author: Judge Wood Judge Wright

text:
    Frederick Wadsworth, Sheriff of Portage County, v. Luther M. Parsons.
    Where, upon ft. fa., sheriff levies upon chattels, and leaves them with the debtor, taking bond for the delivery, and the goods are not delivered, a return of the facts does not excuse the sheriff from liability to the plaintiff upon amercement for the whole debt.
    On motion for amercement of sheriff’, pleadings not necessary.
    This cause was adjourned in the county of Portage, and came before the court upon the following state of facts: Parsons, the defendant in error, had a judgment against Hart et al., on which he caused an execution to be issued, and put into the plaintiff’s hands, as sheriff of Portage county. The plaintiff levied the ft. fa. on a large quantity of ironware. The property was left in the hands of the judgment debtors, and their bonds taken for its delivery. The plaintiff then advertised the property for sale, and afterward called on the judgment debtors, according to the condition of the bond, and in the life of the ft. fa. to redeliver the property, which they did not do. The plaintiff then returned the execution, stating the above facts in his return. The judgment 450] creditor afterward, *at the May term of the common pleas, 1834, moved to amerce the plaintiff for neglecting to serve the execution, according to its command, founding his motion on the above facts, as returned by the plaintiff. The common pleas eustained the motion, and amerced the sheriff in the sum of two thousand nine hundred and forty-six dollars and ninety-three cents, the amount of debt, damages, and costs, and in the further sum of two hundred and ninety-four dollars and sixty-nino cents, being ten percent, penalty thereon and costs of suit. The plaintiff seeks to reverse this judgment, and has assigned for error: 1. That the plaintiff was not liable to be amerced for any of the reasons set forth in the motion. 2. That the court of common pleas amerced the plaintiff, no plea nor answer being filed, nor any issue made up between the parties. 3. The general assignment that the order and judgment of the common pleas should have been for the plaintiff in error.

      Newton and Powers, for the plaintiff in error,
    cited 29 Stat. 103, sec. 8.
    Hitchcock, for defendant,
    cited 29 Stat. 109, sec. 32.
   Judge Wood

delivered the opinion of the court:

The statute, under which this motion to amerce the plaintiff was made, is section 32 of the “act regulating judgments and executions.” Its language is this : “ That if any sheriff, or other oB ficer, shall refuse or neglect to execute any writ of execution to him directed, and which has come to his hands, or shall neglect or refuse to sell any goods and chattels, such sheriff or other officer shall, on motion, in open court, and two days’ notice thereof, in writing, to be given such sheriff or other officer by the plaintiff or his attorney, be amerced in the amount of said debt, damages and costs, with ten per centum thereupon, to and for the use of said plaintiff.” The provisions of this section are broad, “ shall neglect or refuse to sell any goods and chattels.” The sheriff levied on goods and chattels by virtue of the execution which was placed in his hands. He neglected to sell the property. The case, then, by the return of the plaintiff in error on the execution, is clearly embraced in the spirit and letter of the statute.

The counsel fbr the plaintiff in error, however, claim that the'facts-Bet up in the plaintiff’s return on the^. fa. “ that he *took [451 a bond for the redelivery of the ironware, that he advertised it for sale, demanded it, and it was not redelivered,” excuse him from liability on a motion to amerce, and leaves the creditor to his. remedy by an action on the case. They cite section 8 of the above act, page 103, in these words : “ That in all case where a sheriff, coroner, or other officer, shall, by virtue of an execution, levy upon any goods and chattels, which shall remain upon his hands, unsold, for want of bidders, for the want of time to advertise and sell, or any other reasonable cause, the sheriff, coroner, or other officer may, for his own security, take .of the defendant a bond, with security, in such sum as he may deem sufficient, conditioned that the said property shall be delivered to the sheriff, coroner, or other officer holding an execution for the sale of the same, at the time and place appointed,” etc.

If there is anything in this section which can operate to excuse the sheriff, a majority of the court are not' able to perceive it. The-.■sheriff is in no case compelled to take a bond for the property. .It is optional with him to do so or not. He may remove it or leave it. The right of possession, the temporary ownership of ;goods and chattels after levy, is in the sheriff. If he leaves them with the judgment debtor, or in the hands of another, and takes the security authorized by law, the sheriff, after demand and refusal to deliver the goods, according to the condition of the bond, may seize the property wherever he can find it, if he can ■do so without a breach of the peace. He may maintain trover ■for it, because he has the right to the possession. The' sheriff, ■then, after having demanded the property, should have taken -it into his possession and sold it, if it were to be found; and whether the judgment debtors, in whose possession it was left, actually redelivered it to the plaintiff or not, and if his return do not show that the propertj was not to be found, was not within his reach or control, the most favorable construction which may be given to section 8 will by no means excuse him. What, then, ds the plaintiff’s return ? That he demanded the ironware at the furnace, where he had advertised it for sale, a.nd it was not delivered;” that it was not to be found;' or that it was not perfectly within his power to take possession of and sell it, is nowhere .stated, nor that its delivery was actually refused, but merely neglected.

But suppose the property was placed beyond the reach of the 452] sheriff, and this was shown by the return, is there any thing*in section 8 of this act to excuse the sheriff from liability on this motion ? The sheriff may take a bond for the property, or he may refuse it. It is at his own will and pleasure; but,- if he can do so, .for what purpose is it done? In the language of the section, “ for his own security.” He must, then, look to the persons to whom he intrusts the property. He leaves it at his peril. If the property is redelivered, it is well; if not, it was his folly to intrust it in such hands, and he is liable on motion to amerce.

The second error assigned is, that no plea or answer is required by the court below to the motion to amerce. Is there anything erroneous in this? In the first place, we know of no practice which requires either plea, or answer, or issue to be made up in form. We have never seen such practice adopted, and there is, in our opinion, no law that requires it; and in the second place, ■the plaintiff in error ought not to be permitted to take any ad ■ vantage of such omission, because it was for his advantage to permit him to appear and urge anything and everything as a defense, without being confined to a single point in a plea, or answer, or issue.

Judgment affirmed.

Judge Wright

dissented:

The bond taken by the sheriff, he was authorized by the statute to take for his own security. 29 Ohio L. 103. Does his doing so, and the failure of the obligor to deliver at the time of sale, subject him to amercement? That appears to me the true question in this case. The proceedings on the amercement are admitted to have been regular, if the case was one for which the sheriff could be amerced. The statute authorizes an amercement of the sheriff in the following eases:

1. Of neglect or refusal to execute the writ of execution; to sell property levied upon; to pay over to the plaintiff, on demand, his debt on the amount made; or to pay over to the defendant, on demand, the surplus, if any.

2. Of mere neglect to call an inquest and return a copy of the appraisement to the clerk: or to return the writ; or to return an inventory of goods levied upon, if the whole debt is not made.

Eor the neglect or refusal to pay over money, the amercement is for the sum withheld, with ten per cent, penalty thereon. *In [453 all the other cases the court has no discretion in the amount, but the amercement is for the whole debt or money due, with ten per cent, penalty thereon, and costs.

