fense, and judgment should have been rendered for the defendant. (Marston v. Lawrence, 1 Johns. C., 397; Beals v. Cameron, 3 How. Pr., 414; Averill v. Patterson, 10 id., 85; Swart v. Borst, 17 id., 69.)

II. The former judgment was conclusive upon the parties, not only as to the matter actually determined, but as to every other matter which might have been litigated therein. (Bendernagle v. Cocks, 19 Wend., 207; Embury v. Conner, 3 Comst., 511, 522; Doty v. Brown, 4 id., 71; Sheldon v. Carpenter, id., 579.)

III. The fact of the names of the plaintiff and defendant being identical in both suits, was prima facie evidence that they were the same persons in both actions. (Hatcher v. Rocheleau, 18 N. Y. R., 87.)

The judgment should be reversed.

Wm. M. Niles, for respondent.

I. The appellant does not allege any other defense than a prior judgment for the same identical cause of action. We suppose that in a city of eight hundred thousand inhabitants, the mere production of a judgment roll against a defendant of the same name, is not sufficient evidence that it is the same defendant, especially if the name be John Smith.

II. Even if that were not so, the case in judgment is not "identical" in a single particular with that in suit.

One is for sales between May 23d, 1855, and December 25th, 1856; the other is for sales between November 9th, 1854, and December 24th, 1856. One is for colored linen shirts, cravats, &c.; the other is for colored linen shirts, hose, &c. One is for sales to amount of $72.50; the other for sales to amount of $122.50. One is alleged to have been sold for cash; the other is not alleged to have matured before January 1st, 1857.

One claims judgment for $72.50. The answer sets up a judg ment for $90.43, and no attempt to identify parties, goods, times or anything else, except by throwing up to the judge a paper purporting to be a judgment roll, and asking him to deprive the plaintiff of a claim sworn to as now existing, and admitted by defendant.

III. The แ answer is controverted as upon a direct denial.” That is, we deny that any judgment was recovered against this

Agate v. Richards.

defendant, and we deny that any judgment of this Court is for this identical cause of action. (Code, § 168.) Both then must be proved by the defendant, (1 Phil. on Ev., 2 ed., p. 6,) and the papers prove nothing on either of those points. Besides, the judgment roll produced is a mere nullity on its face. It does not show any appearance by defendant, and does not show a service within the jurisdiction. Perhaps the summons was handed to Richards in Australia, and then, he not appearing, the Court had no jurisdiction. (Code, §§ 33, 138.) And lastly, if all this were not so, the judgment is not properly pleaded. Defendant alleges a public record on information and belief.

The judgment should therefore be affirmed.

BY THE COURT-HOFFMAN, J. The defendant set up in his answer a former judgment recovered against him for the same demand by the same plaintiff. The whole question is as to the identity of person, and cause of action.

The parties, plaintiff and defendant, have the same names in each suit, and not names of very ordinary occurrence. The complaint in the first action asks for judgment in the sum of $72.50, with interest from the 1st of January, 1857. The complaint in the second action is in this respect the same. mons in each action is, in this particular, also alike.

The sum

The complaint in the present suit states sales of linen shirts, silk cravats, suspenders, &c., between the 23d of May, 1855, and the 25th of December, 1856. The complaint, in the former action, states sales between the 9th of November, 1854, and the 24th of December, 1856, of shirts, hose, suspenders, &c., to the amount of $122.50, and then avers that the defendant remains indebted to the plaintiff in the sum of $72.50, with interest from the 1st January, 1857, on account of said goods and merchandise.

We think that there was enough presented to raise a presumption of identity and support the answer. The plaintiff should have been driven to repel this presumption. (18 N. Y. R., 89.) Judgment reversed, new trial ordered, costs to abide event.

Kinsman v. The New York Mutual Insurance Company.

JOHN KINSMAN, Plaintiff and Respondent, v. THE NEW YORK MUTUAL INSURANCE COMPANY, Defendants and Appellants.

1. Although a plaintiff establishes by his evidence a prima facie cause of action, so that when he rests his case a refusal to order a nonsuit is proper, yet if the evidence on the part of the defendant is very greatly preponderating, and especially where that preponderance arises from facts and circumstances not controverted, the Court will set aside a verdict for the plaintiff as against evidence.

2. The fact that a vessel, after very slight repairs, does actually perform many voyages, and with repairs greatly less than would justify her sale and an abandonment to an insurer, does actually continue in service for many years, being pronounced seaworthy and capable of performing voyages to any part of the world, greatly outweighs the opinion of her master, and surveyors, making an examination by his request, that repairs are necessary, exceeding half her value; and this is especially true when, after such sale and abandonment, the cause of the leakage, ascribed by such surveyors to injury by perils of the sea, is found to be two auger holes bored in her side which may be stopped at a trifling expense.

