturn. If the defendant was a mortgagee out of possession, he cannot be compelled to pay, and of course no costs can fall upon him. Min-turn never directly or by implication undertook to hold the defendant free from every attack which third persons might choose to make upon his rights. If the title were impeached, it would be another matter.
    IV. The defeasance being prior in date to the plaintiffs’ claim a, it was correctly received in evidence as part of the res gestee. The defeasance existed in parol long before it was reduced to writing, and was even then good. But if the sale in the first instance had been absolute, the defeasance would have converted it into a mortgage. The plaintiffs were not prejudiced by this, the repairs being put upon the vessel by order of Minturn, who exercised all the acts of ownership. The essence of the contract between the defendant and Minturn, in relation to the ship, was that Franklin should be secured for his loan by a mortgage. If the defendant had done any act inconsistent with Minium’s rights as mortgagor, it would have been not only a violation of his contract, but of good faith. It is not essential that the defeasance should be executed at the time of the conveyance, or that it should be under seal. There is no objection, therefore, to the proof upon this point, as offered at the trial.

      V. Benjamin G. Minium’s testimony xvas unobjectionable, he being privy to the transaction from the beginning, and testifying to facts within his own knowledge.
    VI. The Judge submitted the whole case correctly to the jury, and their finding was consistent with the evidence.
   Jones, C. J.

This was an action by the plaintiffs in this suit against the defendant, for work, and labour, and materials found, &c., in repairing the ship Concordia, when she stood in the name of the defendant as ostensible owner, and the defence was, that the defendant was mortgagee out of possession, and therefore not answerable to the plaintiffs for the repairs done by them to her. The question of absolute or qualified ownership, and the fact of possession, were the chief points of litigation at the trial, and to which the testimony was exclusively pointed. The Judge charged the jury, that if they were satisfied that the defendant was the owner of the ship, or mortgagee in possession, at the time the work was done, the plaintiffs were entitled to recover; but if the jury, from the evidence, believed that the defendant was not owner, but was a mortgagee, and out of possession, then they ought to find for the defendant; and under this charge, the jury gave their verdict for the defendant.

The plaintiffs now move to set that verdict aside, and for a new trial, insisting that the admissible evidence showed the ownership of the Concordia to have been in the defendant, and that the evidence which went to disprove his title as owner, and to show his interest to have been that of a mortgagee, xvas inadmissible; and also insisting further, that if he was in fact clothed with a mortgage interest solely, he appeared by the evidence to have been in the possession of the vessel, and to have exercised acts of ownership and a control over her, or to have possessed the undisputed right to the possession and control of her, and was, on either ground, chargeable xviththe repairs; and moreover contending broadly, that even if the defendant was a mortgagee out of possession, he was still responsible as the legal owner; or if the general rule were otherxvise, that this case would form an exception, and the defendant would be liable upon the special ground, that the repairs in question had'enured to his benefit, by enhancing the value of his security.

The first question then is, whether the defendant, was, in judgment of law, the absolute owner of the ship, or mortgagee, or trustee only, at the time the work was done.

The plaintiffs, to establish the ownership of the defendant, produced and proved the Custom-house register of the ship, with the affirmation of the defendant, that he was sole owner, by which document so produced, it appeared that a new register had been issued for her, on the 15th of October, 1824, her previous register, issued on the 27th of August next preceding, being then surrendered, in consequence of a change of property. The new register was issued at the request of the defendant, and upon his affirmation that he was the sole owner of the ship, and she vvas thereby registered in the usual form, as the sole property of the defendant. The affirmation of the defendant, when he applied for and obtained the register, was also produced, by which it appeared that he, on the same 15tli of October,1824, affirmed, in the usual form, that he then was the true and only owner of the ship, and that there was no subject or citizen of any foreign prince or state, directly or indirectly, by way of trust, confidence, or otherwise interested therein, or in the profits or issues thereof. And it was proved that mo change had taken place in the registry, intermediate the date, and issuing of the same, and the time the work was done.

To refute this documentary proof of ownership, the defendant produced and read in evidence a bill of sale of the ship from Nathaniel G. Minturn to him, the defendant, bearing date the same 15th of October, 1824, and being on the face of it an absolute transfer of the ship to him. He then called Minturn, the apparent vendor, to prove that the bill of sale, though absolute in its terms, was given to him, the defendant, and taken by him as collateral security for a loan of six thousand dollars made by Franklin and Minturn to Nathaniel G. Minturn, the owner oí the ship. The witness was objected to, as incompetent to testify to that point, and as being interested. He testified on his voir dire that he had no interest in the event of this suit; and not being deemed by the Court, to be otherwise incompetent, he was admitted to testify in chief.

He proved that he was the owner of the Concordia on the 15th of October, 1824, and on that day borrowed of Franklin & Min-turn, of which co-partnership the defendant was a member, the sum of $6000, in the endorsements of their house, and gave the bill of sale of the ship to the defendant, as collateral security for the loan ; and that the defendant, afterwards,.on the 29th March following, to manifest the trust, gave a written acknowledgement as evidence of the contract. The instrument was produced, and being proved by the witness, was offered in evidence. The counsel for the plaintiffs opposed its reception, on the general ground, that the bill of sale being absolute in its terms, evidence was not admittable to contradict, vary, or explain its import, by showing it to be defeasible; and upon the special grounds, also, that it was not under seal, and was not executed simultaneously with the bill of sale, but after an interval of upwards of five months. It was, however, allowed to be read to the jury, subject to the objections to its competency. We are now to decide upon its title to admission in evidence.

First, then, could it be received to show that the bill of sale which professed and purported to be evidence of absolute ownership in the defendant, was in reality a security only for a loan from his house to Minturn 1 The general rule is, that a deed must be construed by itself, and that extrinsic evidence cannot be received to explain, vary, or contradict its sense or import, as collected from the terms it employs.

But the case of a mortgage or trust interest has long been an established exception to the rule; and the competency of extrinsic proof, to show that an absolute deed is to operate as a security for a loan, and not as an absolute conveyance, has been so often and so universally admitted, both in courts of law and equity, that it has grown up into an elementary principle of the law of mortgage. It is a principle peculiar to mortgages and trusts. Courts consider it as a necessary safeguard to borrowers, and a rule of evidence which policy and a sense of justice require them to apply, and to which even the solemn and conclusive nature of deeds must bend. The deed is treated with all the respect and deference which can consist with a just regard to the protection of the borrower, and the extrinsic evidence is not received to qualify the deed, but to establish the fact of the loan; and it is the proof of the loan, on the security of the property vested by the deed in the vendee, that renders the deed thus given to secure it, a defeasible conveyance. The decisions of our own Courts are decisive on the point. In Marks v. Pell, [1 Johns. Ch. R. 594,] and in Strong v. Stewart, [4 Johns. Ch. R. 167,] it was ruled that parol evidence is admissible to show that a mortgage only, and not an absolute deed was intended. And in Henry v. Davis,[J. C. R. 90,] it was held, that a conveyance of real estate intended merely as a security for a debt, though absolute on the face of it,is a mortgage. The same principle was established in the Court for the Correction of Errors, in the case of Dey v. Dunham, [15 Johns. R. 555.]

