Morning herald. [volume] (New York [N.Y.]) 1837-1840, 1838-06-21

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Replevis CGss.-John King w. John SemIcr-This
action was brought TO recover from ths hands OF
city marshal six pieces Of rag caSpetna, distrained
upon for an alleged arrears OF rent
The plaintiff proved by Francis Thomas, mar
shal that six pieces of rag carpeng had been taken
from the premises of John Wolf, No. l63 Stanton
street. by virtue of landlords warrant On distress
for one months rent alleged to have been payable on
by Thomas Keller that he (Keler occupied part Of
the house the time of the Distress and that Plalnh
was the owner Of the goods distralned upon. The
plaintiff and Wolf were both weavers plantln sent
quantity of rags 10 the premises OF Wel 10 DC ma.
nufactured into carpeting and the capetng as soon
as it was finished was taken away by the omcer ana
remained away seven eight days, beng partially
damaged thereby in carting II from one place 20 lne
other 1t was also proved that the tenant Won had
sufficient property on the premises 10 pay the rent
without having recourse 10 tne goods ne was manu-
featuring for others.
The defendant introduced in evidence the landlords
warrant, together with the articles OF agreement SUI
pulating that the monthly rent, $26 81, should be
paid in advance Also another agreement by which
Harris underet part Of the premises to Wolf for the
same term and at the same rent payable TO the de-
fendant in advance. This agreement contained re-
ceptfor the first months rent in advance.
The plaintiffs counsel introduced a receipt for the
rent due in the month of June and also the following
receipt, for the month of May
Received, New York, May l, 1887, from Mr.. Wolf,
the sum of $20 81, for month"; house rent,lwhch
1885,"
The defendants counsel contended that Keller
having been authorised to sell the property on COM
mission the goods were thereby rendered liable to
distress, the rent being due.
In answer to this, the plaintiffs counsel argued
that the goods were not liable, even admitting the
rent to be due, which he denied, nasmuch as ne
had shown receipt for the month OF May; that re-
ceipt being held back security for the last months
rent that 1t had been ambiguously wordcd for that
purpose, and was fraud put upon him IN order to de-
ceivc him. He also contended THAT Keller was IN the
position ola keeper of warehouse having the goods
IN his possession for sale on commission, and that
they were liable distress in consequence. In
another point of view also they were not LIABLE in.
asmuch as they had been left there to be manufac-
tured.
Judge Ingraham charged that the first question for
the Jury to determine was whether the rent had been
paid or not; and the next was whether the goods
liable to distress. If the jury should consider
Keller from the testimony before them, acting in
the capacity of warehouse keeper the goods were
liable for the rentthe defendant had right to dis
train upon all goods found upon the premises except
such were by law exempt; and that goods stored,
or left for sale upon commission, or TO be manufac-
tured for another, came within the exceptions Of the
law.
The Jury found verdict for the plaintiff Of IS and
costs.
For the plaintiff, H. H. Burlock; for the defen liant
J. W. Merritt
CouRr OF GENERAL SESSIONS, Wednesday Jane
2e-Case Of Smith q. Iopn contixued-Upen the
openipg of the Court the Recorder stated to the coun
sell in answer to the arguments offered yesterday,
that il was the opinion of the Court that the evidence
of the transaction between the defendants and the
compliments previous to the time of taking ware
house receipt for the Coffee is such make il
cessary thar the should 60 the jury for them to
determine whether the defendants were storckeepers
at the time Of giving such receipt or not.
Moses Isaacs was then called by the prosecution,
10 prove the facts and circumstances under which the
r0Aoc aft tth m ~,
Counsel for DEFENDANTS excepted to the admission
of this testimony. Overruled by the Court.
Witness is book. keeper and confidential clerk
Of Mr. Gosler; has been in his employ since 1892;
Mr. Parker has been in the habit of obtaining credit
of Mr. Gosler for cargees Of coffee from Rio Janero
the cargoes of coffee in question purchased
upon the same conditions as those Of other vessels;
the bills of credit were debited to Mr. Parker OF Bos
ton, and paid by Wilson & Co.; the coffee by the Ad-
miral and Lysia was consigned TO Thos. Wilson e.
Co. Proved the bills Of lading of the coffee.
The prosecution produced the afidavits Of Smith
e. Town at the eustom Hosse-ths usual oaths of
eRtry.
Witness proceeded When these bills of lading ar
rived the defendant Smith called the Office Of wit
ness and received the bills OF lading; cannot say
whether he received them personally or whether they
at that time the firm of Smith & Town failed about
the first of April; Mr.. Gosler gave Mr.. Smith permits
sion to sell the damaged coffee after the failure Of
the firm, witness called upon Smith ~ Town to in
question; both present; they replied that they
had delivered all that was in store; witness asked
what had become Of the balances they declined giving
witness any particulars, stating that they were ad-
vised so 10. do; witness demonstrated with them;
they stated that their books were net made up; that
they wished TO sec Mr. Gcscr on the subject, and
that they would satisfy him that all they had done
in the matter was for his benefit; they render
ed any account Of the coffee to Mr.. Goser; Smith u
Town are indebted to the house Of Thss Wilson e.
Co. Independently Of the cargoes Of the Admiral and
Lysia, on account current to the amount Of
Counsel for the defendants objected TO the testmo.
ny; he said il was intended to prejudice the minds Of
the jury.
Counsel for prosecution said he had asked the
question in order 10 show the quo amino Of the de-
PENDANTS.
The court remarked that the question could only
be proper in order 10 show the fraudulent intent and
that il was therefore an unnecessary and improper
question. Ii was therefore rued out.
Witness ass proved that for some time prior to the
failure Of Smith a. Town, that firm were in the habit
Of obtaining bills of exchange from Mr.. Goser, for
the purpose Of selling in the market in order to raise
the means of taking up other bills Of exchange. The
last transaction Of this kind was a bill Of exchange
for $4,000 sterling, which bill has not yet been paid
by them.
After three hours consumed in cxaming cross ex-
aminlng perplexng and interruptng the witness !;
arguing pleading, replying and rcterting; besides
between the counsel concerned the court adjourned,
without progressing materially in the case.