3 Where freight is insured and the ship is disabled after her service is in part performed, it is the duty of the master to earn freight if he can, by forwarding the cargo by another vessel, and where, in such case, he voluntarily gave up the cargo to its owners, and they sent it on by another vessel, a finding that there was no evidence that he could have earned freight, (in the absence of any proof of the cost of the shipment by such other vessel,) cannot be sustained. The service having been in part performed, it is to be presumed that freight is earned, unless the plaintiff proves that the cost of forwarding exceeded the freight payable by the owner.

4. Where the service has been in part performed, and the owner voluntarily accepts the goods, freight pro rata itineris is earned, and may be demanded. 5. Where a charter-party stipulated on the part of the charterers, that the master should be supplied by them with a sum not exceeding one-third of the freight "free of interest and commission, which is to be in part payment of the freight at the exchange of twelve per cent premium, together with the cost of insurance on such advance," and by further provisions any other advances they thought fit to make on the credit of the freight should, with premium, interest, commission and insurance, be considered in part payment of freight. Advances made under the first stipulation, where the voyage is in part performed, are at the risk of the charterers, voluntarily placed by them at the hazard of the voyage, and are to be deemed freight earned, and not liable to be refunded, though the vessel is afterwards lost. (Before BOSWORTH, Ch. J., and WOODRUFF and Moncrief, J. J.)

Heard, June 17th; decided, December 10th, 1859.

Kinsman v. The New York Mutual Insurance Co.

ACTION to recover for a total loss upon two policies of insurance, one for $4,000 on the ship, and one for $4,000 on the freight of the "Ozark."

In September, 1852, the ship Ozark, of three hundred and ninety-eight tons, being in New York, bound for San Francisco, a charter-party was entered into by her master with Barreda & Brother, as agents for the Peruvian Government, that she should go to Callao from San Francisco, and being tight, strong, and every way fitted for the voyage, should proceed to the Chincha Islands and take in a full cargo of guano, return for her final clearance to Callao, and proceed to Hampton Roads to receive orders from Barreda & Brother, to discharge in any safe port not north of Cape Ann, nor south of Hampton Roads; freight to be paid $15 per ton; "the master to be supplied at Callao with a sum not exceeding one-third of the freight which was to be in part payment of freight, at the exchange of twelve per cent premium, together with the cost of insurance on such advance, and to be free of interest and commission;" * * * "and should the charterers think fit to advance any further sum on the credit of the freight for repairs, stores and disbursements, such sums, with premium, interest, commission and insurance, to be considered in part payment of freight," another third to be paid in cash on arrival at the port of discharge, and the balance to be paid on the delivery of the cargo.

The ship sailed from New York in December, 1852, and arrived at San Francisco in November, 1853.

In November, 1853, the plaintiff insured at the office of the defendants, $4,000 on the vessel, valued at $16,000, and $4,000 on her freight, valued at $9,000, at and from San Francisco to Chincha Islands, and at and from thence to an Atlantic port in the United States, touching at Hampton Roads for orders. Loss, if any, payable to him or order.

In December, 1853, she sailed from San Francisco for Callao, where she arrived in February, 1854, and proceeded from thence in the same month to the Chincha Islands, and there took in a cargo of guano, and returned to Callao in April, 1854.

In pursuance of the stipulation in the charter-party, the charterers (Barreda & Brother) advanced to the Captain upwards of $4,000 in part payment of freight.

Kinsman v. The New York Mutual Insurance Co.

On the 26th April, 1854, she sailed from Callao with her cargo, bound for Hampton Roads: on the 9th of May following she had returned and anchored again in Callao, and the Captain's protest was noted, stating "that, having sprung a leak at sea, he put back for the benefit of all concerned."

On the 10th May a survey was had by two shipmasters and a shipwright, and they reported that they found the ship in a sinking condition, and advised that the cargo be discharged.

On the 5th of June a second survey was had by two shipmasters, (one of whom made the first survey,) and the same shipwright, and they recommended extensive repairs. The same shipwright then estimated the cost of the repairs, which were so recommended, to be $15,130.50.

The Captain stated in his testimony that he had no funds with which to make the repairs; that the owners had no agents in Callao; that he went to several persons to borrow money to make the repairs, and could get none; that he advertised for funds on bottomry, and offered as security the ship's cargo and freight, and could not obtain funds in any way.

The Captain thereupon gave up a portion of the cargo of guano to Barreda & Brother, and they sent it on by the ship Parana.

And the Captain then advertised the ship for sale at auction, and, as he testified, the surveyors and the United States Consul concurred in advising the sale. On the 20th of June she was sold at auction to Captain James Pederson for the sum of $8,100 -producing, after deducting the expenses of sale, the net sum of $7,579.96.

Barreda & Brother then demanded of the Captain the amount of their advances above mentioned, "on the ground that the voyage was not completed;" and the Captain repaid it to them out of the proceeds of the sale of the ship.

On the 26th of July the plaintiff, having been advised of the sale, and claiming that the ship had sustained so great damage on her attempted passage home that she could not be repaired without an expenditure not justified by her value, abandoned both vessel and freight to the underwriters.

The action was tried on the 3d day of June, 1857, before Mr. Justice SLOSSON and a jury, and on the trial the defendants moved for a nonsuit, which was denied, and the defendants excepted.