The proceeding under this statute is summary and penal, and is not to be extended beyond its letter and spirit. It is intended to induce the officer to an exact performance of his duty; to prevent the interposition of his discretion between the commands of the writ and the law for the ease and favor of the debtor, and to punish in a very summary way neglect and refusal to do his duty. What duty, in the case before us, had the sheriff refused or neglected to perform for which he was amerced? To sell the. iron levied upon and delivered on bond ? He did not refuse to sell. Did he neglect? Neglect supposes some fault in the officer. Was there any fault in this case? The law authorized him to take bond for the delivery of the articles he had levied upon. This he did in good faith. He did not sell, because he had nothing to sell; the goods were removed from his custody according to law, and were at the-time of sale lawfully beyond his control. If replevied, or delivered up on proof of ownership in another than the defendant, they would have been removed from him no more in accordance with law j yet returning these facts could he be amerced? If proceedings are stayed by injunction from chancery, and bond given to abide the decree, the sheriff is directed to repay to the complainant all money made on the execution and not paid over, 29 Ohio L. 89. Would he be liable to amercement if he refused to pay to plaintiff afterward ? That will hardly be claimed; yet he has collected money for the plaintiff, and neglected and refused to pay it over to him; and if he be not excused from amercement because the money has gone from him under the sanction and operation of law, I do not see what protects him against it. On the other hand, if it be that in either of the cases, the officer is exempt from amercement because he has neither neglected nor refused to perform his duty, but only done what bylaw he was'authorized to do, I am unable to find the reason why the principle does not apply to the case under consideration. Suppose the sheriff had the goods at the place of sale, had offered them, and was unable to sell because of no one bidding, has he neglected to effect a sale ? Is he liable to amercement ? The answer is, no. He could not effect a sale according to law, and therefore is not liable to amercement, to pun-454] ishmont as a wrong-doer. It seems *to me these cases depend on analogous principles, if not upon those identically the same, and that the only sensible and just interpretation of the statute is. the one which supposes the officer only liable to this highly penal-proceeding for some neglect or positive breach of duty. The injustice of the construction necessary to sustain the amercement-will appear probable from a single consideration. If the goods levied upon and bonded were bulky, incapable of being reduced •to actual possession, though not of a tenth part the value of the debt, and though the expense of guarding them, or removing them to a place of safety, might exceed by ten-fold their entire value, yet-if bonded, and not delivered at the time of sale, the sheriff would be liable to pay to the plaintiff more than ten times their value, and ten per cent, upon the whole sum. If an execution of a thousand dollars be levied on a stack of hay worth five dollars, which is bonded in case of non-delivery, the sheriff would have to pay, not the five dollars lost, but the eleven hundred dollars! And for this ■he would hardly have day in court; a judgment would go against him on mere motion! It is impossible for me to conceive the legislature ever intended to provide for such a state of things .against any person, and much less to subject a highly responsible public officer to such enormous penalty.

The construction I give the statute can work no injustice to any -one. If the officer neglect or willfully x’efuse to perform his duty in cases where the sum is ascertained, he is liable to the amount and ten per cent, penalty, as punishment for his neglect or wrong ■act. If the amount is not ascertained because of the neglect or refusal of the officer, the whole debt is the proper measure of dam.age, because he whose duty it was to furnish the evidence of the less sum withholds it. If the injury to the plaintiff arise without the fault of the officer, the injured party is left to assert his rights at common law as in other cases of injury. If this remedy is x'e-sorted to, instead of the amercement, the officer can proceed oxx his bond at the same time, and avail himself of the indemnity the law provided for him, by judgment and execution at the same time. If the plaintiff’s right to amerce arises from the mere neglect to ■sell, the payment by the debtor or his security in the forthcoming bond of the full value of the goods bonded, would not exonerate ■the sheriff from amercement, although the statute under which it is taken, expressly declares that on failure to deliver the goods, the bond may be discharged by the payment of either the full *valueofthe goods orthe amount of the debt. 29 Ohio L. 103. [455 .An insolvent debtor, therefore, by bonding goods ofsmall value, bearing a trifling proportion to the judgment against him, may refuse ■to deliver, pay the value of them, and throw upon the sheriff the whole balance of the debt, if the creditor choose to exact it. Surely this can not be the law.

The analogy urged by counsel to the liability of the sheriff for .the. body of a defendant, who has given him appearance-bail, is not established. The appearance-bail bond is for the security of the shex-iff and the party. The party may take an assignment if he will; if he do not take it and rule the sheriff to bring in the body, he is, it is true, liable to amercement, if he do not answer the rule; but the law provides abundantly for his security and pro- • tection. He may enter special bail himself, take out a bail piece, .arrest and surrender the party in discharge of his liability. If he do not retake him, the cause, after special bail is entered, progresses regularly to judgment and execution, and- as special bail, he is only liable after execution against the body of the defendant returned not found and after the appearance term of process served upon him upon the recognizance of special bail. Until then, he has time either to collect the money by suit upon the appearance bail bond, or to take the defendant .and surrender him in discharge of his liability. He is thus afforded opportunity to avail himself of the indemnity provided by the law which required him to let his prisoner go on bail. It appears to me what there is of analogy in the two cases is in favor of my construction of the statute, that in such cases the officer is not liable to the extraordinary and summary proceeding by amercement, but is left to his liability at common law, by suit.

I am of opinion the court of common pleas erred in awarding the amercement against the sheriff, and that their judgment ought to be reversed.

In Ring & Rice v. Foster, ante, 279, and in Austin v. Hayden, ante, 388, Judge Wright dissented. His dissenting opinion, in each of these cases, was overlooked when they were put to press. They will be found at the end-of the volume.


source: Caselaw Access Project

author: Judge Wright

license: Public Domain

text:
    *Webb and Vanlear v. The Protection Insurance Company.
    Where evidence is given to the jury, the court will not set aside the verdict, unless it is palpably against the evidence, or its weight.
    A proposition, by the insured, to abandon for a total loss, which is abandoned upon the agreement of the insurer to pay his proportion of the expense of repair, is not an agreement to defray the whole expense of repair, nor such an interference with the wreck to prevent an abandonment, as will subject the insurer to pay any greater loss than would otherwise be legally adjusted upon the policy.
    A policy of insurance upon the hull of a steamboat, on time, does not cover expenses for the ordinary wages of the crew, while navigating the boat, into port for repair, after her founder.
    Insurer is not liable for wages of the crew between the place o£ founder an<J discharge, on the direct line of the voyage.

      Commission paid a commission merchant for advancing repairs, in a home port, are not chargeable against the insurer; and if the advance be at the port where the policy was executed, it is prima facie the home of the boat. Interest upon the amount of the loss may be assessed, after the expiration of the stipulated sixty days, from the proof of notice.
    Such a policy does not cover wages paid to hands that were of the crew, who were discharged at the port for repair, and re-employed as common work hands in the repair, except for the wages of ordinary hands.
    This case was adjourned from Hamilton county, on a motion for a new trial made by the defendants. It was an action of assumpsit on a policy of insurance, in which the defendants took a risk of five thousand dollars upon the hull, engine, tackle, and furniture of the steamboat G-alena, valued at seven thousand dollars, against unavoidable, external violence in navigating the western waters, for six months.
    On trial to the jury, it appeared that in a voyage from Louisville, in Kentucky, to Florence, in Alabama, the boat struck a rock near the head of Colbert’s Island, in the Tennessee river, that had been dropped in the channel by those employed to clear out the river, and was seriously injured by the collision. It was conceded that the damage was within the perils insured against, and that the defendants are answerable for five-sevenths of the proper charge for repairing the injury.
    The jury returned a special verdict finding the execution of the policy, and also:
    1. That the injury was sustained on the 4th, and notified to the defendants on December 20, 1831, and the repairs completed on April 9, 1832.
    2. That the plaintiffs proposed to abandon the boat for a total loss after the injury, but were prevented from doing so, by the defendants agreeing to pay their proportion of the costs of repairs.
    *3. That the amount paid for repairs, including [457 the bill of Eobinson (exhibited), was...................$2,362 23
    4. That the crew were employed after the accident in preserving the boat, and taking her to New Albany for repair; were there discharged as a crew, and some of them again' employed at the request of the boat carpenter to expedite the repairs; and that there was paid for their wages, between the time of the injury and the discharge at New Albany......... 1,085 61

      And for like wages between such discharge and the completion of the repairs.................................... 1517 61
    5. That the plaintiffs expended for provisions for the boat’s crew, between the time of the injury and the completion of the repairs.................................... 984 01
    6. And paid Forsythe & Co., of Louisville, commissions for advancing the above payments............... 206 80
    Miaking a total sum of.......................................$5,156 26
    And the jury assess the plaintiff’s damages to so much of the said items set forth in the accounts exhibited as the court shall be of opinion they are, in. law, entitled to, with such interest as the law allows.
    The defendants move for a new trial because the verdict is against evidence in the following particulars :
    1. In finding the whole of Robinson’s bill of one thousand four hundred and fifty dollars as expense of repairs.
    2. In finding that the crew were discharged.
    3. In finding that five hundred and seventeen dollars and sixty-one cents was expended for wages of the crew after their discharge.
    4. In finding the expense of repairs with the consent of the defendants.
    5. In finding that the plaintiffs were prevented from abandoning by the defendant’s agreement to pay their proportion of the costs of repair.
    There is also a motion by the plaintiffs for judgment for the whole items found by the jury.
    C. Fox, for the plaintiffs :
    On this verdict several questions present themselves for consideration of the court. They may be classed under the following heads: 458] *1. Where the state of injury is such as to justify an abandonment, but an actual abandonment is not made in consequence of an agreement on the part of the underwriter to pay for the repairs, what are the rights of the insured ?
    2. Is the insured entitled to recover the amount of wages paid to the crew, and money expended for provisions used, in navigating the vessel from the port of distress to the nighest port for repair, when that port is sought and the repairs made by agreement with the underwriter?

