In Admiralty.—The Princeton Steam Tug, for Sinking a Barge.

U. S. Circuit Court

(Southern District of New York.)

IN ADMIRALTY.

Before the Honorable SAMUEL NELSON, Associate Justice of the Supreme Court of the United States.

ON APPEAL.

THE PRINCETON STEAM TUG.

SINKING A BARGE TOWED ALONGSIDE OF THE STEAM Tug.

Where a contract is made to tow at the risk of the master and owners of the vessel towed, the tug is responsible for the exercise only of ordinary skill and diligence, that is she is liable for any negligence.

The burthen of establishing the want of ordinary skill and diligence under such a contract lies upon the party setting up the negligence.

An express and positive stipulation for negligence must be presented by the contract, before the question can be entertained by the court, and when so presented, whether it can be sustained upon any sound principle of law, yet remains to be determined.

Where the preponderance of evidence was adverse to the fact of any negligence, the decree appealed from in favor of the tug was affirmed.

The facts appear sufficiently in the opinion of the Court.

D. McMahon and W. Q. Morton, for the barge and cargo.
Cambridge Livingston, for the Princeton.

NELSON, J.-This libel was filed in the Court below against the steamboat Princeton by the owner, to recover the value of a cargo of coal on board a scow, which was taken in tow by her from the Raritan river, New Jersey, to the port of New York, and which was lost as the tug entered the tide in the East river. The following is the contract between the parties:

DECEMBER 14, 1847.

To the Captain of the Steam Towboat of the Delaware and Raritan Canal and Camden and Amboy Railroad Transportation Company:

Take in tow canal boat No. 650, Carroll, master, and tow the same from Philadelphia to New York and back again, at the risk of the master and owners, they paying the steam towing. I agree to have the within named boat towed according to the terms specified. PATRICK CARROLL, Master.

The Princeton arrived at Pier No. 2 North river, where she left some of the boats in her tow, and started from thence with a barge lashed on her larboard side, and the scow of coal in question lashed outside the barge, to convey them to Rutger's slip in the East river; and, as we have said, as the tow entered the tide, which was then strong ebb, the scow was submerged and went to the bottom. There were three hands on board the scow at the time of the accident, and they concur in at tributing the loss of the scow and cargo to the speed of the Princeton, at the time the scow struck the tide between Whitehall and Governor's Island; and also that they called repeatedly to the captain and hands on the tug, warning them of the danger, without receiving any answer or

In Admiralty. The Princeton Steam Tug, for Sinking a Barge.

slackening their speed; there were four persons on board the tug at the time, and two on board of the barge in tow, all of whom concur in stating that the Princeton was slowed before entering the tide, and had nearly lost her headway, and attribute the accident to the circumstances that the scow was heavily laden, and had been in a very leaky condition from the time she was taken in tow on the Raritan river. There was a captain of a tow boat lying at Pier No. 3 East river, who saw the Princeton coming round into the tide, and thinks she was moving at the rate of four knots an hour, but did not notice her slackening as she entered it till the scow went down. The preponderance of the evidence, I think, is in favor of the statement of the hands of the Princeton. The master of the barge who had no interest in the controversy, and was in a situation that afforded every opportunity to observe her speed, confirms in every material particular the hands on board the Princeton, as does also the steward. Under the contract to tow the scow already given, the steamboat was responsible only for the exercise of ordinary skill and diligence in her navigation-such care and dilgence as a prudent man would . exercise under like circumstances when engaged in his own affairs-in other words, she is liable for negligence, by which I mean the absence of ordinary and reasonable care and attention in the navigation. It is said that under this contract she can be made liable only in case of gross negligence; but it is somewhat difficult to understand exactly what is meant by this expression in the law, unless as said by an eminent English judge in a late case, it means little, if anything, more than negligence with an epithet. The absence of ordinary care and attention may be, under certain circumstances, gross negligence. But I do not enter into the supposed distinction between the different degrees of negligence, if there be any, in determining the right of these parties as their contract, in my judgment, does not contain a stipulation for negligence at all. Whether any such contract can be entered into and so upheld, upon any sound principles of law, will be determined when this question arises. It is not in this case. Some express and positive stipulation to that effect will be required before it can be presented for consideration. Agreeing to be towed "at the risk of the master and owners" does not exempt the tug from proper and reasonable care and skill in their navigation. Some evidence has been given that the Princeton was in fault in not entering the tide head on, instead of somewhat obliquely, as she rounded into it. The person in charge, as master, states that he did not enter it straight head on, but a little on his larboard bow; this, he thinks, is the safest course, having tried at different times various ways. There are different opinions upon the subject. The captain who was looking on at Pier No. 3, finds no fault in this respect; and all the evidence impeaching the course of the tug is slight and unsatisfactory. We have already stated that the owners of the Princeton, were responsible, under their contract, only for ordinary skill and diligence in the navigation of the tow; the burthen of establishing the want of this at the time of the disaster rested upon the libellant; and as I am of opinion, the preponderance of the evidence is the other way, it follows that the decree of the court below should be affrmed.