The rule obtains equally at law as in equity, and both in England and in this country, it is an axiom that it is always competent to show that a transaction, appearing on the face of it to be a sale, was in fact a loan, and that the proof of the loan gives to the deed which is intended to secure it, the character of a mortgage. It is not essential that the defeasance should be by deed to produce that effect upon the absolute conveyance. The cases already cited conclusively show that the agreement which operates as a defeasance, or which, in other words, establishes the loan that produces that effect, may be without seal, or even by parol. Nor is it necessary that the declaration or defeasance, if in writing, should be executed simultaneously with the deed. In the case of Dey v. Dunham, the written defeasance was not given until six months after the deed was executed, and it embraced a subsequent loan and security, but the parol agreement for the loan on the security of the deed, was contemporaneous with the deed ; and that agreement operated to qualify the deed, and characterize it as a conditional and defeasible conveyance.

So in the case at bar : the agreement by parol for the loan upon the security of the ship, which preceded the bill of sale, impressed indelibly upon that instrument the character of a trust, or collateral security for the debt, and the subsequent declaration in writing merely manifested the prior agreements, and preserved the evidence of it, by reducing it to writing. In strictness, however, the parol agreement for the loan, and the subsequent writing, did not create a mortgage-interest: for the condition must be in- ° corporated m the conveyance, or a written defeasance must be executed simultaneously with it, to constitute a technical mortgage; but that agreement created a trust which attached to the title vested by the bill of sale in the lender of the money, and which bound his conscience to hold the ship as a collateral security for the debt, and not as absolute owner of the property. This trust was in substance a mortgage-interest, though the conveyance was not in form a mortgage, and equity would enforce it, if sufficiently established by proof, notwithstanding that it was by parol ; or if any question could be made of the legal obligation of the lenders, on the ground of trust from the application of the statute provisions to the case, the subsequent declaration of the trust in writing, was sufficient to satisfy the terms of the act, and to establish the trust. The statute only requires that the trust shall be manifested by a declaration in writing, not that it shall be created by deed ; and it is well settled, that any writing expressing and declaring the trust, whether it be made at the time of the execution of the deed, or after it, will be sufficient evidence of the trust to entitle the cestui que trust to the aid of the Court in enforcing its performance, and that it is not necessary that the trust should be declared at the time it is created.

The case of Steere v. Steere, [5 Johns. Ch. R. 1,] is in point to show, that a trust need not be created by writing, and that when by parol it is sufficient to take it out of the statute, that it be manifested and proved by writing, under the hand of the party to be charged as the trustee. The solemnity of a seal to the declaration of trust, is not required to impress an absolute deed with the trust which that declaration manifests, and it is sufficient that the written declaration is made before the trust is sought to be enforced. The writing, therefore, which the defendant in this case gave to Minium in March, was a sufficient manifestation and proof of the trust of the bill of sale executed by him in the preceding October, and it was competent evidence to show that the bill of sale. under the previous proof of the fact of the loan on the credit of the vessel, though absolute in terms, was merely a collateral security for the loan made by Franklin & Min turn upon the credit of it. If that evidence was admissible; it must surely be conclusive, for it is clear and positive.

But it was intimated that this evidence was only admissible to qualify the deed as between the parties, and could not affect the right of strangers. I can discover no line of distinction between parties and strangers, in the application of the rule. The question is, whether extrinsic evidence can be received to show that the transaction was a loan on the credit of the ship, as collateral security, and not a purchase of the vessel, and if the terms of the deed do not estop the party who receives it from showing that it was not a sale, but a pledge for a loan, he cannot be precluded from the benefit of that proof in a controversy with a party who seeks to charge him as absolute owner. If indeed, a stranger should be deluded or misled by this ostensible ownership of the vendee, and actually supply the ship on the credit of his responsibility, a question of some delicacy would be presented, which, however, would involve considerations beyond the mere fact of apparent title in the party. But it is not pretended that the plaintiff in this case has any such ground .of complaint, for it does not appear that he had any knowledge of the bill of sale, or gave any credit to the defendant. His right of recourse to the defendant, if he has any, results from the legal obligation of the defendant as owner of the vessel, or must rest upon the other grounds of liability imputed to him in his character of trustee or mortgagee. If he was, in judgment of law, the absolute owner, his obligation would be perfect, whether his ownership was known to the plaintiffs or not; but if he has disproved the charge of ownership, he has excused himself from the obligation which that relation would have imposed upon him.

It was strenuously urged that the register of the ship in his name, and his affirmation of the sole ownership of her, estop him from disclaiming his title as owner, and some irregularity of conduct seems also to be imputed to him in assuming that character. I see no just ground for reprehension in the change of the papers at the Custom-house, nor any sufficient reason for the estoppel which is supposed to conclude him. The transfer of the register to himself might be necessary to his security, and the affirmation he made of sole ownership, indispensable to that transfer. That affirmation was true, for he was the sole owner in whom the whole legal title was vested by the bill of sale. His title was affected by the trust for Miuturn, but that trust was a beneficial interest, and not a legal title; and it was strictly true that no alien was interested directly or indirectly in her, and his affirmation goes no farther than to deny the interest of aliens. I discover nothing in the affirmation, or the register inconsistent with the defence he now makes. He was the true and sole owner of the ship; but he held her in trust for Miuturn, and every trustee is equally the owner of the trust estate which is vested in him.

Neither the terms of the registry act or of the revenue laws, nor the policy of the system, appear to me either expressly or by implication to exclude trusts of vessels for citizens, or to require the disclosure of such trust by the trustee. It was the secret interest of foreigners in American vessels, that Congress meant to prohibit, and against which the provisions of the act are intended to guard,—and in that spirit the oath plainly draws the distinction between the citizen and the foreigner. It prescribes a searching form of denial of all possible interest of aliens; but it confines that denial to aliens, and thereby impliedly allows the subsistence of such interests in citizens. The other provisions of the acts to which we are referred obviously contemplate the case of part owners in whom the legal title to the ship is partly vested, or whose names appear upon the bill of sale or the registry, and not to mere cestui que trusts whose title or interest the statutes disregard.