      3. After arriving at the port where the repairs are to be made, the crew are discharged, as a crew, and a part of them engaged as hands, is the insured entitled to recover the amount paid the hands thus re-engaged?
    In answer to the first inquiry, I take it to be a well-settled rule, ■“that if, by any interference of the underwriter, the insured be prevented from abandoning, the underwriters are liable for all the loss sustained by the insured, to the extent of the sum insured.” 2 Condy’s Marshall, 598; 2 Term, 407.
    The authorities show, conclusively, that where the insured has a right to abandon, and the underwriters agree to pay for repairs, and by such an agreement prevent an abandonment being made, they must pay the whole expense of the repairs, even if it exceed the amount insured. 2 Wash. C. C. 349; 3 Mason, 51, 437; 2 Term, 407.
    If the voyage was broken up and lost, that circumstance authorized the insured to abandon. 3 Mason, 51, 437.
    In answer to the second inquiry, we say: If the abandonment had been made, the charge of taking care of the boat would have been with the underwriter — the expense of taking her to the port of repair would have been the underwriter’s — the crew’s wages •and provisions must have been paid by the underwriter. Phillips •on Ins. 462.
    The agreement on the part of defendant’s agents, that the ■plaintiffs should go on and repair, is an authority to use all the •necessary means of making the repairs. The repairs could not have been made at a port nearer than New Albany, where she was repaired ; the authority, therefore, to repair at that place imposes an obligation to pay the expense of getting her there.
    I admit that if the vessel was injured, but still was able to proceed on her voyage, and was only detained to repair, according to the English rule, the wages of the crew, while so detained, could be no charge on the underwriter of the ship ; *but the rea- [459 son of that rule has no application to the present case. In the case alluded to, the wages of the crew depend upon the successful termination of the voyage. The owner is at no additional expense, except as to provisions, and the freight is said to include the wages. But when the voyage is broken up, there is no chance of earning freight, and all the expense of going to another port is an extra charge.
    But where the ship is hired by the month, the expense of wage® and provisions during a detention are considered a charge on the underwriter. 2 Condy, 727; Park on Ins. 126,
    It is a part of the history of this country, well known to every one acquainted with the navigation of the western waters, that the captain and crew, and indeed all persons employed on hoard a steamboat, are uniformly engaged by the month. The crew claim and exercise the right of leaving the boat, and the master claims and exercises the right of discharging any or all of the crew at any time. The wages are paid at the monthly rate agreed upon, but the amount paid is regulated by the length of the service.
    Whether the voyage is performed or not, is immaterial to the crews employed on ste a-mboats — their wages must be paid at all events.
    But whenever a ship is forced by a storm to enter a port to repair, “the wages and victuals of the crew are brought into an average, from the day it was resolved to seek a port to refit the vessel to the day of her departure from it, with all the charges of unloading, reloading, anchorage, pilotage, and every expense incurred by this necessity.” Park, 126.
    In answer to the third inquiry, we contend that the owners-have the right to recover the amount paid to those of the crew who worked at the repairs. It is found, by the verdict, that the crew were discharged, as a crew, at New Albany, and that those of them who were employed at the repairs were so employed “at the request of the ship-carpenter, to expedite the repairs and that the expense of the repairs was not increased by employing those hands.”
    What difference it can make to the underwriter whether a laborer is employed from this or any other boat, I can not imagine. So long as the cost of the repairs is not increased, he has no reason to complain. 2 Mason, 51; 2 Term, 407.
    The right to allowance for commissions paid the merchant who 460] *made the advances, is clearly a correct charge, without deducting one-third new for old. Phillips, 371.
    N. Wright, for the defendants:
    It will be seen at once that the materiality of the reasons for a new trial, and the bearing of them upon the result of the case, depend upon the construction that may be given to the verdict* and the law which may be held to arise thereupon. If the court agree with us in the construction of the verdict and the law, then, probably, all these reasons, except the first, will be unimportant; but if otherwise, it maybe essential to show that tho jury had no evidence on which they could find these facts as they did. The wish of the defendants is, that the case may now be-finally settled ; and for that purpose that the items of the account sustained by a finding against evidence (if any such there be) should be rejected, and the amount recoverable should be now made up, upon the full and true merits of the case.
    In arguing the case, I shall first consider the verdict, referring incidentally to matters arising on the motion for a new trial; and then consider any matters relating to the motion not previously referred to.
    In relation to the special verdict, the items for the wages and provisions for the crew can not be recovered. It is hardly necessary to reiterate the law upon this point; this court, if I mistake not, has already fully settled it. There was in truth nothing to-settle, when once the proper discriminations are made in the adjudications on this matter. The present insurance is on the boat; such insurance has nothing to do with her profits, or the expense-of navigating her, either before or after damage, so far as ordinary expenses are concerned. The insurer simply warrants to make good the injury to the boat, tackle, etc.; if these are damaged he shall pay the cost of repairs ; but whether she shall make-one trip or twenty, whether the cost of navigating her shall be one-half or five times her income,is no concern of his ; these matters belong to the insurer on freights or profits ; if he can say to the owners, th ere is your boat as good as it was before, it matters not to him what business she has done. A strange confusion of ideas seems to have arisen among some of us at the bar, on this matter, by confounding with it a different class of questions. It is a question ^discussed in this country and in England, and [461 on which there is a diversity of decisions, whether, in case of a ship turning aside to repair, to avoid danger of foundering, the wages and provisions of the crew, during the detention, would be covered by a policy on the ship as general average. In New York it is held, that inasmuch as the delay is for the common safety of all concerned, for the preservation not only of property but of life; and good policy requires that the owners should have no-temptation to peril either, for the sake of avoiding expenses to themselves — that the ship ought to contribute its average of such -expenses. This is, perhaps, a correct doctrine. But the courts •of New York, as well as all others, hold that wages and provisions in such cases ate recoverable only as general average. Dunham v. Com. Ins. Co., 11 Johns. 315, 347 ; Barker v. Ph. Ins. Co., 8 Johns. 245 ; Leavenworth v. Dalafield, 1 Caine, 573 ; Walden v. Leroy, 2 Caine, 263; Paine & Scribner v. N. Y. Ins. Co., 3 Caine, 155 ; Mumford v. C. Ins. Co. 5 Johns. 262; Dodge v. H. M. Ins. Co., 17 Mass. 471; McBride v. M. Ins. Co., 7 Johns. 432, note a; Phil. Ins. 252, 347, 370; Beneck & Stevens, 127, 389; Hughes Ins. 370; Sage v. M. Ins. Co., 1 Conn. 239, In some of these cases, as in case of capture or wreck, the employment of the crew by law terminates by the casualty to the ship, so that if they are continued .afterward it is on a new engagement, and is construed as being done for the safety of all concerned, and so is included in general •average. Hence the distinction between capture and embargo; .the former dissolves the contract with the crew, the latter does not; and if the crew is retained, in one case, it is considered as a special employing to take care of ship and cargo, and to be ready for reshipping in case the ship is released ; in the other case, as the continuance of their ordinary employment, the former being general average, the latter not. Yarious other distinctions, arising out of special circumstances, might be referred to, were it necessary.
    Another case has occurred, which has also led to confusion of the rules of law on this point. If a ship is compelled to employ •extra assistance to reach a suitable port of repair, that extra expense, in proper circumstances, is considered as part of the cost of repairs; as where a boat requires to be towed, or to employ extra hands, etc., to reach such port. This may be a proper charge, for the same reason that the cost of bringing the materials for re-462] pair to an inconvenient place would be *part of the expense. But this has no application to the present question. The principle is this: the insurer on the ship has nothing to do with the cost of navigating; this belongs to the owners; they provide the hands to navigate her, and take care of her, both when she is in prosperity and adversity, as well when on the rocks as when under way ; it is the duty of the crew at all times, as well after •the accident as before, to bestow their utmost exertions in taking care of and saving the ship; this is their ordinary duty, resulting' from their employment and the wages they receive; and if this is ■ not done, the policy is forfeited. Can it be contended that on these rivers, if a boat meets with an accident that disables her for the time, the crew may abandon her, and if they are employed afterward, it is at the cost of the insurer? And yet such is the result of the doctrine against which I contend. The moment of an accident is that in which all the efforts of the crew are required, as well as their continued exertions afterward, and what captain would ever employ a crew upon other principles? In the present case, the wages and provisions claimed are these ordinary expenses, resulting from the ordinary duty of the owners .to take care of their boat.
    In the present case, there is no pretense that the claim can be sustained as general average. No facts, looking that way, are found in the verdict or exist in the case. It would hardly be claimed that the cargo, which might have been in the boat at the time, was liable to contribute to these repairs.
    Another ground has been suggested on which a part of the wages are claimed to be covered; that is, that the hands were employed in making the repairs. I refer now to their employment independent of the circumstance of their discharge and reemployment, as found in the verdict. I shall consider that hereafter. The fact that the crew assist in making the repairs is no reason why their wages should be allowed. In Sage v. M. Ins. Co., 1 Conn. 239, this matter is ably treated. It is the duty of the crew to do all in their power to prevent and repair injury. If they are not able to do it, extra aid must be employed, for which the insurer is liable. While they are retained as crew they draw their wages, whether assisting in the repairs or not; their duty is to take all possible care of their boat, and it becomes impossible to distinguish so as to decide how much of their labor is bestowed on the repairs, and how much on their other duties. He who occasions a confusion *of property, so that the interests of [463 one can not be distinguished from those of another, must bear the loss. It is utterly impossible, therefore, where the hands are retained in the employ of the ship-owners, to make any apportionment of their work on account of repairs. Probably no case ever-occurred where the crew have not rendered some assistance in the - repairs; and yet no case has attempted to make a partition. The-rule must be one which can be acted upon, and which will be obvious ; and none can be found for this purpose but that in Sage v. M. Ins. Co.
