
    James Chambers and Henry A. Heiser v. Frederick Grantzon.
    1. To authorize the master of a vessel, being in a foreign-port, to make a sale of her which will be valid and vest a title in the purchaser, there must be such a necessity for the sale, in view of the expenditure necessary to put the^ship in a condition to bring home her cargo, and the means of making needful repairs, that no person of prudent and sound mind could doubt that a sale is the only way of preserving for the owners, or insurers, any part of her value.
    2. It is not enough that the master acted in good faith, if a necessity for the sale be not shown.
    3. Where there is conflicting evidence upon that question, and it is withdrawn from the jury, and a verdict taken subject to the opinion of the court, at general term, a new trial will he ordered.
    4. It is irregular to take a verdict, subject to the opinion of the court at general term, where the case presents questions of fact, to be ascertained from contradictory or uncertain evidence.
    (Before Woodruff, Moncrief and Robertson, J. J.)
    Heard October 4,
    decided December 8, 1860.
    This is an action to recover the schooner Elizabeth (or Emily), from the possession of the defendant!
    The defense alleged the schooner to be the property of Charles William Maxwell Heddle, of Sierra Leone, in Africa, and that the defendant was appointed master of said vessel, by said Heddle as such owner, and as sucR master thereof the defendant was in possession of said schooner. He also alleged that the real parties in interest in the action, were the Atlas Mutual Insurance Company.
    The issues were tried on the 10th and 11th of October, 1859, before Mr. Justice Slosson and a jury.
    It appeared in evidence, that the plaintiffs, in the fall of the year 1854, were the owners of the schooner, then valued at about $8,000, and sent her with a valuable cargo (worth about $13,000), on a trading voyage to the coast of Africa, under the charge of one Captain Stanhope. On her arrival at Sierra Leone, in November, 1854, the captain had several surveys of the vessel and cargo; the surveyors recommended a sale of the vessel, and on the 12th day of January, 1855, the vessel and apart of the cargo was sold, the residue of the cargo being disposed of on the first of February, 1855. The gross amount of the first sale was £2,335 3s. 9d., the expenses £385 12s., leaving a net balance of £1,949 11s. 9d. Charles W. M. Heddle, (under whom the defendant held possession) became the purchaser of the schooner at such sale. Testimony was also adduced showing, or tending to show, the condition of the vessel on her arrival at Sierra Leone, and also at the time of sale, a portion of which evidence was in conflict with the statements, or the correctness of the views and recommendation contained in the report made by the surveyors. It also, appeared that vessels could be repaired at Sierra Leone. The actual cost of repairs made upon the schooner, with which she left Sierra Leone and' reached the port of New York, was £1'75. When the evidence on the part of the plaintiff was closed on the trial, the counsel for the defendant moved to dismiss the complaint, whereupon the court overruled the motion to dismiss, and directed a verdict for the plaintiff, subject to the opinion of the court on ques- • tions of law, with liberty to turn the case into a bill of exceptions, to be heard first at the general term of the court, with liberty for the general term to order a non-suit. To which ruling the defendant excepted.
    The court further announced, “ that the only question for the jury to pass upon would be that of the value of the vessel,” and charged the jury thereupon.
    The jury found a verdict for plaintiff for the recovery of the vessel, and found the value of the vessel to be $1,200 ; and the court directed the entry of the verdict, subject to the opinion of the court upon a case to be made, with liberty to turn the same into a bill of exceptions, and that the case be first heard at the general term.
    A motion was made at the same (trial) term, October 20, 1859, before the same justice, upon the minutes of the trial, to set aside the verdict and for a new trial, on the ground that the verdict rendered is against the weight of evidence and the damages excessive; and after counsel for the respective parties were heard and due deliberations had, the motion was denied with costs.
    The case now comes to the general term, in pursuance of the aforesaid order and direction, for judgment upon the verdict under the direction given at the trial.
    
      William Tracy, for Plaintiffs.
    
      E. C. Benedict, for Defendant.
   By the Court. Moncrief, J.

—A material, • if not the pnly or most important question arising upon the issue and the evidence adduced on the trial of this action, was whether the sale of the schooner by the captain, and its purchase on behalf of the defendant, were made under circumstances which, in fact and judgment of law, would warrant such sale and carry a title to such purchaser.

All the cases admit that it is not sufficient that the sale was bona fide and intended for the benefit of all concerned; it must have been necessary. (Parson's Mer. Law, 375.)

In Somes v. Sugrue, (4 Car. & Payne, 276,) it was said : Undoubtedly the word “ necessity” is not to be confined to-, or so strictly taken as it is in its ordinary acceptation. There can, in such a case, be neither a legal necessity nor a physical necessity, and therefore it must mean a moral necessity; and the question will be whether the circumstances were such that a person of prudent and sound mind could have no doubt as to the course he ought to pursue. The point principally for consideration will be, the expenditure necessary to put the ship into a condition to bring home her cargo, the means of performing the repairs, and the comparison between these two things and the subject matter which was at stake; and it must not be a mere cast, not a matter of doubt in the mind, whether the expense would or would not have exceeded the value; but it must be so preponderating an excess of expense that no reasonable man could doubt as to the propriety of selling, under the cirpumstances, instead of repairing. (Rogers v. Murray, 3 Bosw. 357.)

The master can sell the ship only in cases of extreme and urgent necessity; that is, only when it seems in all reason impossible to save her, and a saléis the only way of preserving for the owners or insurers, any part of her value. Actual necessity, not the pretence of its existence by the master, must exist. (Pars. Mer. Law, 375, 376 ; 4 Wend. 52.) Such a necessity (the captain acting morally), creates an exception, and will excuse his departure from, the original duty cast upon him of navigating and bringing home his vessel. (Abbott on Ship., 4th ed. 243.) In the case of the ship Lady Banks, Cannan v. Meaburn, (1 Bing. 243,) it was submitted to the jury to find :

1st. Whether the master appeared to have acted, according to the best of his judgment.

2d. Whether the sale was conducted fairly and honestly.

3d. Whether there was a necessity for the sale of the ship.

In 8th Taunten, 155, the jury found that the master had acted throughout the whole transaction fairly and bona fide for the benefit of all concerned, and that the sale ‘was honestly, fairly and properly conducted, and directed with a view to the interests of all parties concerned. The court called upon counsel to point out how it appeared by the special verdict that the sale was necessary, and after hearing some observations from him to show that the necessity was to be inferred from the finding of the jury, expressed a clear opinion that the necessity did not appear, and awarded a venire de novo for the purpose of tryingwhether it existed or not.

The general term of this court, in Brower v. Orser, (2 Bosw. 357,) held it was irregular to take a verdict subject to the opinion of the court at general .term, when there are facts to be settled upon contradictory or doubtful testimony, and that the general term has no right of itself, to deduce facts •from evidence in order to found a judgment. (3 Bosw. 360 ; 16 N. Y. R. 602, 608.)

• If then the finding of facts, before alluded to, was material, and none appears in the' case, and the case in that respect was withdrawn from the jury, it follows that a new trial must be granted.

In the view taken, it is unnecessary to discuss the other questions raised at the argument.

A new trial ordered with costs to abide the event.  