p. 461the seizure, and were outstanding at the time of the trial, but in whose hands was unknown. The jury, under the direction of the court, found a verdict for the plaintiff for the sum of nine thousand two hundred and seven dollars and fifty-seven cents.
Motion for a new trial on the judge’s minutes was denied.
Vanderpool, Green & Cuming, attorneys, and Robert S. Green, of counsel for appellant, on the points discussed by the court, urged:
I. The learned judge erred in directing a verdict in favor of the plaintiff, for the sum of nine thousand two hundred and seven dollars and fifty-seven cents. The judge proceeded on the theory that this court, in the case of Bartlett v. Carnley ( 6 Duer, 194 ), had decided that in these cases the plaintiff was entitled to recover as damages the amount of any bills of lading which had been issued upon the cargo of the ship and were then outstanding. In Bartlett v. Carnley, the owner of the ship had paid the price of the goods in San Francisco. That was his actual damage. In this case the owner of the ship has paid nothing; and where is his damage ? If a bond had been delivered and suit was now brought upon it, certainly the measure of damages would have been only the outlay of the owner of the vessel up to the time of the commencement of the suit. And can the plaintiff’s recovery now be for more than it would have been if the bond had been given and suit was oh the bond ? In a suit against a sheriff for not taking sufficient sureties in the old action of replevin, the measure of damages was what might have been recovered on a sufficient bond (Baker v. Garrett, 3 Bing. 56). The fact that these bills are outstanding, and that the plaintiff may at some future time be called upon to pay something upon them, does not give him a right to recover the whole amount. The
p. 462amount of recovery is not certain ; it would vary with different testimony and different juries. The principle of Burt v. Dewey ( 40 N. Y. 283 ), covers the case. In the City of Memphis v. Brown ( 20 Wall. 289 ), one of the elements of damage claimed was for the failure of the city to guarantee the payment of bonds. The court holds that the damage is too indefinite; so here the damage is not only indefinite, but none has been suffered. Now why should the sheriff be called upon to pay into the hands of the owner of this vessel, leaving in the British provinces the full amount of the value of this property covered by the bills of lading, when he has not suffered any damages in consequence of the sheriff having seized it-? We never can recover it back, and he may never be called upon to part with a particle of it or suffer any damage.II. The charge of sixteen dollars paid Capt. Marshall for watching. The same requests to go to the jury were made, as in the other instances. This money was paid by the agent of the ship to a man named Captain Marshall. He was employed by. the agent to watch the vessel, at the same time the captain and crew of the ship, who had charge of her, were also there. It is submitted, that under no principle of law can we be held liable for such a charge.Benedict, Taft & Benedict, attorneys, and E. N. Taft, of counsel, for respondent, urged:
I. The plaintiff was entitled to hold and transport the flour in question under and by force of the statute, notwithstanding the attachments (4 Edm. Stat. 479).II. It being the lawful right of the plaintiff, to transport and deliver the flour, notwithstanding the attachments as provided in the statute, it was unlawful for the sheriff to seize and take it. The sheriff, in all that he did, was a willful violater of the plaintiff’s rights.
p. 463III. Independent of the statute, the plaintiff was entitled to hold the goods until his freight was paid, and until he was secured against any liability on the bills of lading (Bartlett v. Carnley, 6 Duer, 194 ; 3 Kent, 12 Ed. 228, note C ; Parsons on Ship. & Adm. 179, 209 ; Abb. on Ship. 595; Tindall v. Taylor, 28 L. & Eq. 210 ; The Hermitage, 4 Blatchf 474 ; See Ellis v. Willard, 9 N. Y: 529). He has a lien on the goods for his freight (See Parsons, as above).IV. The sheriff therefore was clearly liable, and as he refused to indemnify the plaintiff against the bills of lading as requested at the trial, the plaintiff was clearly entitled to a verdict for the full value of the flour for his indemnity, and for his damages ; as to all of which the evidence of the plaintiff was wholly uncontradicted, and there was therefore nothing for the jury. The court, therefore, properly directed a verdict for such items, as the plaintiff was legally entitled to recover.
V. The court did not err in any of the items of damages allowed.VI. H there are any items that should have been disallowed, it will not be a ground for reversal of the judgment, but only for reducing it pro tanto.The law was settled before the enactment of the statute—Session Laws of 1841, chap. 242 (4 Edm. Rev. Stat. 479)—that the owner or master of the vessel could insist that upon having the goods released and delivered under the attachment, the freight should be paid for the carriage, and a fuá indemnity against the consequences of any bill of lading signed by him. The statute directs what that indemnity shall be. It requires, before the attachment shall issue, the attaching creditor shall execute a bond with sufficient sureties to any or either of the owners or masters of the vessel on board of which
p. 464such goods shall be shipped, conditioned to pay such owner or master all expenses, damages and charges, which may be incurred by such owner or master, or to which they may be subjected for unlading said goods from said vessel, and for all unnecessary detention of said vessel for that purpose. Since the act went into operation no attachment can issue until the bond has been given. This is the only change made in the law. It prohibits the issuing of the attachment until the indemnity specified shall have been executed and . delivered to the master.
It appears the sheriff’s attention was called to the omission to give such bond, and he justified his action on the ground that he himself was indemnified.
The defendant’s counsel claims that the plaintiff ought not to recover the value of the goods, for the reason that the plaintiff had not been called upon to pay anything in consequence of the bills of lading in- the hands of other parties.
It must be regarded as too firmly established, as well upon principle as by authority, to be now questioned, that prior to the passage of the act, a master who had signed a bill of lading, could not, with prudence, deliver back the goods without having all the parts of the bill of lading delivered up to him. If any part has -been transmitted to third parties, they may have acquired an interest in the goods (See Abbott on Shipping, 739, marg. 595, and cases cited; 3 Kent’s Com. 228, note C). The statute did not in the least change the law as it stood before the enactment. It merely made provision that sufficient indemnity should be made to the master or owner before the attachment should be executed. In the absence of this bond of indemnity, the sheriff had no right to take the goods from the possession of the plaintiff. Having taken them in violation of law, the plaintiff is entitled to full redress, which is the full value of the goods, until the
p. 465bills of lading are surrendered or the bond of indemnity is given to him under the statute. On the trial, the plaintiff claimed to be indemnified by the verdict of the jury, unless a satisfactory bond was given to him. for any liability on the bills of lading. This was refused by the defendant. To the exceptions taken by the appellant to the items allowed there seems to be no conflict of evidence, as claimed by him, except in one instance.
I think the charge of sixteen dollars paid Captain Marshall for watching should be disallowed. Captain Marshall appears, by the evidence, to have been out of employment at _the time, and this sum was paid to him for looking over. the vessel while they were taking the flour out, and at the same time Captain Hankinson, the master, and the crew, were there ; it being a part of the duty of the captain to look after the ship when seized. This charge must be deducted from the amount recovered.
The value of the twenty-nine barrels of flour was fixed at the lowest rates proven.
The judgment should be affirmed, without costs on this appeal, upon the plaintiffs deducting the sum of sixteen dollars from the amount of the judgment.
Sedgwick, J., concurred.