    In the present case the wages are claimed as wages, the account •is so kept; even the cook and his wife, the steward, etc., all as the ordinary hands of the boat; the captain, too, whose general care and superintendence of the boat would be indispensable, especially at a season when the boat would start on a voyage the moment .she was ready; all are allowed full wages in the name of wages, without an attempt to put them in the shape of cost of repairs. The accounts were necessarily so kept, while the hands were retained as a crew; and of course there could be no discrimination, by which an estimate could be made of the worth of that part of their services, which went into the repairs, if such a distinction ■could be taken in law, which surely could not. In Perry v. Ohio Ins. Co., 5 Ohio, 306, and Gazzam v. Cincinnati Ins. Co., ante 73, the law on the foregoing points is so fully settled that it was not necessary to have said what I have.
    But the plaintiffs attempt to take this case out of the general principle by virtue of certain matters found in the verdict.
    The verdict finds that “the plaintiffs offered to abandon, and were prevented from so doing by the agreement of the defendants to pay their proportion of the cost of repairs.” The plaintiffs contend that this subjects us to all their account, and cite Da Costa v. Newnham, 4 D. & E. 407. This case is so much relied upon that I must drop a word upon it. A writer in 10 Amer. Jurist, 254, speaking of this case, says that the court without referring to principles and without argument, took for granted certain principles of law, referring to authorities which in fact sustain no such principles; and in consequence of such a sanction the case has been since used to sustain absurd positions. I do not quote the language. The case is evidently a singular, if not an inconsistent one, though it is difficult to tell what it decides. It relies 464] on the fact of a refusal to accept the ^abandonment, and some agreement about making the repairs, but what items were brought in by virtue of this agreement does not appear. The whole expense claimed was six hundred and seventy-eight pounds; the verdict was for sixty-two pounds and nineteen shillings, to which the defendant objected. The judge says, it was a case where the party had a right to abandon. The case does not decide expressly that wages and provisions were not recoverable, even in that ease. He decides that an abatement of one-third new for old was not to be made; but this he puts solely on the ground that the ship after repair never came fully into the hands of the plaintiff. Now, if the matter about abandonment did not give a right to claim wages and provisions, the case is in our favor, and cuts off the whole claim under that finding in the verdict. Again, in the present case, there was no right to abandon ; the verdict does not find a ease for abandonment; the proof makes no such case; for the damages, as estimated by the witness, and the expense of repairs as proved, do not approach to half the valuation, seven thousand dollars.
    The agreement, as found, is to pay our proportion of repairs, and nothing more, precisely what we are liable to do without the agreement; and how can it now be said that this is an agreement to pay, in addition, wages, provisions, etc. The finding, therefore, if relied upon, seems to me to protect us against all but repairs. If a case of abandonment had existed, and the boat had been abandoned, she would have been ours, run on our account, and when repaired, her earnings and enhanced price would have been ours. Surely it would be preposterous now, to attempt to charge us with the expenses of running to a certain date, and give us no account of subsequent profits and enhanced value.
    Upon the motion for a new trial, if my construction of the verdict is not correct, there was not a particle of proof that the plaintiffs were prevented from abandoning by our offer to pay the proportion of the cost of repairs. All the proof on this point is included in the deposition of Eorsythe, his letter of December 14, and E. Marsh’s deposition. This letter is not even an offer to abandon, for it only offers to abandon an undivided interest, that is, five-sevenths. The principle of abandonment is, that the insured prefers to give up his interest in the boat, and take the insurance money, so that there can not be an abandonment in part. The basis of abandonment is a total loss, that is, the insured has lost all his interest; of ^course he can not stipulate to retain [465 a part, when he offers to abandon.
    In the next place, after this letter was received, some time in January, the defendants, as they had a right to do, took time to deliberate and inquire, and on the 25th of January an answer was given, as Eorsythe states it, that defendants would make no corn-promise, the owners might go on and repair, and defendants would pay their proportion. Forsythe requested defendants to send an engineer to make the repairs; but they refused, saying the owners must make the repairs, and defendants would pay their proportion ; and they might make them whore they thought proper. Marsh states the matter in about the same way, showing a little more distinctly that all that passed was merely a declaration of what the law requires in case of a partial loss, that it was not the duty of the insurers to make repairs or to advance money for it; but the insured must make their own repairs and send in their bill. At the time of these negotiations the boat was lying safe at Waterloo, where she arrived December 30, as stated in Hacker’s deposition, or was employed in towing keels (same deposition), not a word was said in all these negotiations about abandonment; if Forsythe’s request, that defendant should send a hand to take charge of the boat, can be qonstruod as alluding to abandonment, the reply was a direct refusal, not upon any condition, or holding out any inducement to prevent an abandonment; but a direct negative, stating that defendants would do precisely what was their legal obligation in case of a partial loss; in this the plaintiffs acquiesced, without demanding any terms or conditions, or intimating that they wished to rely on an abandonment. Most clearly these statements can not, with the least color of fairness, be construed into any sort of a special contract, founded on the consideration of relinquishing the abandonment. In the first placo, no case for abandonment existed; in the second place, no 'valid one was offered ; in the third place, no inducements to relinquish it were held out, nor any terms proposed for doing so; but it was, if suggested, promptly refused, and the only offer was to do what the law required in case of partial loss. It is clear, therefore, if there be anything in this finding materially varying the rights of parties, that there was not a particle of testimony to warrant it.
    Another item of the verdict which seems to be relied upon as giving some right to claim these wages and provisions, is, 466] *“ that the expense of repairs and subsequent control of the boat were by the assent of the defendants.” I understand from this, precisely what the words express, that defendants did not object to the making of the repairs, and the control of the boat, bv plaintiffs. This would probably bar us from objecting to the place and time of making the repairs; but our simple assent to what the plaintiffs had a right to do surely implies no additional obligation on our part. It might as well operate to bind us to pay for lengthening the boat, as to pay the wages of the crew.
    If this finding has any other meaning or effect, it is entirely unsupported by testimony. The only proof on the point is Forsythe’s deposition, who says defendants’ agent told them to make the repairs, and that they might do it where they thought proper, and he thinks New Albany was spoken of as the place contemplated. This was merely stating to them their legal duty, surely not the making of a special contract. There can be no difficulty upon this point.
    Another fact in the verdict is also relied upon to charge us with apart of the wages, viz: “that the crew were discharged as a crew, and afterward were employed by the captain, at the special request of the ship carpenter, to enable him to expedite the repairs.” This point is taken with reference to what is said in Da Costa v. Newnham, 4 D. E. 407, viz: that the crew having been discharged, and some of them employed by the day, by the ship carpenter, about the repairs, the wages so paid by the carpenter was a proper item of the expense of repairs. It must be kept in mind, what is the rule of law upon this point. The captain and crew, while employed as a ship’s crew, are bound to take care of the ship, to assist in repairing her, and to do everything «lse in their power for her benefit; they are bound to spend all their time in her service, and this results simply from their relation to^ the ship as her crew. I will not undertake to decide, nor to inquire, whether the actual damage to a ship might be recovered by estimation, without reference to the bills for repairing; and, if so, whether, in any possible ease of that kind, repairs actually made by the crew could be recovered ; probably not, however, from the impossibility of reducing any such rule to safe practice. But it is enough for the present case that the wages of the crew, as a crew, can not be recovered. To admit it would be a violation of all ^principle, and open the door to the grossest imposition [467 upon insurers.
    The finding stated above is, that “the crew were again employed by the captain,” etc. I consider, therefore, that this reemployment was as a ship’s crew; for it was the captain who employed, and that not to work at the repairs, but “ to enable the •carpenter to expedite the repairs.” The ordinary duties of a crew about the boat would aid in expediting repairs; and the fact that they were employed by the captain, and not by the carpenter, shows that they were employed as-a crew. If this be the fail-construction of the finding (and that it is, is confirmed by the fact that it comes the nearest to anything which the proofs would war-' rant), then it leaves the matter as it stood before — the hands were ■still acting as a crew, owing duty to the boat in that capacity, and •entitled to their wages accordingly.
    But if the true construction of the finding can be made to ■operate against us, then, under the motion for a new trial, we insist there is not a particle of proof to warrant such a finding.
    The remaining item is two hundred and six dollars eighty cents, commissions paid by plaintiffs to Forsythe & Co., for advancing them four thousand one hundred and thirty-six dollars to pay the •boat bills.