I am satisfied therefore, that the defendant was not incorrect in his acts at the Custom-house, and ought not to be estopped by those acts, or his affirmation of title in himself, from shewing the truth of the transaction. And the disclosures he has made appear conclusively to shew that he was not the absolute owner of the ship, but held her in trust, as security for the loan made by his house on the credit of her.

The next enquiry is, whether he was in possession of her during the time that the repairs were put upon her by the Plaintiff: and the testimony appears to me equally clear and decisive against the fact of possession, as against the absolute ownership of the defendant. Minturn, who best knew the facts, testifies positively that he had himself the exclusive posssession and sole charge and management of the ship, during the whole period in question, and that the defendant never took possession of her or had any charge or agency concerning her, or exercised any control or ownership over her, until the interference to prevent the the voyage to Turks Island, about a month before the commencement of this suit. B. G. Minturn and the master confirm and corroborate his statement, and the testimony of the plaintiff conduces to the same result.

In opposition to this strong current of oral testimony, the acts of the defendant in taking the title and changing the register, and the part he took in clearing out the ship for her voyages, with his interdiction of the projected voyage to Turks Island, and his subsequent sale of the vessel, are the only proofs of possession relied on. What do they weigh? The change of papers was important to his security ; and the clearance of the vessel was necessary to her. employment—they were mere formal acts entirely consistent with his character as Trustee, and were no evidence of actual possession in him, not inconsistent with the possession of the cestui que trust. The interdiction of the voyage to Turks Island and the sale of the ship, were acts of possession as well as as ownership, but they were long subsequent to the repairs for which the plaintiff sues, and were acts done with intent to wind up the concerns of the trust,, and were the necessary means for enforcing his security and realizing his debt. He did not take possession of the ship for the purpose of employing her, but for the purpose of sale, and he cannot be charged by that possession with the debts antecedently contracted. ’

Upon the whole I see no reason for setting aside the verdict..—. The charge of the Judge was strictly correct in point of law, and the jury have found a verdict which is fully supported by the evidence. The motion for a new trial must therefore be denied.

Oakley, J.

This was an action for repairs done to the ship Concordia, between the 10th day of September, 1827, and month of June following. The repairs were ordered by the captain of the vessel, but the evidence clearly shows that they were in fact made on the credit of Minturn. A bill of the repairs was rendered to him, and his notes taken for the amount, which were partly paid. There is no proof, that the plaintiffs, at the time of making the repairs, knew that the defendant had any interest in the vessel; no account was ever rendered to him, nor was any demand ever made on him for payment. After the failure of Minturn, this action was brought with the view to charge the defendant, as owner of the ship.

It appeared in evidence, that for a long time previous to the 15th of October, Minturn was the owner of the ship. On that day he executed to the defendant an absolute bill of sale of the vessel, and the ship’s papers were changed at the custom-house. The defendant made the usual oath of ownership, and the vessel was registered in his name, and continued to be registered in his name until after the commencement of this suit. It was clearly proved, however, that the bill of sale was given as a mortgage, to secure to the defendant a large sum actually loaned to Minturn on that day ; and was so understood and agreed to be, by the parties at the time it was executed. That the defendant, on the 29th of March, 1825, signed a written agreement, and delivered it to Minturn, setting forth that the transfer of the ship to him, was as security for the said loan, and engaging to reconvey the same on payment of the money. It also clearly appeared that the defendant never had possession of the ship, and never received any of her earnings, and never in any manner interfered with the control of the vessel by Minturn, until long after the repairs in question were made. The vessel was always cleared out at the custom-house by Minturn, the defendant making on those occasions the necessary oaths as registered owner.

The plaintiffs contend, in the first place, that parol evidence was inadmissible, to show that the bill of sale was intended as a mortgage. This point seems to be decided in the case of Champlin v. Butler, [18 J. R. 169.] In that case, as in the present, there was an absolute bill of sale, and parol evidence was admitted to show that it was intended as a mortgage. In the present instance, however, it would seem unnecessary to rely on the parol evidence of the understanding of the parties at the execution of the bill of sale. On the supposition that it was then an absolute sale, it was certainly competent for the parties, by a subsequent written agreement, to convert it into a mortgage. This was done by the instrument of the 29th of March, 1825, and long before the repairs in question were made upon the vessel.

It is in the next place contended by the plaintiffs, that the oath of the defendant, and the registry of the vessel at the customhouse, are conclusive evidence of ownership of the vessel in him. The law has been decided to be otherwise. It has been repeatedly held, that the registry at the Custom-house does not determine the ownership of a vessel, and that its object is merely to show her national character, and to entitle her to the advantages secured by the laws of the United States to vessels of our own country. [Sharp v. United Ins. Co. 14 J. R. 201. Leonard v. Huntington, 15 Ib. 302;] And in Weston v. Penniman, [1 Mason, 318,] it is considered by Judge Story, that a mortgagee of a vessel may declare himself the legal owner, for the purpose of the registry acts, without in any manner altering the relations existing between him and the mortgagor. The defendant, then, is not concluded by registering the vessel in his own name, because the act is consistent with his character as mortgagee, and is open to explanation, in the same manner as the bill of sale.

The defendant, then, being mortgagee of the ship out of possession, as found by the jury in this case, the law seems to be clear that he is not liable for repairs, unless they are made upon his credit, or by a special contract with him. It was so expressly held by the Supreme Court in McIntyre v. Scott, [8 J. R. 159,] the leading circumstances of which case were very similar to those of the present; and the doctrine of that case has been repeatedly recognized since. [Champlin v. Butler, 18 J. R. 169. Leonard v. Huntington, 15 J. R. 298. Thorn v. Hicks, 7 Cowen’s R. 697.] These cases settle the point too clearly to admit of doubt.

The plaintiffs have further insisted, that Minturn was an incompetent witness, on the ground of interest. The plaintiffs sought to charge the defendant as owner of the ship. After they had offered prima facie evidence of that fact, the defendant proved the sale of the ship by Minturn to him, which on its face was absolute, and then called Minturn as a witness. He was objected to as incompetent. As the case then stood, there was, clearly, no ground for the objection, and it was properly overruled. He was then sworn on his voir dire, and stated that he had no interest in the controversy, and was then sworn in chief.

