The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1849-03-25

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Law Intelligence.
DECISION IN THE CASE OF THE BAL, rARANro IN THE
~. 8. DsrRcr C0URr IN BosrOH.-Bruce ct al CONDOS
eng the California Shawmut Mssng and Trading .assoc
oon Hbsilans, Us. Thos II Swazey ct respondents
Association, alleging themselves to be the ow ners
Of the brig Tsrsn,o, and her appurteusnce aud Of
Inc sea stores on board and prayed the Court to de-
cree the title TO the ship and to b. in them
put them in possession thereof and to compel the
rondsnts to make over to them the bill Of sale and
custom house documents There were three sets Of
claimants. Thomas II Swszsy g. Co, agents of the
holders Of the bill OF sale and register Of
the vessel, claimed . lien upon them aud the vessel
for the amount Of their against the Assocs.
on. John Merrill, master Of the vessel, clai med
len for securities against liabilities no might b. under
master to persons who had furnished labor or ma.
esials for the vessel. Messrs Thsyor Merrill, who
bad furnished provisions and ship chsndsry large
tatute OF Massachusetts, 1873 They had also before
he fling Of the libel attached the vessel in suit at
common law IN the state Court against Messrs Sya.
court to defeat the attachment.
Judge SrRAaUE in delivering his opinion, said in
ubetance, that he was salisfed, upon the evidence,
hat the following the state of the facts: -
The Messrs Swazsy were the eriginstors Of this
srprise for the purpose of being made agents, and
Tor the commissions aud other PROFITS Of dol ux the
business. They advertised for persons to join tho
company prepared such . constitution thsy chose
which gave them tho once Of agent and treasurer,
nxed the capital stock at 1000 in Rfey shares
d $500 each They gave .tropg assurances to in
that this ample TO buy, ft out aud provision
he vessel for two years These assurances were not
(uGled. and made without sufRoisnt fou ndatiou
On the faith Of them wever the requisite of
versions joined tho company, meeting was called and
he contribution adopted As prepared by tho Msssrs
vasey, this constitution gave NO security to the
ANY for the fidelity Of the agents, but amendment
made, requiring OF them bend in $40 900 for the
faithful OF their duties bond was given
With proper suIeties. The wszeys then suuou seed
10 the company that 1t would require geo
ell expenses, and gave strong assurances that this
would be sufficient, and leave balance oontingsA
pies, and said that they had then obtained oil their
bills Of any osnsequen noe, and knew what the expenses
WOuld be. On the faith OF these assurances, the
psny enlarged their numb.r by creating ten new
harss which subscribed for, and mostly paid in.
bill Of sse Of the vessel was permitted, by vote Of
he company TO stand in the names Of M SwAzsy
Ind Capt Merrill. On this point the evidence Is
psts end nnoon radiStsd, that rne bill of sale
left merely a. OF nvenonoe, and reliance
,pcn the benz which had gwen, and without any
10 its being security the master At che
ms OF this vote there WAS no idea that the company
you'd or could debt the Msssrs Svazsy Indeed
they had NO authority to spend snything beyond the
hmount OF the capital stock Between them selves and
About tho mtddis OF February, the Swazeys sum
nopsd the memb the CITY, and on the 2tst wita
HE 2<th. The vessel now loaded the matches
aown, the boats stowed and everything ready for
On the after OF the 22d the Swszey for the fest
lime. announced to the company that 1t was In debt
10 them nearly S. goo | have no doubt, from the
evidence. that they knew che state Of the accounts
nose before this and delayed The snnou noems Mt in
tsptiopally until the company placed under the
dsadvsntsge Of being oil assemble most OF them at
distance from their hemes. and In tue expectation
A.. Atafnl IN Tha nnn
Aissasished. the on inquiring into the pur
pbssse made by tie Swaxeys; ami looking for tho
bond it Wa ascertained that SIR. T. IL. Swa3ey had
nbtaiued Il In ssmc amer to the company,
Hpd destroyed It, This act his counsel very properly,
hss not attempted to defend On inquiry, 1t appear
ed that the Swazeys had charged the company with
1hs face the bill Of goods purchased by them Of
Tbsyer Merrill, when, in tact ss TO part Of the bill,
a dscount Of three per cent made, and 500 WAS
aseouuted from price Of the vessel, which
commu nicaied to the company an satisfied that
there no contract betweeu the Swsseys and the
aseociatiop, by which they have any lien upon the
vessel or her stores. As to right In general
equity which an agent has to retain property
vspcss IL IL enough to ray that the conduct Of the
Svassys not been such ~ to entitle them to on
force sny such equities TINS court agar tss as
the decree must for the hbesuts As TO the claim
of Capt Merrill he bss lien BY contract nor by ths
general maritime law snd there evidence that he
kss in fact any liabilities. If he has done SO,
II been without any authority from the company
The rsspondsnts, Thaysfs Merrill, claim LEN for
statute But argued at the bar, this
nen. Il exists 10 Independent Of title or possession
dscrsss pray "a for They ask to have their lien
forced bot the objection offered Is satisfactory, that
thsy have not placed Themselves 10 position 70 nave
NO notice given to the world to show cause Against
their o,1im the libel 70 whicn they respond 10
frevss tstsifu t would be Unprecedented In peti.
tory or pos,essory suit to enforce lien party who
comes In merely - respondent II the libel itself
xsr. Tor tue enforcement OF Iisn the stu alton Of
a. An mtuh a II
Tbayer Merrill have attached the vessel at common
law In suit against the Messs. ~szsy, and claim
rrooesesd IN NJ sud their attachment Is valid only
In the property attached 10 tue property OF the
Ssss attached their house or lands and If this
| attachment Is valid, the ship and stores could
b. scbed by any other creditor OF the Msssrs Sws
n.y for aay debt trsspass wnatevor. One of the
ht~Isnts to test the idity Of this attach
u.pt Being satisfied that toe chips and stores we're
NO, the property of the Swszys woen tas attachment
w.. mace ssd that Msars. fosysr Merrill, 1t the
fns the d. contracted, had full kuowsdgs that
abe propsrty hbelied ~s purchased wtn tue moaey OF
srut thsr sttaohw~pt 10 obstacle to the decree
pssyed for portion Of the stores have not bscn paid
sor Tbese Of course, toe ubslsnts cannot retain,
without being boana for their vsae though origin ally
psvehssed without authority The decree, ~ to tbs
stcrss must therefore Dc yer .ns n%o.as "hod ma
called ~ council 20 the coumissons charged BY the
swaps Thsy TO have 90 missions for services
r.eosred but do not think they hays rendered vsiu
h~ 80, v,css 20 the company, and their conduct has
f.p .uch that they not emitted to compensation.
ss therefore at the hbelsnts ~ entitled to the
shole amount they have paid TO tbs S~.leys, exeeps
aetpai esp.n,ee the decree will be- that the title to
"a. y-ss. hsr taetl- appsrs and stores TO be
p~resa With ressopsee distipctnessD la The libel
ssp that the possession Of tins SAN be given TO them
.pd or d-avsry up VI the bill Of sale register aut
other p.esesry documents, With full eosts.-B'ston
s6fiss Nsfek II
N,ws FRon CKSrRsL AMERICA BY the ARRIVAL
at The Pon. says the Bstoa Cov,,er OF yesterday,
4t The brig SeptemDer, Capt. Nckerson, iron
Haudurar We have received the following ntelll.
veuc. from Cenifsi America. Gait Nickerson
l,tt Omos he 2Ist 81 February. aud Truxtllo the