    This is a novel claim; the plaintiffs, not being flush of money, •raise it from a commission merchant and call on us to pay the commissions. If they had borrowed it from the bank we must have paid the interest; and if they had plenty on hand we should have been saved this item, so that the amount recoverable will ■depend on the wealth or the credit of the insured. This is not the law. There are cases of repairs made in foreign ports where commissions are recoverable. The captain, abroad, has a power, in case of necessity, to pledge the ship, or resort to any other fair ■means to raise funds; and the expense of raising them in a foreign port, if inevitable, is part of the cost of repairs. But at home no ■such principle applies. It is so decided in Sage v. Marine Insurance Co., 1 Conn. 242, and so always must be.
    The defendants were not bound to advance money to make the ■repairs unless they had accepted an abandonment or a valid one was made and adhered to. The terms of the policy, as well as all practice, settle this — the loss is not payable till sixty days after notice, and the actual cost of repairs is the criterion by which the 468] amount of partial loss is usually estimated. *It would be absurd to say that the insured has a right to call at once for money in advance to make the repairs; his course is to exhibit his bills of repairs duly authenticated, and claim payment of them. As said in Peele v. Marine Insurance Co., 3 Mason, 85, “ the duty of the ■insurer is solvere, not f'acere, to pay the amount, not to do the work.” “ If the underwriter has a right to repair in one case he has in all cases, and in his own manner, and with his own materials.”
    It remains to add some further remarks on the motion for a new trial. The damage to the boat was small. Even making a liberal allowance for the necessary injury by cutting the deck, it is difficult to conceive how the expense of repair could be made more than five hundred dollars. Yet the owners, while making the repairs, have seen fit to lengthen their boat twelve or thirteen feet, refloor the decks, new build parts of the engine, etc., and by thus inevitably blending the repairs with important improvements and alterations, charging us with the wages and provisions of their •captain and crew throughout, and even the commissions on their own money, make out a bill of upward of five thousand dollars. The account presented is the very reverse of that simple, distinct exhibit of the costs of repairing the damage, which usage in such cases requires. It is an obvious attempt to make out of the insurer, not only an indemnity for an unprofitable trip, but even a large proportion of the cost of a new and enlarged boat; for how else could they attempt to claim of us all the wages and provisions of the crew, while themselves admit that the improvements were in progress during the same period.
    The first item objected to in the verdict is including the whole of Robinson’s bill of fourteen hundred and fifty dollars thirty cents in the repairs. On this we must ask the court to read De Hart’s deposition. He states the repairs to the bottom, including the hauling' out and launching, from four to five hundred - dollars. The boat was not hauled out. If we allow them five hundred dollars for the just share of Robinson’s bill, they will be fully remunerated as near as we can judge. The labor, applicable to both branches jointly, stands against us wholly; doubtless the same is true as to materials. We can not otherwise account for the great difference between the estimate for repairs and the bills rendered. The legal rule is, that wherever it can not be clearly shown that an item is applicable to repairs only, it ought to be set down to improvements; and this, among other reasons, because the plaintiffs *have chosen thus to confuse the two branches of busi- [469 ness, and it rests with them to show clearly what part belongs to us.
    Another matter in which the verdict is supported by proof, is the amount paid to the crew after the supposed discharge ; or, in other words, the amount paid the crew for assisting in repairs. I have said before I do not suppose this item recoverable on the face of the verdict; but, if in that I mistake, the recovery must be on the ground that the amount was, in part, paid for repairs. On this point I wish to refer the court to the testimony, not only with reference to the point itself, but to show the manner in which the plaintiffs set up their claim, with reference to other points above referred to.
    I believe all the other reasons for a new trial are sufficiently touched upon under the first branch of the case. The defendants wish that the case may be now finally adjusted ; and, for that purpose, if there be anything in those facts in the verdict not warranted by the proof, which operates against us, we wish that the amount may be made up by rejecting such unauthorized finding, or, in other words, on the whole merits of the case as presented in, the testimony.
    On the question of interest, it can not be claimed prior to the 9th of April, when the work was completed, and money paid; for it could not have been demanded or paid before that time, the amount not being ascertained. But, further, the amount is payable sixty days after proof of loss ; this proof means the ordinary preliminary proof, which includes not only the fact of injury, but the amount, in case of partial loss; so that this proof could not be complete till the 9th of April, and sixty days after that must be allowed; and so interest would begin from June 8, 1832.
    C. Fox and B. Storer, in reply:
    As to the item of Robinson’s bill, the question was distinctly submitted to the jury. The defendant had the benefit of De Hart’s deposition. ¥e met it by the testimony of several witnesses, showing the standing of Robinson, his character as a carpenter, and by showing that De Hart was no mechanic. The matter was fairly submitted to the jury, on the question of credibility, and we suppose must rest as it is.
    With regard to the mode and manner of keeping the accounts 470] of the expenditures; these matters were submitted to *the jury, and the objections which are now raised were fully discussed. So with regard to the amount paid for repairs.
    There is much said about the term “ wages.” The counsel says, the fact of the term “ wages ” being made use of, shows that all the money paid the hands were for wages as a crew. The verdict ■shows that the crew were discharged, yet we find that the charges for wages are continued as before. And is not this the ordinary anode of keeping accounts of expenditures ? Is not the term applicable to compensation paid for all labor, whether as laborers, mechanics, or otherwise.
    That an abandonment must embrace the whole subject insured is admitted; but that where five-sevenths only of a ship is insured, (the owner is bound to abandon the whole vessel, is not admitted. If a ship and cargo are insured, the owner can not abandon either the ship or the cargo alone. But if the owner of one-fourth of a vessel insure his part, and the other owners do not insure, can it >be seriously contended that the owner who did insure can not recover, merely because he can not give up the property not insured? All the books require is, that the insured abandon to the insurer his right to the property insured, so that he may stand in bis place. Park on Ins. 143.
    But it is insisted that the case is not onepn which an abandonment could be made, because the injury was not half of seven thousand dollars. This point, we supposed, was conceded ; for we ■have no recollection of the question having been discussed before the jury; indeed, the charge and verdict shows it was not, and if it had have been the intention to raise the question as to the right, it was a question of fact which was for the jury to decide. Phil. Ins. 400; 3 Cranch, 386-391. But if it is properly before the court, it is evident that it is a clear ease of abandonment for several reasons :
    1. The voyage was broken up and could not be pursued, and the vessel was at a place where re'pairs could not be made. 6 Mass. 483.
    2. Because a great expense was necessary, and unless the underwriters would have agreed to pay that expense, the right to abandon did exist.
    “ The cases where the insured may abandon are : if the voyage ■be lost or not worth pursuing; if the salvage be high ; if further expense be necessary; if the insurer will not, at all events, undertake to pay that expense.” 2 Condy’s Marshall, 580; 2 Burr. 1209; Park, 145.
    *3. Because the actual expense of repairs, as we contend, [471 was more than one-half of the value.
    Our claim is not for the ordinary wages of the crew. On the ■contrary, it is for the extraordinary wages and the extraordinary expenditures for provisions, etc., that we claim; and so G-azzam v. Cincinnati Insurance Company is not opposed to our claim. It stands upon the same principle as any other extraordinary expenditure. The seamen are not entitled to wages in case of wreck before the voyage is terminated; yet when the voyage is broken up, when it is impossible to proceed further, they may claim pay for their extraordinary exertions by way of salvage. Phil. Ins. 468.
    But this crew, in coming from the port of distress, ought to be considered as re-engaged. It is a new voyage to all intents and purposes, and has a new object in view.
    But these expenses are claimed as extraordinary, because they have been incurred at the solicitation and request of the defendants, to prevent what they considered a greater evil, viz: an abandonment. The court is specially referred to Hughes on Insurance, 327, on this question. He says: “If an underwriter authorize the insured to do what they conceive to be best under the circumstances, he is bound by acts done by the latter, in the exercise of a sound discretion.”
    Again, suppose the plaintiffs had not seen cause to have repaired at all, and had sued as for a total loss, but on the trial were not able to prove a total loss, would they not have been entitled to a verdict for the actual injury sustained? Most assuredly they would. 2 Condy, 729; Hughes, 372; Park, 399. And the amount of that injury would have been the expense of repairing her, and this must have been determined by the opinion of men acquainted with the business. If at the port of distress there were no ship carpenters to be had, what would ‘ it cost to procure them? Would it be cheaper to take carpenters to the boat, or to make the temporary repair and navigate her to the most convenient, port? These questions would suggest themselves to the mind naturally, and lead to the correct conclusion.
    It is perfectly immaterial, therefore, whether this was a case-where an abandonment could have been made; the question presented to the court is, what was the actual damage sustained at the place where she was injured — what would it cost to repair her there. Was it prudent or imprudent for the captain to 472] *take her to a convenient port? Was the expense increased by taking her to New Albany? If not, then defendants are not injured, whether they were bound by their agreement or not.
    The case in 1 Conn, does not militate against our position. In that case the voyage was neither ended nor broken up. The seamen were under the customary wages, and their .services were no extra charge to the owner.
    As to commissions, we claim them on the ground that they were paid in a foreign port. The owners live in Florence, Alabama. The funds were raised in Louisville. The ports of the different states are foreign ports to each other. If a bill of exchange is drawn in one state on a person in another state, it is a foreign bill. The states are, for all judicial purposes, foreign to each other. The allowance is claimed because it is a customary thing to transact business at a distance' by an agent, and there is as much reason for it in this case as any other. •