When the witness was sworn in chief, there certainly was no ground for rejecting him as interested. His relation to the vessel had not appeared. Apparently he had parted with all right to her, and as he then stood, was manifestly interested to fix the expense of the repairs on the defendant, by which he might have discharged himself from the plaintiffs’ claim on him. On the supposition that his testimony shewed him interested, in any degree in favour of the defendant, I do not find that the Judge was requested to exclude it from the case, or to instruct the jury not to regard it. Under such circumstances, as the defendant’s whole case was clearly proved by other witnesses, I do not think that a new trial ought to be granted, though Minturn should be considered as an incompetent witness.

His incompetency, however, is supposed to consist in this. Showing himself to be the mortgagor of the ship, and in the exclusive possession of her, it is contended, that in case of a recovery by the plaintiffs, he would be liable to indemnify the defendant against the costs of this suit, and that such an interest excludes him as a'witness, on the authority of the case of Hubbly v. Brown. [16 J. R. 72.] I cannot perceive how the defendant in this case stands in the relation of surety for Minturn, for the repairs made to the vessel. The defendant, if liable at all, is so as owner, or mortgagee in possession. If liable in either character, he was bound to pay in the first instance, on the ground that the contract for the repairs, in judgment of law, was made directly between him and the plaintiffs. He could then have no pretence to call on Minturn to indemnify him against costs. He might charge him with the amount paid for repairs, as an expenditure on the vessel, while in his possession, but could not demand the costs of a suit, which was the consequence of his own default.

The witness, in my opinion, was equally liable to either party, for the amount of the plaintiffs’ demand, whatever may be the issue of this cause, and was therefore a competent witness for either.

Motion for a new trial denied.

[E. Anthon, Att'y for the deft.]


author: Oakley, J.

text:
    The Niagara Insurance Company, versus John Searle, George Barclay, George Chance, Francis Baretto and Robert Bayard.
    The plaintiffs loaned to the defendant Searle, $15,000 upon goods on board the brig Ocean, whereof S. was master, and received from the defendants a respondentia bond as security for that loan. The vessel was bound from New-York to Calcutta, and from thence back to New-York, with liberty to touch at Madeira on the outward passage. By the first condition of the bond the vessel was to proceed with all convenient speed on her voyage, which was to terminate -within 18 months ; II. She was to have on board during the whole voyage the stipulated amount of property ; III. The voyage was to be performed without deviation ; and by a further condition the defendants were to pay the g 15,000 on the return of the vessel, or at the expiration of 18 months from the date of the bond, whichsoever should first happen.
    The time stipulated in the bond being expired and the vessel not having returned, the plaintiffs brought an action of debt on the bond, to which the defendants (with the exception of Searle, who was not arrested,) pleaded that after the brig -sailed on her voyage, and before she arrived at Calcutta, the plaintiffs, in consideration of an additional premium of $300, agreed with the defendants, as
      sureties for Searle, that the vessel should have liberty to proceed from Madeira to the Canaries, and a port or ports in South America, India or elsewhere, and from thence to a port in the United States. That the vessel proceeded from Madeira on the voyage last mentioned, was then prosecuting it with all reasonable dispatch, and had not returned to the United States at the time the action was commenced.
    Upon demurrer to these pleas it was held that the new agreement made with the sureties, did not vary or alter the terms of the original contract any further than to preclude the plaintiffs from taking any advantage of a deviation from the voyage prescribed in the condition of the bond. It authorised a change in the course of the voyage hut did not extend the time for its performance, and the plaintiSs had judgment on the demurrer.
    As the new contract was not under seal, quere, whether the terms of the bond could be varied by the parol agreement 1 And if so, whether the pleas themselves are good ?—
    This was an action of debt upon a respondentia bond, bearing date the 25th day of August, 1826. The defendant Searle was returned by the sheriff “ not found,” but the other defendants appeared and craved oyer of the bond and its condition. The bond was in the ordinary form for the payment of money ; but from the recitals in the condition it appeared that the plaintiffs had lent and advanced to John Searle, the sum of $15,000, upon goods, wares, merchandise and specie, to that amount laden on account of Searle, on board the brig Ocean of New-York, whereof he was master : which goods, waves and specie, and the proceeds and returns thereof, were hypothecated and mortgaged to the plaintiffs, for the faithful performance of the condition of the bond. That the said vessel was bound on a voyage “ from New “ York to Calcutta, and from thence back to New-York, with “ liberty to touch and trade at Madeira, on the outward passage.” That the plaintiffs were “ to stand and hear the risks against “ which the said company usually insure by their cargo-policies, “ on the said sum, so lent and advanced on the said goods,” “ dur- “ ing the said voyage,” provided the same did not “ exceed the “ term of eighteen calendar months, to be computed from the day of the date” of the bond. The condition of the bond provided, that the vessel should proceed with all convenient speed on her voyage and return to New-York, with the amount in value above ‘Stipulated on board: “ to end her voyage at New-York, by or be- “ fore the end or expiration of eighteen months, from the date” of the bond ; “ and that without deviation, the dangers and casual- “ ties of the seas excepted.” And if the defendants, or either of them, should pay to the plaintiffs, the above sum of $15,000, immediately upon the arrival of said vessel at New-York, or at the expiration of eighteen months from the date of the bond, whichever event should first happen, together with the sum of $2550, the stipulated marine interest and premium on said loan : or if the said defendants, or either of them, should immediately after the return and arrival of said vessel at New-York, provided such return should happen within eighteen months from the date of the bond, give security, satisfactory to the plaintiffs, to pay the said sums within three months from the time of such return, with lawful interest thereon from the time of such return, and should pay the same at the expiration of said "three months : or if in the said voyage and before the end of eighteen months, a total loss of the goods and specie, by the risks against which the company usually insure by their cargo policies, should unavoidably happen, and the defendants should abandon to the plaintiffs said goods and specie, and their proceeds, &c. ; then the obligation was to be void.
    The defendants who appeared were, in fact, mere sureties for Searle, and they interposed two special pleas in bar of the action. In the first they set forth, that the vessel sailed upon her contemplated voyage on the 6th day of August, 1826, having on board the goods and specie specified in the condition of the bond. That afterwards, on the twentieth day of February, 1827, before the arrival of the vessel at Calcutta, in consideration of an additional premium of two per cent on said sum of $15,000, paid by the defendants to the plaintiffs, the plaintiffs agreed with the said Francis Barretto, Jr., George Barclay, George Chance, and Robert Bayard, “ as sureties of the said John Searle,” that the vessel “ should have liberty to proceed from Madeira to the Canaries, and a port or ports in South America, India, or elsewhere, and at and from thence to a port in the United States.” That the said vessel having arrived at Madeira, pursuant to the liberty given, did, afterwards, to wit, on the 20th day of February, 1827, “ proceed from Madeira, in and upon the said last mentioned voyage, to the Canaries, and a port or ports in South America, India, or elsewhere, and at and from thence to the United States; and although the said brig from thence hitherto hath been, and yet is, prosecuting the said intended voyage last mentioned, with all reasonable diligence and despatch, according to the true intent of the liberty given as aforesaid, yet the said brig hath not as yet returned to, or arrived at a port in the United States.”
    The second plea alleged, that the said sum of $15,000 -was loaned and advanced by the plaintiffs to Searle, at his request and for his sole benefit, upon the terms and for the purposes mentioned in the condition of the bond, and that the same was executed by the other defendants as mere sureties for Searle, without interest or benefit to themselves, and for his accommodation, whereof the plaintiffs had notice at the time of making the loan. That the vessel immediately thereafter proceeded on the voyage specified in the condition of the bond, with the goods and specie on board, having liberty to touch at Madeira on her outward passage. That afterwards and before the arrival of the vessel at Calcutta, the said Searle advised the defendants, Barclay, Chance, Bayard, and Barretto, of his “ intention to deviate from the voyage,” in the condition of the bond mentioned, “ by touching at the Canaries, and some other port or ports after leaving Madeirawhereof the plaintiffs had notice on the 20th day of February, 1827. That the plaintiffs, in consideration of an additional premium of two per cent on said sum of $15,000, paid to them by the sureties, agreed with them that said brig should have liberty to proceed from Madeira to the Canaries, and the other ports mentioned in the first plea. That the said 'brig, after touching at Madeira, on the day and year last aforesaid, to wit, at the city and in the county aforesaid, set sail and departed on the said last mentioned voyage, from thence to the Canaries, to a port or ports in South America, &c.: and that although the said vessel from thence, had hitherto constantly pursued and prosecuted said last mentioned voyage, with all reasonable diligence, yet she had not yet arrived at a port in the United States.
    To these pleas there were separate general demurrers, and joinders therein. The counsel for the plaintiffs contended,

