Thayer v. Willet, Sheriff. open Court, that the property which he or they claim in such attached goods is only upon good cause and consideration, without fraud, covin, or deceit." The claimant was to enter his plea in Court to that effect. If contested, issues were to be joined upon the plea, and a jury impanneled to try them. If the property was found in the claimants, according to the plea, the goods were to be released from the attachment and restored. Another clause provides for security being given by the claimants, whose property is supposed to be without fraud or covin, in special cases of injury from the property being withheld, that they will proceed to try the question of property within a certain limited time. I think, also, that the case of Barber v. Devans et al., cited by Mr. Locke, (On Attachment, p. 41, note 5,) contains a principle to sustain this defense. On a plea of nihil habent, by garnishees, a question of fraud in the debtor in obtaining money which came to the garnishees' hands was tried. The numerous authorities cited by the defendants' counsel as to attachments under the non-imprisonment act and other statutes, contain some strong expressions of the Judges in support of their position. I have examined most of them. That of Van Etten v. Hurst, (6 Hill, 311,) states the proposition distinctly, and that of Van Kirk v. Wilds, (11 Barb., 520,) may be considered as exactly in point. The necessity of proving a debt, independently of the plaintiff's affidavit, noticed in some of them, (25 Barb., 29,) is obviated in the present instance by the admission that the plaintiffs were simple contract creditors. The legal rule established in Frisbey v. Thayer, (25 Wend., 396,) that a landlord with a distress warrant does not stand in the situation of a judgment and execution creditor, seems to me to furnish but a slight analogy to the present question, and to be very far from determining it. A new trial must be had MONCRIEF, J., concurred in the result. New trial ordered. costs to abide the event. Crosby et al. v. The New York Mutual Insurance Co. CROSBY et al., Plaintiffs and Respondents, v. THE NEW YORK 1. In an action upon a marine policy upon a ship, to recover for a total loss, 2. Where a vessel is so injured by the perils insured against that the assured (Before BOSWORTH, Ch. J., and WOODRUFF and MONCRIEF, J. J.) THIS is an appeal by the New York Mutual Insurance Company, the defendant, from a judgment in favor of Seth Crosby, Ferdinand Crocker, and George Lovell, composing the firm of Crosby, Crocker & Co., the plaintiffs, entered on a verdict rendered on a trial had before Mr. Justice PIERREPONT and a jury, on the 21st of May, 1858. The action was commenced on the 5th of November, 1856, on a Policy of insurance on the ship Adriana, for a voyage at and from New York to San Francisco and Benicia, and at and thence, &c. The Policy is dated March 21, 1856, and in it the vessel is valued at $10,000, the sum insured. The insurance is, in terms, "on account of whom it may concern," and the loss, if any, is payable to the plaintiffs. The action was brought to recover for a total loss. The complaint states that the insurance was made for the account of the plaintiffs, who, then and since, were interested in, and had a lien on, the vessel, her tackle, &c., to the amount of $10,000, together with all prior insurance thereon, "which interest was and is, by reason and by means of advances and supplies and outfits furnished by said plaintiffs to said vessel for said voyage," and also as trustees for C. C. Duncan, mortgagee in possession, and also as trustees for David Crooker, William D. Bosw.-VOL. V. 47 I Crosby et al. v. The New York Mutual Insurance Co. Crooker, Thomas D. Wilder, Augustus Palmer, Howard P. Wiggin, Samuel Swanton 2d, Horace Parlin, Silas W. Parlin, William H. Parlin, Theodore Ripley, and Isaac Preble, part owners of said ship, and also as trustees of W. S. Lindsay, Edgar P. Stringer, George Gladstone, and Edward Pembroke, mortgagees and bottomry holders in possession of said ship. The answer denied all the allegations of the complaint, and alleged that the ship was unseaworthy. At the trial, the defendants, when the cause was opened, stated "that they now admitted their liability for three-fourths of the loss, and only offered defense as to one-fourth, and that they defended as to this one-fourth solely on the ground of change of interest as to this one-fourth, after the inception of the Policy and before the loss." The Policy, the protest of the master and mariners belonging to the ship, and the ship's register, were read in evidence, and proof was given of service of the protest as proof of loss, and of a certified copy of the register as proof of interest. Depositions as to the fact of a loss and its cause were read. It was proved that the vessel encountered a storm on the 16th of April, and sunk on the 6th of May, 1856. It was also proved that William D. Crooker, a registered part owner, by a bill of sale, dated April 18, 1858, conveyed one-eighth of the ship to George W. Kendall and John G. Richardson; and that David Crooker, a registered part owner, by a bill of sale, dated April 21, 1856, conveyed one-sixteenth to the same parties; and that Theodore Ripley, a registered part owner, by a bill of sale, dated April 17, 1856, conveyed one-sixteenth of the ship to said Kendall and Richardson; and that these three bills of sale were