   Judge Wright

delivered the opinion of the court:

The motion for a new trial first claims our attention. The items of Robinson’s bill are by the jury placed under our supervision in settling the law of the case, and it will not be necessary to grant a new trial on that account; even if some of the items in the amount were improperly charged. But if it was not so, there was evidence given to the jury upon those items, as upon all the other matters objected to as found without evidence. The evidence submitted warranted the jury in finding as they did, as to all the general items, but that for the wages of the crew as laborers; and this court is not inclined to weigh the evidence after the jury, to see if they might not come to a different conclusion on the same premises. It is only where a verdict is palpably against the evidence, or the decided weight of it, that courts are warranted in interfering to set it aside, in order to send the cause to another trial. That is not this case. The motion for a new trial, therefore, is overruled. The claims for the wages of the crew as laboring hands we will consider hereafter.

The plaintiffs assert a claim to all the items returned by the jury, because the case made was of an injury warranting an abandonment for a total loss, and they were prevented from abandoning by the agreement of the underwriters to pay for the repairs.

The authorities show that where the underwriter, by his interference, prevents the insured from abandoning, he is liable 478] *for all the loss sustained by the injury to the extent of his insurance. 2 Cond. Marsh, on Ins. 598; 2 Term, 407. And if the right to abandon exist, and the underwriter agree to pay for the repairs, he may be held on such agreement even beyond the amount insured. 2 W. 6; 6 R. 3, 9; 3 Mass. 51, 437; 2 Term, 407.

It is insisted that as the voyage was broken up and lost, that circumstance authorized the insured’ to abandon. 3 Mason 51, 437. If the right of the plaintiffs to abandon, depends upon the breaking up of the particular voyage in which the Galena was employed at the time of the injury, it can not be regarded in this case. The insurance here is on the boat upon time, and has no relation to the voyages of the boat, or the freight she'carries. If the boat lay in ordinary the whole time, she is at the risk of the insurer, and it is ■ no part of the contract that she shall make any voyage. The breaking one up, then, can confer no right on the insured.

'The finding of the jury is, that the boat was not abandoned to the defendants. The plaintiffs proposed to abandon, but were prevented by the agreement of the defendants to pay their proportion of the costs of repair. This-is not an interference with the boat, nor an agreement to pay all repairs, but simply an agreement to pay their proportion of the costs of repair; that is, what they were liable to pay. If the insured had a right to abandon, this agreement to pay could not have prevented them from doing so, in any way to increase the liability of the insurer. The interference seems to us simply this, if you do not abandon and proceed in the repair, we will pay our proportion of the repair. It appears evident to us that the agreement precludes the idea that they were understood to agree to pay all expenses and repairs, and that the agreement prevented the abandonment. The proposition to abandon not being persisted in, the parties were left to their legal liabilities.

We are next to consider the items of the verdict. The defendants object to the whole, and,

1. Is the whole amount of Eobinson’s bill chargeable upon the insurer? I have looked over the account. The charges are expressly made as for repairs of the injury to the Galena at the Colbert shoals, on the Tennessee, and sworn, to as such. The items are such as would ordinarily arise in such repairs. No particular item is objected to. The objection is directed *more against [474 the aggregate amount than the charges. The jury find the payment of this bill part of the expense of repairs.

2. As to the residue of the amount found for repairs íd the general item, it is not objected to.

3. The next item is for the wages of the crew between the founder of the boat and their discharge at New Albany. The decisions we have heretofore made on this point should put this item at rest In Perry v. Ohio Insurance Company, 5 Ohio, 306, and in Gazzam v. Cincinnati Insurance Company, ante, 73, this court expressly decided that the insurer was not liable on this kind of policy, for the wages and provisions of the crew, even though they were exclusively employed about the repair of the injured boat. The insured is only liable for the extraordinary expense occasioned by the injury, which does not include expenses for the mere delay of the boat, or ordinary wages for her navigation to the port of repair. These decisions, in our understanding of them, exclude from the verdict the item for the wages of the crew before their discharge at New Albany, and the item for the provisions of the crew. Besides, the boat on her way to the port of repair, earned towage of another boat, and passage money, one hundred and seventy-five dollars and fifty cents, which is credited in the- account. Instead, therefore, of being an unmanageable wreck, to be driven by external power, she was earning freight.