      I. That by the terms of the respondentia bond mentioned in the pleadings, the plaintiffs had a right, in the absence of loss by any of the perils insured against, to sue for the amount of the bond at the expiration of eighteen months from its date, without waiting for the termination of the voyage.
    II. That the alleged agreement of the 20th of February, stated in the pleas of the defendants, had at most no other operation or effect, than to authorise a deviation from the iter of the voyage described in the respondentia bond, and did not enlarge the time limited for its performance, and the payment of the money specified in the bond.
    III. That the pleas were defective, there being no averment' that the vessel had not deviated previously to the 20th of February, nor that she had on board the stipulated amount of goods at any time subsequent to her sailing from New-York.
    IV. The pleas state the supposed enlargement of the time by implication, and not by positive averments, and seek by an alleged agreement not averred to be under seal, or even in writing, to vary and alter the terms of a sealed instrument.

      Mr. F. Griffin, for the plaintiffs.
    As the contract originally stood, there can be no doubt as to the plaintiffs’ right of action. The money was repayable absolutely at the expiration of eighteen months from the date of the bond, unless the vessel was lost by some of the perils insured against. The stipulated time having expired, and no loss having occurred, the question is, how are the rights of the plaintiffs affected by the contract made in February, 1827 ?

    Originally, the designation of the voyage was distinct: the vessel was to proceed from Nevv-York to Calcutta, with liberty to touch and trade at Madeira on her outward passage. Under this agreement, if there had been any deviation from the voyage, the bond would instantly have become absolute, and it could not have been avoided by a subsequent loss.
    The time, also, in the first contract, was distinct, and independent of the designation of the voyage. It was contemplated that the voyage might last longer than the eighteen months, else it would not have been limited. The ending of the voyage, if it exceeded eighteen months, had nothing to do with the payment of the money, for that became due absolutely at the expiration of that period.
    The second contract altered one of these' independent properties or conditions, without touching the other; and the proposition cannot be maintained, that a change in the route of the voyage operates as a matter of course to enlarge the time.

    The fair mode of construing the amendment, is by ingrafting it on the original contract f and in this form, how would the whole agreement stand 1 The marine interest would be increased from two thousand five hundred to twenty-eight hundred dollars. The vessel, instead of being confined to the direct route to Calcutta, would have leave to go to the Canaries, to South America, or elsewhere ; but is the limitation as to time affected Í The course of the vessel is left free, and she may traverse what ocean she pleases, provided she do not exceed the limited period; but if the time be overleapt, the bond becomes absolute.
    In this particular, then, the contract stands, after the alteration, as it did before; it remains an insurance for eighteen months on the brig Ocean, and when that time expired, the money became due, and the insurance ceased, wherever the vessel might be.
    II. What was the object of the defendants in making the second contract 1 Undoubtedly it was to obtain permission for Captain Searle to deviate from his intended route, without endangering their rights under the original agreement. By the terms of that contract, he was forbidden to deviate; for every deviation increases the risk. He desired, however, to change the iter of his voyage, and according to the averments in the second special plea, communicated his wishes and intentions to the present defendants. The plaintiffs, then, for a new consideration, and an additional premium, consented that the iter of the voyage should be changed, but not that the time for its performance should be enlarged. This is a reasonable construction to be put upon the whole contract, and must coincide with the views of all the parties at the time the second agreement was made.
    The additional fact set forth in the second special plea, that these defendants were sureties, can make no difference in the construction. True it is, sureties are considered in some measure as entitled to the favour of courts, and will not be held responsible beyond the strict scope of their engagements. [Ludlow v. Simond, 2 Caines’ Cases in Error, 1.] But in ascertaining what their engagements are, the rules of construction as to them, differ in no respect from those which apply to their principals.
    III. The pleas themselves are defective. Both pleas aver, that the brig set sail from New-York on the 26th of August, 1826, on the voyage mentioned in the original bond. Both pleas take her up again at Madeira, and aver, that since that time, she has been engaged in pursuing the substituted voyage from that place; but neither of them contains any positive averment that the vessel had not deviated on her passage from New-York to Madeira.
    With regard to the averment that the vessel, in the course of her voyage, continued to have on board the stipulated amount of goods, the pleas are still more defective. All that is said upon this subject is, that the vessel set sail from New-York with the goods on board; but whether she afterwards continued to have them on hoard, does not appear.
    If, therefore, these averments, or either of them, are material, the pleas are defective. Are they material 1 The instrument is a bond, absolute in the penal sum of thirty thousand dollars. The penalty is to become void on certain conditions. One of these is, that the vessel shall pursue a certain prescribed voyage, without deviation. If she had deviated, that instant the penalty would have become absolute, whether the eighteen months had expired or not. [Western v. Wilding, Skinner’s Rep. 59, 152. Emerigon on Bot. chap. 8, sec. 4.]