delivered on the 24th of April, 1856. The plaintiffs' claim, by reason of the stores and ship-chandlery furnished the ship for the voyage, and their lien on the ship therefor was proved to be $4,161.50, with interest from March 19, 1856. The other facts material to be known are sufficiently stated in the charge of the Judge. The defendants requested the Judge to charge, "That the defendants under this policy are liable only for the proportions of the interests existing at the time the insurance was made, subsisting at the time of the loss, and that the plaintiffs must prove the interests as alleged in their complaint, and can recover only for such interests existing at the time of the Crosby et al. v. The New York Mutual Insurance Co. insurance, and averred in the complaint, as subsisted at the time of the loss. "That the change of interest by the conveyances to Kendall and Richardson, by the bills of sale of April, completed by the 24th of April, precludes any recovery but for three-fourths of the amount insured. "That the existence of the mortgages on the vessel is immaterial, the Company being bound only for the shares of the ship in which the owners' interest, covered originally by the policy, subsisted at the time of the loss." The Judge refused to charge the jury otherwise than as hereinafter stated, to which refusal defendants' counsel then and there excepted. The Judge in charging the jury spoke as follows: "You will be very much limited in your inquiry in this case, as the questions are few indeed upon which you are to pass at all. There is no dispute about the loss of the vessel, about the insurance, and the question of seaworthiness is not made. "The defense is, that on the 24th of April, there was a change or sale of a quarter interest of the ship, and that in consequence of that change (the Insurance Company never having given assent to it one way or the other) this policy does not cover the interest of parties who acquired it on the 24th day of April. They claim that the loss happened on the 6th of May following, and consequently that the parties who got one-fourth on the 24th of April were not insured under this policy. The plaintiffs on the other side contend, 1st, that this change of interest does not affect the recovery, and 2d, that this loss did occur on the 18th of April, prior to this transfer of the one-fourth interest. It is very clear that the ship went down on the 6th of May, and if you believe the testimony, it is very certain that she encountered a severe thunder storm on the 16th of April, as she was bound around Cape Horn, going south, and sprang a leak. On the 18th of April there was another storm, which increased the leak, and on the 21st or 22d of April, after a consultation of the officers of this vessel, they came to the conclusion to put in to the nearest port for safety, and they made for Bermuda. But the wind changed, and they were not able, as they supposed, to make that port with safety, and they turned about for another Crosby et al. v. The New York Mutual Insurance Co. port, and sailed for Halifax. The rest of the testimony is all before you. The mere fact that the vessel sank on the 6th of May, does not prove that she was not destroyed so far as to be covered by this Policy at an earlier date; the vessel might have been injured days before she went down, and though she did not sink until sometime after the injury, yet the ruin might have been done at the time she received the injury as effectually as though the vessel had gone down on the same day, if she did sink solely in consequence of that injury. "If the hands had all left the vessel on the 18th when they encountered this storm, and the vessel had tossed about for some time, and then gone down; yet if the injury which caused her to go down was such as to excuse the desertion and to cause the destruction, this loss did occur in contemplation of law before the 24th of April; so that, if you come to the conclusion that the storm which she encountered on the 16th or 18th of April, or at any time prior to the 24th of April, produced the fatal injury to this vessel, which caused her to sink, then the plaintiff is entitled to your full verdict in any view of the law which has been presented. But if you should come to the conclusion that she was lost in consequence of the storm that occurred after the 24th of April, after the transfer of the one-fourth interest, then your verdict will be for three-fourths; otherwise for the whole amount claimed. I do not see that I need to comment at all upon this evidence; it has been clearly presented; it has been nearly all in writing, and distinctly read; you will observe that the storm commenced on the 16th, and that on the 22d of April they put about for a port of necessity; on the 6th of May the vessel went down; you have heard that described; if you come to the conclusion that she received her fatal injury (as heretofore explained) prior to the 24th of April, your verdict will be for the plaintiffs, for the whole amount; but if you come to the conclusion that the fatal injury was received after that date, your verdict will be for three-fourths, and the calculations can be made by the counsel without detaining you." The defendants' counsel then and there excepted to so much of the charge of his honor the Judge: 1. As instructed the jury, that "the mere fact that the vessel sank on the 6th of May, does not prove that she was not des |