16 Abb. Pr. 17 | N.Y. Sup. Ct. | 1863
If the defendant Tyler did not execute the bond, nor authorize its execution by Barnard, certainly the
The bond purported to have been executed by Barnard as attorney for Tyler; and the court must be presumed to have made the decree in personam, on the assumption that Barnard had been duly authorized to execute the bond for Tyler; but on the trial of this action, which was an action on the said decree or judgment in personam, the defendant Tyler offered to prove that he never executed the bond, and never authorized the execution of the bond by Barnard; which evidence was excluded by the court. If Tyler did not execute the bond, nor authorize its execution by Barnard, how did the court acquire jurisdiction of the person of Tyler, and a right to render the judgment against him in personam on the bond?
The pleadings in the proceeding in the U. S. District Court, related exclusively to the proceeding in rem against the vessel. There was no issue or allegation in the pleadings as to the bond or the execution of the bond. There was no citation or process on the bond. It cannot, therefore, be said, I think, that the rendering of the judgment on the bond involved or implied an adjudication as to the fact of the execution of the bond.
The form of the record is, “ and it being suggested to the court that the said ship was discharged on bond, in pursuance S" the act of Congress,” &c. In giving judgment on the bond, e court assumed, and probably had a right to assume, that it had been executed by Tyler as principal, and Boyd as surety; but I do not think it can be said that the record shows that the fact of the execution of the bond was adjudicated or passed upon. No doubt the jurisdiction of the court to render the judgment in personam on the bond was to be presumed (Che-mung Canal Bank a. Judson, 10 N. Y., 254); but the question is, whether Tyler, in the action on the judgment in personam on the bond, had not a right to show affirmatively and collaterally that he never executed the bond, nor authorized its execution by Barnard, and thus show that he never appeared in the action or proceeding in rem, in the IT. S. District Court, so as to authorize the judgment inpersonam on the bond against him, and that in fact there never was any subject-matter for such personal judgment as to him.
The evidence offered, I think, tended to show, not an error or
I think, therefore, the record of the proceedings and judgment in the United States District Court, did not estop Tyler from showing collaterally and affirmatively, in the action on the judgment in this court, that he never executed the bond, nor authorized its execution by Barnard. (Chemung Canal Bank a. Judson, supra; Dobson a. Pearce, 12 N. Y., 156; Starbuck a. Murray, 5 Wend., 148 ; Noyes a. Birthe, 6 Barb., 613.)
If Tyler was not estopped from giving the evidence by the ' record of the proceedings and judgment of the United States District Court, was he estopped upon the principle that, as one of the co-claimants of five-sevenths of the vessel, he had availed himself of the discharge of the vessel from the custody of the marshal, consequent upon the bond’s .being approved and presented to the marshal ?
I think we must assume from the case that the proctors of .Tyler and the other claimants of five-sevenths of the vessel, first presented the bond to the judge for his approval, and then to the marshal, and thus procured her discharge; and that on her discharge she was delivered up to Tyler and his co-claimant.
It, therefore, sufficiently appears, from this case, that Tyler, as one of the claimants and owners, had the benefit of the discharge of the vessel on the delivery of the bond, approved, to the marshal; and as Tyler must be presumed to have known the law, he must probably be presumed to have known that the vessel had been discharged and delivered to the claimants on the filing of a bond, executed by one or more of the claimants.
But there were seven claimants—six besides Tyler—as owners in common of five-sevenths of the vessel. Assume that Tyler, on the discharge and redelivery of the vessel, is to be charged with knowledge of the fact that a bond for her discharge had been given and filed, yet he may have supposed that such bond had been executed by one or more of his co-claimants. There is nothing in the case inconsistent with such a supposition on his part. An estoppel implies knowledge. I find nothing in the case to show that Tyler knew that a bond, purporting to
I do not see, then, upon what principle we can hold that Tyler was estopped from giving the evidence offered, upon the ground that he had availed himself of the bond as executed, and of the discharge of the vessel. If he had been the only claimant, perhaps, under the circumstances, we might have held him estopped.
Without considering any other question in the case, my conclusion is, that the judgment appealed from should be reversed, with costs, to abide the event of the action.
Ingraham, J., concurred.
Clerke, J., expressed no opinion.