4. The next item found by the jury and objected to, is that for commissions on the money advanced for repairs. The right to this charge will be determined by the answer to the question : was New Albany, at the foot of the falls of the Ohio, a foreign port to the insured, upon a policy on time to navigate the western waters ? Such commissions for raising money have been allowed as a charge upon the underwriter, when from necessity the assured has been compelled to raise money in a foreign port. The expense of raising funds in a foreign port is inevitable, and therefore chargeable on the underwriter. But no such charge is admissible where the expenditure is at home. 1 Conn. 242. The policy in this case has express reference to the western waters as the range of the boat. She may run on them or lie still, in -either event the risk attaches. The policy was executed at .Louisville, the expenses were incurred there. Without other evidence we must regard that place the homo of the boat. The undertaking is to pay the loss, if it exceed ten 475] per cent., sixty days after proof of loss. *What do the terms-proof of loss mean in this policy? We think it must, of necessity, .include proof of the fact of loss, and the amount of the loss if partial, or if not, that it exceeds the whole amount at risk. The underwriter has no right to do the work in his own manner, and with his own materials. His undertaking is to pay the amount, not to do the work. 3 Mass. 85. This item, therefore, is not admissible-

The only remaining item is that for the wages of the crew, while engaged in the repairs at the request of the corporation,, after they were discharged as a crew. The amount found by the jury includes the wages of the captain, mate, clerk, several engineers, cook, and common hands, at a rate of compensation ranging from fifteen to one hundred and seventy-five dollars a month. The jury find that some of the hands after their discharge were employed by the captain at the request of the boat’s carpenter to-expedite the repairs. The captain was not, therefore, among-those of the crew employed; he was the employer. His wages are-to be stricken out. The proof was that common hands were to be had, at the place of repair, for from seventy-five to eighty-seven and a half cents a day, finding themselves. If the crew, including-engineers at one hundred and seventy-five dollars a month, were-discharged as a crew, and employed as hands in expediting the-, repairs, they would be entitled only to the pay of common hands. The jury find that their employment did not increase the expense-of repair. In this they must have erred, or it must appear that their extraordinary wages were occasioned by extraordinary labor, of which there was no evidence. Robinson, the carpenter, says, in his deposition, “ the captain retained some at my request, for the purpose of aiding me.” Webb, the captain, says, the hands who remained with the boat whilst the repairs were progressing,, were such hands as I was pleased with, and I kept them that did remain in that service with a view of having them altogether, that. I might command their services when the boat should be repaired.” The account rendered is for payments, as we have seen for the different officers and men of the boat, at the wages pertaining to-their different stations and grade- of employment. As hands engaged merely in the repair, they were only entitled to the wages of such hands. Webb’s deposition would seem to make it pretty clear that some other consideration entered into their discharge and new employment, beyond the mere labor on the repairs ; they were, in part at least, employed that they might be at command, ready for service, when the repairs were completed. *This [476 evidence and the manner of keeping the'accounts render this whole item suspicious. We have doubted if it should not be altogether-rejected, the confusion in the accounts arising from plaintiff’s manner of keeping them ; but upon the whole, conclude that so much should be allowed, as the work of all the crew, except the captain, amounts to, at the wages of common hands, say seventy-five cents a day. At this rate the days charged three hundred' and thirty exclusive of Sundays, would make the sum of two hundred and forty-seven dollars and fifty cents.

Arranging the verdict upon these principles, it will stand as follows:

For the expense of repairs....................................... $2,362 23

Additional for the crew employed as hands three hundred and thirty days, exclusive of Sundays, at seventy-five cents per day......................................... 247 50-

Total................................................................. 2,609 73

Deduct proceeds of two lighters sold,......................... 25 00

Whole loss......................................................... $2,584 73

Five-eighths of which is.......................................... 1,846 23

Deduct one-third new for old,.................................. 615 41

And the amount of loss is.................................... $1,231 82

Add interest from sixty days after repairs completed, say from June 8, 1832, to May 2, 1834, nineteen months and twenty-four days,................................ 145 64

Sum for which the verdict is to be entered............... $1,377 46

The plaintiffs may take judgment for that amount, or if they refuse, a new trial will be awarded. Judgment for the plaintiffs. 2 Caine, 79.


author: Judge Lane

text:
    Lessee of Stuart and others v. O. Parish.
    Land sold for taxes before patent issues, the legal title of the patentee not affected by such sale.
    This case was adjourned from the county of Sandusky.
    Coffinberry and Deckerson, for plaintiff.
    Parish and Spink, for defendant. *
   Judge Lane

stated the case and delivered the opinion of the ■court :

The facts of the case are agreed.

In 1817, Josephus B. Stuart became the purchaser from the 477] *United States of tract No. 5, in the Sandusky Reserve,” under the system of purchases from the United States which then prevailed, upon which he made the first payment.

In 1821, the purchase money being unpaid, he took the benefit of the laws then enacted, in an eight year’s credit on the land.

In 1826 it was entered on the list for taxation, and the taxes of 1826-37 being unpaid, the land was sold for taxes to Strain, who took possession, and whose title is held by defendant.

In 1830 Stuart completed the payment of the land, and received patent from government, by which he claims title.

Counsel have discussed the question, whether the land was liable to taxation before patent issued, and whether the tax was properly levied. We entertain the belief that these questions need not be decided. The sale in 1827 transferred, at best, the title of .'Stuart which he then held, and his title then was equitable only. His subsequent acquisition of the legal title did not inure to the benefit of that purchaser, for the sale of his interest by the public ■officer, raised no estoppel against him as if he had transferred with warranty. Admitting, then, for present purposes, the legality of the sale, and that Stuart’s interest passed by it, those rights being merely equitable, offer no defense to an action of ejectment by the holder of the legal title.


text:
    Vattier v. Lytle’s Executors.
    Judgment creditor purchases land on his own execution as defendant’s property, takes a deed, and enters satisfaction. The title fails. He can not have the satisfaction set aside and a new execution awarded.
    This cause was adjourned from Hamilton county. It was a scire facias setting forth that the plaintiff, in 1824, recovered a judgment against Lytle (then living), as survivor of St. Clair, for six thousand three hundred and sixty-seven dollars and seventy-four cents, besides costs; that in March, 1825, he issued a fieri et levari facias to the sheriff of Clermont county, which was levied upon one thousand acres, part of a survey of fifteen hundred acres in *the name of De Benneville ; that the land was appraised [478 at eight dollars per acre, advertised, and in October, 1825, duly sold to the plaintiff upon a venditioni exponas, for the sum of five dollars and thirty-three cents per acre ; that the proceedings upon the return of the execution were duly examined by the court, found correct, and the sheriff ordered to make a deed to the purchaser, which was done accordingly. The plaintiff avers that by the sheriff’s return it appears he sold one thousand acres of land on the execution, when in truth only five hundred acres were levied upon, or are included within the boundaries set forth in the returned boundaries of the levy. He also avers that as the levy was made, and from thence hitherto, Lytle “had no right, title, interest, claim, or demand whatever, in, to, or over the land levied upon, either in law or equity,” and all the proceedings upon the said execution are void in law. By means whereof the plaintiff, although appearing by the records aforesaid to have satisfaction for the sum of five thousand three hundred and thirty-three dollars and thirty-three cents, the amount of said sale, yet has, in fact, received no satisfaction upon said judgment, but the whole remains unsatisfied, and he has acquired no title to the lands sold and conveyed to him upon said execution. The writ of scire facias calls upon the defendants to show cause why the levy and all the subsequent proceedings, including the order of court, the deed, and satisfaction, shall not be set aside and vacated, and the plaintiff have -execution for the full amount of his judgment, as ii no execution had issued and been levied. Since the service of the
      scire facias, Lytle has died, and his executors have been made parties. They demur generally to the writ which is joined.
    D. J. Caswell, for the plaintiff:
    The object of the plaintiff is to avoid a satisfaction entered of record by mistake, so that he may be enabled, by a new process, to make the money due upon his judgment.
    This proceeding by scire facias is in the nature of a bill in equity, and the relief prayed for is sought upon two grounds:
    1. That the sheriff, by mistake, levied upon and sold to the plaintiff a tract of land to which the execution defendant had neither possession nor claim of title, and that satisfaction has been entered of record for such sale by mistake, no real satisfaction having been obtained.
    470] *2. That the sheriff levied upon the land mentioned in the writ of scire facias, as a tract containing one thousand acres, sold the same by the acre; whereas, in truth and in fact, the actual .quantity of land contained in the tract was less than that sold by the sheriff, and for which satisfaction was entered, by more than five hundred acres.
    The sheriff not only mistook the number of acres, but the entire tract, and actually sold to the plaintiff the whole town of Will■iamsburgh, to every portion of which, as well as the tract surrounding the town, the defendant had parted with his title before this judgment was obtained.
    There can, therefore, be no doubt but that equity requires that the sale should be set aside, and the satisfaction vacated, as the plaintiff can never derive any benefit from his purchase, and the defendant has sustained no loss by the sale. The plaintiff, by this mistake and delay, has lost his lien upon other property, and may •consequently bo postponed to the sagacious and industrious creditor; but, as between the plaintiff and defendant, I can see no reason why the entry of satisfaction should not be vacated, and the plaintiff permitted to proceed against such property as he can find, or remaining assets in the hands of his administrator.
    The only ground upon which the defendant can claim to have a credit entered on the judgment, is that something has been paid; that some interest of his has been disposed of, for the benefit of the plaintiff.
    In this case nothing has been paid, nothing has been received. It is an attempt on the part of the defendant to retain an unconscientious advantage, originating in the mistake of the sheriff, and the court are called upon to lend their aid to and sanction the measure, by a misapplication or perversion of the maxim “ caveat emptor.”

