Freight lightered away from a grounded vessel, in order to save the rest of the cargo, is not liable to contribute to the expense incurred in doing so. The sum for which a vessel is sold on execution must be accepted as its true value in a suit for contribution on a claim for general average, unless the claimant had caused it to be sold for less than its value. Error to Superior Court of Detroit. Submitted January 26. Decided April 13. ASSUMPSIT for a claim of contribution under the doctrine. of general average. The action was brought by Coyne, as assignee of the owner of the vessel. Backus had a lot of lumber on board, part of which had been thrown off to keep the vessel from foundering. A part of the remainder was afterward lightered off in order to save it, and various expenses were incurred for these purposes, and for towage, repairs and wages, and also for defending against a libel in the Admiralty for a portion of these same claims, on which judgment was recovered, and the vessel sold to satisfy them. Plaintiff recovered below, and defendants bring error. Reversed. Barbour & Rexford and Hoyt Post for plaintiff in error. There is no liability for contribution in general average until the claim is paid: Douglas v. Moody 9 Mass. 548; nor until the surety has paid more than his share: De Golyer on Guaranties, 341; the amount at which a vessel should contribute after being sold on execution, is the amount of the sale: Bell v. Smith, 2 Johns. 98. George H. Prentiss for defendant in error. MARSTON, C. J. Coyne as assignee brought assumpsit for contribution upon a general average claim. It appeared on the trial that immediately on the arrival of the vessel in Detroit, she was libelled in the United States court for the recovery of certain claims, and amongst them claims for towing the vessel from Port Huron, where she was aground, to Detroit, and the wages of the captain and crew. It also appeared that the vessel was sold under a decree of said court, that eighty per cent. of such claims were paid out of the proceeds, except wages which were paid in full, and that a portion of the proceeds were used to pay costs and proctor's fees in said suits, and that but for the payment of these the other claims might have been paid in full, and the court permitted the jury to take into consideration the payment of such costs and fees. Just what part this matter of costs and fees played in the case is not clearly apparent. There can be no doubt but that a surety, or one standing in such a position, will be justified in employing counsel and incurring costs and expenses, to which his co-sureties must afterwards contribute, in defending against illegal demands. Nor will the right of the surety to recover in such cases be made dependent upon his success in the cases, as that would compel him to act at his peril. It is sufficient if he acted as a prudent man would, in the light of facts and circumstances, showing a probability of success in whole or in part sufficient to justify the expense likely to be incurred. The foundation for the right of contribution in such cases is the fact that the expense was incurred in defending for the common. benefit. This will not, therefore, permit him to incur expense in uselessly resisting a legal demand, or in creating needless or unnecessary costs and expenses. Knight v. Hughes 3 C. & P. 467; Henry v. Goldney 15 M. & W. 494; Kemp v. Finden 12 M. & W. 421; Davis v. Emerson 17 Me. 64. I am also of opinion that the mere fact of liability, and even of a judgment thereon, is not sufficient to entitle the surety to enforce contribution. There must be a payment or such assumption of the demand, as imposes upon the claimant more than his share, and a corresponding release of those against whom he claims. The surety is not the agent of the common creditor to enforce the demand, as the latter would not be bound by his act, and until payment he may look to any or all the others, and they should not thus be put to needless litigation and the danger of having to respond to the principal, notwithstanding the payment by the surety. The record in this case does not negative the fact that evi dence was given on the trial which, under the above views, would have and did justify the court in the rulings made. No error, therefore, is apparent of record in this part of the case. The lumber lightered off the vessel while aground, was not liable to contribute to the expenses afterwards incurred in saving the vessel and balance of the cargo. The expense afterwards incurred was not for the protection of this lumber, nor necessary for such purpose. It had its own risks and perils to run while being forwarded to its destination. Hugg v. Baltimore etc. Co. 35 Md. 414; Job v. Langton 6 El. & Bl. 779. It appeared that the vessel was sold under the decree of the United States court in the cases referred to for upwards of $1600, while evidence was introduced tending