[The decision below was dismissing the libel with costs.]

N. Y. Superior Court.-T. Paton, D. Stewart and W. Paton agt. John J. V. Westervelt.

N N. Superior Court.

(October General Term, 1853.)

Before DUER, BOSWORTH, and EMMET, Justices.'

THOMAS PATON, DAVID STEWART and WILLIAM PATON, Appellants, against JOHN J. V. WESTERVELT, Respondent.

The mere fact that a judgment confessed, is confessed to secure as well a debt owing to a creditor other than the plaintiff, as one owing the latter, does not render it fraudulent and void as against creditors.

A Sheriff holding several executions against the same debtor, received at different times, cannot be required to treat those first received as dormant, merely because the plaintiffs therein gave to the sheriff a written consent that he might adjourn a sale under them, for forty-seven days after their return day, there being no agreement giving to the debtor a delay, or the use or benefit of the property in the meantime.

A plaintiff, in a junior execution, cannot sustain an action for falsely returning it, nulla bona, by merely proving that a judgment on which an older execution issued was confessed with intent to defraud creditors, that the sheriff was so notified, and was also notified that the proceeds of the property would be claimed on the junior execution. The sheriff is not bound to try the question of fraud, nor to decide at his peril which of the two creditors should have the preference, so long as he acts indifferently between the parties, and does not lend himself to either. If a sheriff has notice of incontrovertible facts, which would render it fraudulent, he is bound to treat it as fraudulent. The sheriff cannot defend an action for falsely returning nulla bona, by proof of a prior execution falsely returned, nulla bona. He can justify, under a prior execution, only by showing it executed, and the proceeds applied upon it, or by showing it unreturned, and the existing power as well as a subsisting duty to apply the proceeds upon it.

The sheriff is sought to be charged in this action for falsely returning three several executions. 1. One a judgment in the Supreme Court recovered by John H. Magher against Lovell Purdy, issued October 18th, 1847, returnable in 60 days, directing the collection of $1031.76, and returned, nulla bona, in August, 1848. On the 8th of June, 1850, the Administrator of Magher assigned to the plaintiff the judgment, all moneys due thereon, and all right of action existing against the sheriff by reason of the alleged false return. 2. One on a judgment in this Court recovered by the plaintiffs against Lovell Purdy and John C. Holland, issued the 18th of November, 1847, returnable in 60 days, directing the collection of $671.29, and returned, nulla bona, in June, 1848. 3. One on a judgment in this Court recovered by the plaintiffs against Purdy & Holland, issued on the 27th of December, 1847, returnable in 60. days, directing the collection of $422.68, and returned, nulla bona, in June, 1848.

On the 20th of August, 1847, the sheriff received an execution. issued on a judgment recovered in the Supreme Court by Charles Vyse

N. Y. Superior Court.-T. Paton, D. Stewart and W. Paton agt. John J. V. Westervelt.

against Purdy, returnable in 60 days, and directing the collection of $1823.20.

On the 18th of October, 1847, he also received an execution issued on a judgment recovered in the Supreme Court by Henry K. Toler against Purdy, directing the collection of $3032. This was received by him prior to the receipt of either of the three first named. The property sold by the sheriff produced sufficient to satisfy in full the judgment in favor of Vyse, pay the sheriff's fees and charges in full and leave a surplus of $52.24, applicable to some one of the other executions. It is insisted that charges of the sheriff, amounting to $439,7%, and the amount of which he retained out of the proceeds of the sale, are, on their face, illegal, and that such moneys are applicable to, and should be paid on one of the other executions.

The execution in favor of Vyse was paid in full by the sheriff out of the proceeds of the property sold!