    That we are entitled to relief, and that this is the proper mode of seeking it, see the case of Arnold v. Fuller’s Heirs, 1 Ohio, 458; 1 Root, 453; 6 Bacon’s Ab. 120; 4 Day, 222. The court is respectfully requested to examine the reasoning in those cases, and. also in 5 Cowen, 38, before they refuse the relief here sought.
    Upon the second ground, also, I suppose the plaintiff entitled to relief.
    *If the land had been sold by the tract, without reference [480 to the quantity, for five thousand three hundred and thirty-three dollars and thirty-three and one-third cents, the plaintiff might be compelled to pay that amount, although the quantity should be less than he expected. But in this case, the valuation was by the acre, the sale was by the acre, and if a credit had been obtained upon the judgment for the above amount, upon the supposition that there were one thousand acres of the land, I can not see why the plaintiff should not be permitted to show by proof the extent of the deficit. No reason can be assigned why the defendant should have credit beyond the amount of the sale.
    C. Fox and E. S. Haines, for the defendant:
    It is difficult to perceive upon what grounds the plaintiff can sustain this suit. He complains of no fraud or misconduct on the part of Lytle, does not suggest that Lytle induced him to levy on the property mentioned in the writ, nor that he did not know, or had not as good an opportunity of knowing the actual situation of the title to the property at the time he purchased as since. He complains of no irregularity in the proceedings of the officer on the executions; in short, he has no complaint, except that he bought General Lytle’s right to a tract of land, whatever that right was; and now he finds fault, that Lytle had not so good a title as he expected, and, therefore, he wants this court to declare the levy, valuation, sale, and deed utterly void.
    If there is any authority to be found to sustain such a principle, we know not where it is.
    It is a rule applicable as well to sheriffs’ as to private sales, and to which there is no exception, that the purchaser of real estate, where there is no fraud, must be satisfied with the title and covenants of his grantor. If the title is bad, and he does not secure himself by covenants, he must bear the loss. There is no implied covenant as to title to real estate. The maxim caveat emptor is applied in its fullest force to such sales. The law on this subject is collected in 2 Caine, 191, 192.
    This doctrinéis peculiarly applicable to purchasers of real estate on execution. As remarked by the court in Thayer and Sturgis v. Sheriff of Charleston, 2 Bay, 171, “ These sales are made by operation of law, in which the will and consent of the defendants are 481] never consulted. They are forced *upon them, whether they assent or dissent to or from them, and it is their right, whatever that may be, more or loss, that is sold by the sheriff. Again, there is no warranty in law, either express or implied, raised on any of the parties concerned in such sale, neither on the part of the former owner, the defendant, nor the sheriff. Again, every man who goes to a sheriff’s sale ought to take care and examine into the title of the defendant carefully before he attempts to bid.” See also 5 S. & R. 225; 9 S. & R. 138; 1 Call, 24.
    We conceive, therefore, that were this the case of any other purchaser than the judgment creditor, there could be no pretense of 'his being entitled to any relief on account of defect of title.
    Is there any reason for making a distinction between purchasers? When a judgment creditor undertakes to purchase the property of his debtor, he places himself on a level, as to the rights, with all purchasers; if he realizes a good bargain, he is fortunate; if he makes a bad bargain, he is in the same situation as others who are disappointed in their speculations. He has no rights as a purchaser which other purchasers .are not invested with. If, then, any other person purchasing under the same execution could have had no relief on account of a want of a title in Lytle, the plaintiff can have no relief.
    But it is supposed that the case of Arnold v. Fuller’s Heirs, 1 Ohio, 4G3, has some application to the case favorable to the plaintiff. We think that case decides nothing favorable to the plaintiff. In that case, the proceedings subsequent to Fuller’s death were adjudged irregular and void. The decision is nothing more than the recognition of a familiar principle, viz: whenever a judgment debtor dies before levy, it is irregular to proceed on the judgment until there are proper parties in court. There is no irregularity-pretended in the present case. The judgment was properly obtained; there was no change of parties; the execution was issued, levy made, land sold, sale confirmed, and deed made, while the parties were all living. There is not a single feature, therefore, presented in this case, which formed the foundation of the judgment in the case of Arnold v. Fuller.
    The simple and only proposition presented in the present case is, whether the mere fact of Lytle’s having no title to the land sold is sufficient to induce the court to set aside the sale. We think not. We think that if such applications are listened *to, [482 there will be no end to litigation. The judgment creditor is the last man that ought to be permitted to make such an objection. He knows, or ought to know at the time of making his levy, what right the judgment debtor has, and if he buys that right he ought to be held to his bargain. He brings the property to sale at such time as he pleases, and has, in short, the whole control of the sale and bid, while a third person, who happens casually to attend the-sale, has no such control over the matter. The one, we have shown, could not resist the payment of the money on the ground of the-title being defective. We think the other stands in no better situation.
   Judge Wright

delivered the opinion of the court.

This is not a ease of void process, nor one where satisfaction has been entered upon a judgment by mistake. The case of Arnold v. Fuller, 1 Ohio, 466, and that of Stoyd v. Cady, 4 Day, 222, were both to vacate a satisfaction growing out of void process. The writ of execution in the case before us was valid, and the-levy, appraisement, sale, examination by the court, order for deed, and the execution of the deed, all in fact took place. The case discloses an alleged after discovery of a failure in the title of the judgment debtor, whereby the plaintiff failed to realize the satisfaction or the profit he expected, wherefore he prays that all the-proceedings may be set aside, and an opportunity afforded him to proceed again by new execution.

The maxim caveat emptor applies to all purchasers at sheriff’s-sale. In Smith v. Painter, 5 Serg. & R. 225, the judge pronouncing-the opinion of the court, says : “ The sale by sheriff excludes alL warranty. The purchaser takes all risks. He buys on his own knowledge and judgment. Gaveai emptor applies in all its force to him. If this- was not the law, an execution, which is the end •of the law, would only be the commencement of a new controwersy.” The defect of title is no reason for setting a sale aside which has been fairly made. If there is fraud, that will affect ¡sales by sheriffs as it will all other sales. A case is reported in 9 Serg. & R. 156, of a suit brought by the sheriff for the purchase ■money. The defendant pleaded that the judgment debtor, at the ■time of the levy, etc., had no estate, right, title, or interest in the land sold, having, bona fide, sold and conveyed it by deed of prior •date. The court held it no defense that there was no title. They ,say: “ It is a mistake when it is supposed the sheriff sells a sound 483] *title. He sells the claim of the defendant, and no more; .as free and as clear an estate as the debtor held.” The same doctrine is recognized in 11 Serg. & R. 138, and 1 Call, 24.

If we were disposed to disregard the maxim caveat emptor, and •introduce a new rule, how would the case before us stand? Has the plaintiff entered upon the land he purchased and been evicted? •Or does any one dispute his right to hold? Is the land still vacant, and has there been no attempt on the part of the purchaser to obtain the possession ? Has he tried his title at law, and been •defeated? The averments in the writ do not respond to these inquiries. The allegation is that the defendant had no title at the time of the levy, and has acquired none since. There is no express allegation that the title is outstanding in any one else. It ■seems to be an attempt in this way to try the title of the judgment debtor in the land levied upon, at the instance of the plaintiff, and purchased by him. The writ, indeed, calls upon the defendant to set forth his title and assert a claim, if upon examination it shall be adjudged insufficient for any cause, that the levy and all subsequent proceedings may be vacated; though, perhaps, the cause for which the title is adjudged insufficient may be that of a conflicting claimant, who may never set it up, or in any way .use it against the right of the purchaser. It has more the appear.ance of a bill in chancery for discovery and relief, than a writ of scire fictas to assert a mere naked legal right.

We are of opinion the writ itself shows sufficient cause against granting its prayer, and sustain the demurrer. Judgment for the ■defendants for costs.