to show her value to have been $2000, and the jury was permitted to find either value as the basis of their verdict. This we are of opinion was erroneous. The vessel was actually sold and realized to the owner in the payment of the claims against her, upwards of $1600. In any action thereafter arising between such owner or his assignee and others interested in such claims for contribution, the actual amount for which the vessel was sold must be accepted as the true value. If the owner, in defending without good cause claims apparently legal, or otherwise, caused a sale and sacrifice of the vessel for less than her value, there would be good reason for permitting the actual value to be shown. Where, however, a sale has been made, even at a price above what some might consider the actual value, all interested therein should have the full benefit and advantage thereof. We are of opinion, therefore, that for these reasons the judgment should be reversed with costs, and a new trial ordered. The other Justices concurred. 45 588 78 340 FRANK S. DYER V. WILLIAM S. ROSENTHAL. Trover for goods levied on- -Value-Damages for breaking up business- In trover for the conversion of goods taken on execution, plaintiff cannot The transfer of cheques or of receipted bills has no tendency to prove an indebtedness or loan, but rather a payment; they prove nothing of themselves but may be used as memoranda in connection with the testimony of the parties. Receipted bills are no evidence of value. One who has merely been into a store without inspecting the goods there is not competent to express an opinion as to their value on mere inspection of the inventory and invoices. In trover for goods taken on execution defendant may show what they brought at public auction, as bearing on their value, even though the sale was made at a different place from that of the alleged conversion, if there is no reason for supposing that values were essentially different at the two places. The appraisal of goods taken on an attachment is inadmissible as evidence of their value if offered by the officer who levied the attachment and appointed the appraisers in a suit against him for their conversion. A transfer of property in payment of a debt is fraudulent and void if the property was transferred at a price greatly below its real value, with intent to defraud other creditors Error to Alpena. Submitted Jan. 26. TROVER. Defendant brings error. Decided April 13. Reversed. Kelley & Clayberg for plaintiff in error. In trover for articles taken under levy, a person not actually familiar with the articles cannot testify to their value: Greeley v. Stilson 27 Mich. 153; Gilbert v. Kennedy 22 Mich. 117; Newlan v. Dunham 60 Ill. 233; but the price they brought at auction would be evidence: Jennings v. Prentice 39 Mich. 121; Roberts v. Dunn 71 Ill. 46; Campbell v. Woodworth 20 N. Y. 499; Gill v. McNamee 42 N. Y. 44; so would be the appraisal: Walrath v. Campbell 28 Mich. 111; Hunt v. Strew 33 Mich. 85; Sisson v. C. & T. R. R. 14 Mich. 489; Cliquot's Champagne 3 Wal. 114; Fennerstein's Champagne 3 Wal. 145; a transfer of goods in payment of an honest debt is void as a fraud on creditors if intended to be: Pierce v. Rehfuss 35 Mich. 53; Allen v. Kinyon 41 Mich. 281; Beurmann v. Van Buren 44 Mich. 496; Boies v Henney 32 Ill. 130; Hanford v. Obrecht 49 Ill. 146; Atwood v. Imp son 20 N. J. Eq. 150; Chapel v. Clapp 29 Ia. 191; Tatum v. Hunter 14 Ala. 557; Pulliam v. Newberry 41 Ala. 168. J. D. Holmes for defendant in error. The transfer of goods in payment of an honest debt is valid even if intended to cut off the redress of other creditors: Hill v. Bowman 35 Mich. 191; Jordon v. White 35 Mich. 253. COOLEY, J. Rosenthal sued Dyer for the conversion of a stock of goods which were taken from the possession of plaintiff at Sheboygan. Dyer was at the time sheriff of Alpena county, and justified under an attachment against Samuel Rosenthal who, he claimed, was the real owner of the goods. and had transferred the possession to plaintiff with intent to defraud his creditors. Plaintiff recovered judgment in the circuit court, and the case comes up for review upon exceptions. I. Plaintiff, after proving the seizure of the goods, was permitted against objection to give to the jury an estimate of the damage he had suffered by the breaking up of his busiThis evidence could only have been admissible after he had shown that his business was actually broken up. This he had not shown: it was consistent with all that appeared that he may have gone on without serious interruption. ness. II. Under a claim that it would tend to show an indebtedness from Samuel Rosenthal to himself which may have constituted a consideration for the transfer of the goods to him, plaintiff was permitted to show that Samuel received from him certain checks a year before. But these had no tendency to show an indebtedness. The more legitimate inference |