      Another condition is, that the vessel should continue to have on board a certain stipulated amount of goods. If this condition was at any time violated, the penalty would on the same principle become absolute.
    The plaintiffs have declared on the penal part of the bond, and by the declaration it appears that the defendants are liable in the sum of thirty thousand dollars. The plea in order to avoid this, should aver a compliance with the conditions of the bond. [Com. Dig. tit. Plead. E. 25. 2. v. 13.—2. w. 33.—Langwell vs. Palmer, 1 Sid. Rep. 87.]
    Two of these conditions are, that the vessel should not deviate, arid that she should always have the stipulated amount of goods on board. A compliance with these two conditions, should be positively averred.—[Williams vs. Stedman, Skin. Rep. 345. Holt's Rep. 126.—1. Sid. Rep. 87.] But as the defendants have not in either of their pleas alleged such compliance, the pleas are bad.
    IV. The supposed enlargement of time is pleaded by implication and not by positive averment. The time originally limited was eighteen months, and this period had expired before the com? mencement of the suit. The defendants to avoid this, wished to shew by their pleas, that the time had been enlarged. But this they have not done by any express averment. All that is said on the subject is, that the voyage was enlarged, and that the vessel is now engaged in pursuing the substituted voyage. From this, the inference is drawn, that the time has been enlarged and has not expired. This, manner of pleading is decidedly bad, as will appear from the cases before cited.
    V. The new agreement is not avered to be under seal, neleven alleged to be in writing. The original contract was under seal, .and it is settled beyond all doubt, by repeated decisions, that a sealed instrument can be altered only by an instrument of the same nature. [Thompson vs. Brown, 1. Moore, 358.—7. Taunt. 656. 1. East. 619. 8. Taunt. 31. Tellers vs. Bickford.—3. T. R. 590. Littler vs. Holland, 3. T. R. 590 and 592. (n)—Farley vs. Thompson, 15 Mass. R. 25.]

      The court will not infer that the contract was in writing, for when the plea is ambiguous the construction is to be against it, [1. Chit. Plead. 521. 2.] And where an agre ementis not alleged in a plea to be in writing, the court will intend that it was verbal. [Cose vs. Barber, Sir T. Ray, Rep. 450.] In a declaration the averment is not necessary, but in a plea it is. [1. Chit. Plead. 303.]
    But whether this agreement was in writing or not, is not very material, for it certainly was not tinder seal. The maxim of legal construction is inflexible: codem modo quo quid constitutur cqdem modo dissolvitur.

      Mr. Hugh Maxwell and Mr. Slosson for the defendants,
    presented the following points:—
    I. The undertaking of the sureties was collateral to that of • their principal, and their liability arose only on the default of the principal. In consequence of this relation, the sureties are only liable on the strict letter of their contract, and any act of the' obligees, discharging them from this collateral undertaking, is a valid defence.
    II. The agreement in question, was such an act, and discharged the sureties entirely from the collateral undertaking in regard to the original voyage, and all penalties consequent on its abandonment.
    III. The new voyage was a different voyage, and an entire substitution in the place of the original one, and is not qualified by the limitation in the original voyage to "eighteen months, or by the stipulation as to the cargo on board.
    IV. The new contract cannot be incorporated with the original condition ; Searle, the principal, being no party to it, and it also feeing a distinct agreement.
    . V. The defence is good at law ; and as the agreement is a license merely, it can only be available by way of defence to the action on the bond.

      VI. In any event, there was an enlargement of the time for performing the voyage until a reasonable period had elapsed for the performance of the substituted voyage.
    The technical objections to the defendants’ pleas, arising from the alleged want of proper averments of the facts, relied upon as a defence, may be easily disposed of. It is perfectly immaterial in relation to the questions now before the court, whether the stipulated amount of goods was on board the vessel or not; for there is no controversy between the parties in relation to that subject. If the defendants have stipulated to do or perform any specific thing, the law will presume that they have complied with all the requirements of their contract until the contrary is shewn. Whether they have or have not performed all the stipulations contained in the condition of this bond is not a subject of present inquiry ; and the attention of the court cannot be drawn from the main questions to those which are merely collateral. The averments are all of them sufficiently specific and precise, and it is expressly alleged in the pleas, that the vessel sailed from New-York on the 26th day of August, 1825, “ having on board the goods, wares, merchandise and specie in the condition of the bond mentioned.” If they were on board when the vessel sailed, it is to be presumed that they continued there, until the contrary is made to appear. They must have remained on board until the arrival of the vessel at Madeira, unless thrown into the sea, for it is not pretended that there was any deviation before the vessel arrived at that island.
    It was not necessary to allege that the vessel had not deviated previously to the 20th of February, because such is the presumption, until the contrary is shewn. If she had deviated before that time, the plaintiffs contend that such deviation would have caused a forfeiture of the bond; and if this be so, it is for them to shew a deviation, for the court will not infer that the defendants have violated their contract.
    But if these objections were tenable and well taken, they are the subjects of special demurrer only, and cannot avail on a general demurrer. They may therefore be dismissed without further remark.
    I. The first subject of inquiry before the court, is whether the defendants can set up the new agreement by way of defence to this action; whether they can allege and prove, by parol, that a new voyage was substituted in the place of the original voyage ; for if they can, then the plaintiffs cannot under any aspect of their case, maintain this action until the substituted voyage has been performed.
    This inquiry leads to a distinct branch of the law; to the obligations of principal and surety ; for it will be observed that the original contract still remains in full force, as to Searle the principal in the bond. The contract on which the defendants rely, is that disclosed more particularly, by their second special plea; a separate contract between the obligees and the sureties, to which the principal is not a party. This defence is not set up by the principal but by the sureties, and they plead that the present action ought not to be maintained against them.