The execution in favor of Toler was returned, nulla bona, October 2d, 1848.

The complaint charges that the defendant falsely returned three executions against Lovell Purdy "no goods." no goods." Two of the executions were upon judgments in favor of the plaintiffs against Purdy, and the other was in favor of John H. Magher, and was assigned to the plaintiffs. It also avers that the sheriff charged illegal fees.

The answer denies the neglect of duty or false return, or that illegal fees were charged, and states that before he received the three executions mentioned in the complaint, he had two other executions against the same defendant Purdy. One in favor of Vyse, and the other in favor of Henry K. Toler, and that all of Purdy's property was consumed on Vyse's and Toler's executions.

The plaintiff replies that Toler's judgment was fraudulent, and that after the payment of Vyse's execution, there was more property left in Purdy's possession than was required to satisfy Magher's and plaintiff's execution.

The other facts essential to an understanding of the points decided, are sufficiently stated in the opinion of the Court.

Chas. H. Smith, for plaintiff and appellant.

A. J. Vanderpoel, for defendant and respondent.

By the Court.-BOSWORTH, J.-When the three executions first named in the complaint were returned, the execution in favor of Toler was in the sheriff's hands unreturned. It was regular on its face, and assuming it to be valid, it was the duty of the sheriff to apply upon it any surplus remaining, after satisfying the execution in favor of Vyse. Assuming the Toler execution to be valid, and that it had not lost the priority which its prior delivery acquired, the returns made to each of the three executions, by virtue of which the plaintiff claims, was a true return. Purdy had no property out of which any part of either of those three executions could be collected.

N. Y. Superior Court.-T. Paton, D. Stewart and W. Paton agt. John J. V. Westervelt.

The mere fact that the judgment in favor of Toler was confessed to secure as well a debt owing to Olsin as one owing to Toler, did not render it void. Truscott v. King, 6 Barb., S. C. R., 346; Bank of Utica, v. French, 3 Barb. Chan. R., 293; Livingston v. Tracy, 6 J. R., 165. Nor is there any such evidence of an effort to collect more upon it than was due to the two as would justify the sheriff in acting upon the presumption that it was confessed with an intent to defraud creditors, or would authorize a jury to find, or the Court to declare that it was confessed with such an intent.

Is there any such evidence of interference by the plaintiff in the Toler execution, or by his attorney to delay a sale, or to give indulgence to the judgment debtor, as in judgment of law will deprive it of its priority?

Prior to December 27, 1847, there is no evidence of any thing more than mere acquiescence on the part of Toler in the delay to sell up to that time. His execution was returnable on the 17th of December, 1847. The sheriff could not have been coerced to sell sooner than on that day. If he had sold and returned the execution on that day, he would have completed its execution within the time allowed by law. On the 27th of December, after the lapse of ten days from the return day, the attorney of the plaintiff in the Toler judgment, and also the attorney in the Magher judgment, and the attorneys of the plaintiffs in two other judg ments, consented that the sale under their executions might be adjourned thirty days without prejudice to any party. This consent was sent to the deputy sheriff, and not to the judgment debtor. Why it was obtained or given is not shown. The Court has no fact before it, but the fact that such a consent was given. The paper does not, in terms or by implication, authorize the sheriff to leave the property with the judgment debtor, or absolve him from liability for its safe keeping. It would, perhaps, be an answer to an action by either of them against the sheriff for not returning his execution within those thirty days. It merely permits him, in his discretion, to adjourn the sale thirty days, which implies that he had already given notice of a sale to be had under these executions. There was no agreement for delay between either of those plaintiffs and the judgment debtor. The consent, standing alone, would seem to amount to no more than a declaration on the part of those giving it, that they would acquiesce in a further indulgence for the period of thirty days, but it is not an agreement with the debtor that he shall have such indulgence, or the use of the property for that period. Certainly it does not instruct the sheriff to delay the sale.

In Russell v. Gibbs, 5 Cowen, 395, the Court remarked: "But to say that an implied indulgence of six months, when no other creditor was pressing, is such a culpable negligence as to become per se evidence of a fraudulent intent to cover the defendant's property, and to delay and hinder his other creditors from collecting their just debts, would be judging very harshly of the motives of our fellow-citizens, and inculcating a degree of rigor, which may become highly oppressive to unfortunate debtors."

In Benjamin v. Smith, 4 Wend., 332 Rathbun & Hunt, in March,