    The obligation of a surety is collateral merely, and he is never liable except upon the default of his principal. Before you can resort to an action against the surety, you must shew that there has been a violation of the contract on the part of the principal. The obligations of the two are not the same ;• the surety undertakes to do, to pay or perform upon the default of the principal, and his contract is conditional. It must be shewn that the condition has been violated before the surety is liable, and that is a prerequisite in the plaintiff’s proof, before he will be entitled to recover. [Ludlow v. Simond, 2 Caine’s, 30. Rees v. Barrington, 2 Ves.Jun.540. King v. Baldwin, 17 John. R. (384). Wright v. Simpson, 6 Ves. Jun. 734. Rathbon v. Warren, 10 John. R. 595.] There are many cases also where the obligations of the surety would be discharged while those of the principal would remain. As in the case of a tender by the principal; here the surety would be discharged altogether,—but the tender would merely relieve the principal from interest and damages. [3 Wil. 539.]

      II. This defence may be interposed by a surety, in an action at law, and this court has the same power to take notice of his situation which a court of equity has. At law all obligers are considered as principals, and the question whether a surety has been discharged or not, is a question of law. The court will never drive a party to any circuity of defence, where the demand of the plaintiffs can be met and answered at once. In this case the new contract goes to the very foundation of the action, and if available to the defendants for any purpose, it may be interposed as a defence here. [2 Ves. Jun. 540. 7 John. Rep. 337. 13 John. R. 174.]
    HI. Tlie bond itself, in the recitals of the condition, discloses the fact, that tlie present defendants are sureties merely, and that Searle is the principal debtor. This is specially averred by the pleas, and admitted by the demurrers; there is, therefore, no doubt as to the facts upon that subject; and the inquiry next arises, whether the sureties are exonerated from their collateral undertaking by this defence ?

    It appears from the second special plea, that Searle, the principal, "advised” tlie defendants, his sureties, that it was “his intention to deviate” from the voyage described in the condition of the bond, by touching at the Canaries, and some other port or ports after leaving Madeira." The sureties, considering themselves as placed in a situation of some peril by this determination of the master, gave immediate notice to the plaintiffs of this fact, and entered into a new contract with themj whereby the plaintiffs, for an additional premium, and for the distinct consideration of three hundred dollars, paid to them by the sureties, agreed with them, that the vessel should not be confined to the track of her original voyage, but might go from Madeira to the Cauaries, from thence to South America, to India, and elsewhere, according to the discretion of captain Searle. This new agreement changed the entire condition of the bond, and was a dispensation of the sureties from their obligations on the whole contract. A new voyage was determined upon, and the original one was totally abandoned; every thing connected with it was gone, and the defendants were exonerated from their first agreement. The original condition of the bond was entirely changed, and the instrument on which this action is brought, is to be looked upon as if dated on the 20th of February, 1826. The vessel, at that time, is supposed to be at Madeira, and when she departs from thence, she departs upon a new voyage, under the new agreement.
    Where the termini of a voyage are changed, the alteration, of itself, constitutes a new voyage. [11 John. R. 261. 14 John R. 46. By the original agreement, the voyage was to terminate at New-York; by the new contract, it may end at any port in the United States. Suppose the vessel had deviated from the route specified by the new contract, could such a deviation be assigned as a breach of the condition of this bond? To go on a new voyage, must certainly be an abandonment of the old one, and to charge tírese defendants for a violation of their contract, the plaintiffs must shew a breach of the conditions of their last engagement.
    The relative condition of all the parties is changed, for these defendants have lost their remedy against Searle, by entering into a new contract. This agreement is not binding upon him in any way, and the sureties can do nothing either for the benefit or to the prejudice of the principal, without his consent. No action can be maintained against Searle on the new agreement, and the sureties are not liable upon the original one. A joint action will not lie against the principal and sureties upon either contract, but the principal continues responsible upon his original engagement, and the sureties upon the new one. The plaintiffs saw fit, for a fresh consideration, to discharge these defendants from their first undertaking, and accept of a new engagement in its place; this last agreement wc are ready to fulfil in all its parts.
    IV. The original voyage was limited to the period of eighteen months; but the new voyage is not restricted by any such limitation. It could not be thus limited, because, under the new agreement, a different track is to be pursued, different countries are to be visited, and a different period of time would necessarily be embraced by the. new voyage. As, by the last agreement the new voyage is without limitation as to time, it is to be performed within a reasonable time.
    The limitation of time was a qualification of the particular voyage, stated in the bond as it originally stood, and if a new voyage be substituted, then the limitation ceases. The plaintiffs must show that the time has been unreasonably protracted under the new agreement, in order to maintain this action. But our averment that the vessel has “ constantly prosecuted and pursued” the new voyage with all reasonable diligence,” and that she has not " as yet arrived at a port in the United States,” is, by the pleadings, admitted to be true. No breach of the obligations of the new contract is shown, and the plaintiffs have not, therefore, any cause of action against these defendants.
    V. A parol agreement subsequent, may be set up by a principal in a sealed instrument, by way of defence, to an action upon the original contract, to save a forfeiture. This has often been decided by our own courts. Justice cannot be done to a defendant, when sued for a violation of the conditions of his bond, if he be not permitted to show that the plaintiff himself has dispensed with the performance of the condition. The new agreement does not constitute a substantive cause of action against the plaintiff, and is available to the defendant only by way of defence. If a court of law were to deprive the defendant of this privilege, he would in all such cases be compelled to resort to the equitable interposition of a Court of Chancery. But courts of law do not put this hardship upon him, and it has been expressly decided, that it is a good answer to the plaintiff’s claim, that he himself, by a subsequent parol agreement, has waived the performance of the very condition which lays the foundation of his action.
    In this particular, there is a marked distinction between the situation of a plaintiff and a defendant. The former cannot in-graft a parol agreement upon a sealed contract; and if the latter has been altered or changed by a subsequent parol agreement, and the plaintiff seeks to recover by shewing a performance of the new agreement, he must resort to an action of assumpsit; for his remedy upon the covenant is gone. [Jewel v. Schroeppel, 4 Cow. R. 565.] But when a defendant is sued in an action of covenant for the non-performance of its conditions, he may shew, in his defence, that the plaintiff, by a subsequent parol agreement, dispensed with the performance of those conditions.
    This position in no' way interferes with the principles of the cases cited by the other side. It is admitted, that where a party, in an action of covenant, relies uppn any alteration of a sealed instrument as the ground of a recovery, he must shew that-tlie new contract presents the same solemn evidence which the original presented. Not so with a defendant, who has been absolved from the performance of the very condition, for the non-performance of which an action is brought against him. He may shew the truth of the case, in any form of evidence, and it will always serve as an effectual shield. [Fleming v. Gilbert, 3 John R. 528. Keating v. Price, 1 John. Cas. 22. 15 Mass. R. 25. 1 M. and S. 21. 1 Esp. Cas. 34. 1 East. 628. 4 Sear and Raw. 241. 2 Wend. R., Langworthy et al v. Smith et al. p. 587.]

      Mr. Geo. Griffin, in reply.
    It is of some importance, in the investigation of this cause, to have correct general views of the contract upon which the action is founded. It differs from an ordinary loan in two particulars ; first, the principal is put in jeopardy ; and secondly, the obligees are insurers. The contract assimilates itself nearly to a contract of insurance on time, but differs from it in this, that the parties contemplated a termination of the risk within the stipulated period. The liability of the underwriters, (that is of the plaintiffs in their capacity of lenders,) expired at the end of eighteen months, at all events, but they had the benefit of the chance, that the voyage might expire before the expiration of that time.
    The two principal features in this contract, are the iter and the time. The time is of vital importance ; for if the voyage were to exceed eighteen months, then the plaintiffs would lose all interest on the premium, and the sum paid for the marine risk, although they would be-entitled to interest on the principal loaned. The limitation as to the time was therefore introduced into the contract with deliberation and care, and it. was of great consequence to the plaintiffs boll) in relation to the risk and to the interest.
    The iter was also of the first importance. The plaintiffs were interested in the iter of the voyage to a much greater degree than ordinary underwriters; for they are no further interested in the iter, than as it enhances the risk. But here the time would be increased or diminished by the route pursued, and of course that became an object of interest. We are to presume that the plaintiffs, therefore, informing this contract, had these two prominent objects constantly in view.
    II. The condition of the bond became forfeited on the happening of three contingencies, and the plaintiff’s would have been entitled to sue immediately upon the happening of either. 1. On the expiration of the time. 3. On a deviation. 3. Whenever the vessel ceased to have on board the stipulated amount of goods.
    Keeping these general propositions in view, what was the contract of February 2Qlh, 18271 It has been treated as if it went to the foundation of the whole arrangement between the parties; and an importance has been given to it, which is in no way merited. It was not a contract to deviate, but a permission to deviate. It was a mere license, no matter whether as to a new or an old voyage. Its effect was to give to the defendants the privilege of changing the iter of the voyage: but does such a permission thereby necessarily enlarge the time within which the voyage was to be performed! The contract itself, in its terms, contains no such thing, and there is some difficulty in discovering from whence the idea is obtained. What would be the consequence of putting such a construction upon the license 1 The plaintiffs would assume a risk entirely disproportionate to the premium received, and greatly beyond that assumed by ordinary underwriters. For an additional consideration of three hundred dollars, they would become insurers, without limitation of time, of a vessel and cargo, which had permission to traverse the seas of three quarters of the globe. It is no answer, to say, that the voyage was to be performed within a reasonable time ; for the defendants have entered into no express stipulation upon this point, and the mode of ascertaining the termination of the risk, is altogether too vague uncertain to be adopted by the Court in giving a proper construction to the contract. The limit of an ordinary voyage is to be estimated from the customary track, but here there is no such rule of estimation, but every thing would be left to opinion and conjecture. The Court will not, therefore, adopt any such uncertain rule, to determine the meaning of an express contract.
    But it seems to be supposed by the counsel for the defendants, that because the agreement disclosed by their second special plea, was made with the sureties to the bond, that therefore, it is to be •governed by different rules of construction. This is obviously a mistake; for the law construes all contracts by the same general rules. The obligations of principal and surety may indeed differ, but their contracts are to be expounded by the same rules.
    But there is a point remaining of a graver character, and which the defendants cannot evade. Admitting the full force of their claim, for the purposes of argument, the agreement on which they rely is wholly insufficient for their defence. The instrument upon which we rely is a deed—a solemn agreement under seal. The defendants attempt to destroy the force of this contract, by another and a subsequent agreement by parol, made apparently without the same care and deliberation which attended the first. This cannot be done. It is a fixed and settled rule of law, that a contract by deed must be rescinded by deed to destroy its validity. It cannot be broken up and scattered by the mere force of a loose, vague, and careless agreement by parol. It would not be safe to allow an instrument made with so much care and pains, to be destroyed in this light and unsatisfactory manner; and the law declares, that the second agreement, in order to supercede the first, must have the same evidence of solemn consideration. In chancery the defendants might have the relief they now seek to obtain ; and we would freely grant it to them, if founded in justice and equity. But when in a court of law, they seek to stretch the new contract, far beyond the intentions of the parties, we stand upon our defence, and resist what becomes an unjust aggression. True it is, our courts have allowed a waiver of such a - contract to be proved by parol, and if we had brought our action for a deviations the new agreement might perhaps have availed the defendants, in their present defence. But here the attempt is to change entirely the sealed agreement, and put in its place a mere parol contract. The pretence is, that as (o these defendants, the covenant is gone—superceded and destroyed. A mere parol contract cannot supercede an agreement by deed, and this defence cannot therefore, under any aspect of the case be, by any possibility sustained.
   Oakley, J.

after slating the pleadings in the cause,—It was contended, on the argument, by the defendants, that the plaintiffs having substituted a new voyage, for the one stipulated in the bond, the whole contract became thereby abrogated, at least as far as the sureties were concerned; or if not, that the terms of the condition of the bond were so far varied, that no action could be sustained by the plaintiffs, until the new voyage had terminated.

I do not think it necessary to consider how far it was competent for the defendants to set up a parol agreement to vary the terms of the bond,—though that question was much discussed at the bar,—as I am clearly of opinion, that the agreement alleged in the pleas did not affect or alter the contract of the parties, any farther than to preclude the plaintiffs from taking advantage of the deviation from the prescribed voyage. It amounted to nothing more than a permission that the vessel might deviate, and was, in no sense, an agreement that she should undertake a new voyage. It authorised a change" in the course of the voyage, but cannot, without doing manifest violence to the intention of the parties, be construed to extend the time for its performance.—■ The plaintiffs certainly, when they were granting, for a small additional premium, the liberty to deviate, which was asked by the defendants for their own security against the act of their principal, could never have supposed that they were substituting for a voyage of limited duration, one of indefinite extent as to time. Bnch a supposition is altogether extravagant. The true construction of the agreement set up in <hc pleas, is too plain to admit of a doubt. That part of the condition of the bond then, which bound the defendants to pay the money at the expiration of eighteen months, in case a loss of the goods did not happen, remained unaffected by the new agreement; and that time having expired, and no loss of the goods being averred in the pleas, they are clearly no answer to the plaintiffs declaration, and must be overruled.

Judgment for the plaintiffs on the demurrers.

George W. Strong, Att'y. for the pltffs. W. Slosson, Att’y. for defts. Barclay, Chance and Bayard.]