The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1850-11-13
81, 0OO Any balance in your hands. upon settle
ment of accounts, 20 be subject TO my order.
p H FRENCH"


$4,000. Any balance in your hands. upon settI'
p. II. FRENCH"
4 New YORK, Oct. rs, 1919.
"We accept the within propositions of Mr.
| French; and II is understood that Mr.. A. A. War
is 10 be associated with us, 30 far as the passen
ger part OF the business is concerned All bills o.
ading are TO be signed at our office, and all bills
against rhe ship to pass through the hands OF Shines
d Hufer. SnfEs IL HUFPER,
A. A. WSRNEE."
The next paper in 1.-THE order of time is the mort
gage Of Parker HI French to A. A Warner, dated
Nov. 81. and filed Nov - in the Re giser's Ofsce
of the ship s., Mary. fr the consideration seated ia
the mortgage, as follows - That, whereas, r
IA. French IL Justly indebted unto A. A. Warner in
the sum of S., sol .5 for the balance due hinprpcn
an account: stated this day, for moneys advanced,
and services rendered, in fitting and provisioning
the ship ST Mary fora voyage TO California"
This mortgage, on its faee, is intended as 81 col.
lateral security to Warner for the balance of tire
account stated.
AT subsequent hour Of the same day (22d Of
Nov. }, by an agreement between Z. n French ard
Shines Il Hutisr, French tran sferred TO Shines y
Hufier all his right, title, and interest in the ST..
Mary, and iu her freight and passage money, due.
or 10 become due.
The ship being in the possession OF Shines Il
gers procured by the libelant on board, equipped,
freghted, and ready for sea, on voyage to G Ill
forna, the presen libel was filed and the ship at
ached 10 respond 10 the 0ihftp OF drDer Inc snip
was thereupon bonded, cent to sea by Slmes & Hut
fei, and has never returned TO the jurisdiction Of
this court.
The questions arising 10 this case have been ella
borately argued ; and il is now to be determined
whether the libeant is entitled to a decree, and if
so, for what amount 7
One of the principal objections to a recovery is
found in the fact that there d mortgage of the
St. Mary to the bellant on the 2lst day of No
vember and that the libel sets forth this mortgage
as the foundation of hs-right in the present case
1t is said that the Admiralty has no jurisdiction to
enforce mortgage OF vessel by any decree
which the Admiralty can pass.
In the pres. mt case 1t does not become important
10 pass upon that question at all for II will be rea
Oily seen by an examination OF the whole case, as
il is spread upon the record, that the mortgage of
the 2lst Of November 10 given as collateral security
of account with the bill, and items of that ac-
count particularly stated, and this bill, showing
rails furnished the ship and for her voyage, is the
consideration of the mortgage, is part OF the
libel
For aught appears now, the claim OF the respon-
dent firmly on the supplies contained in the
bill, without the mortgage, as with it. The ques-
lion whether mortgage can be enforced in Ada-
rally, only arise ina case where the consdera-
ton of the mortgage was not for materials furnish
ed the ship, for the voyage bat for some colate-
raj Indebtedness. But in a case like the present,
where il appears from the allegations and the evil
dence that the money due-the debt secured by
the mortgage, was in itself maritime lien-then
the mortgage cannot diminish or in any way
change the already fixed interest, or take away the
right of the libellant.
II doubts lave been entertained, as indeed they
have been, whether mortgage can be enforced
in admiralty, this case may not be embarrassed by
these doubts. The case now to be determined,
stands different footing from the naked case 3,
where these doubts have arisen leave this ques-
ton whsre found il. and proceed to say,that prior
TO the mortgage, Warner had an interest in the
ST. Mary, which the admiralty will recognise.
And II we look through the written evidence, we
may. and think we must be satisfied. that Shines
" HuHer knew tina. Warner had performed the
services, that he had supplied the materials For the
voy sge-that he had, through bis agency, under
the appointment Of the owner, French, procured the
cargo, end obtained the passengers for the ship
These services were maritime, and the remedy Is
on the chip.
Another question has been raised by the respon-
dents, that the lbellant should not have attached
the vessel at the moment she was ready for sea,
tor that was tantamount 10 breaking up the voyage
There is a satisfactory answer TO this objection.
Had Warner permitted the ST. Mary TO have left
this port on foreign voyage, or such voyage as
this was then his lien on the ship might have
been considered as waived, and the remedy might
have been lost. This justihes the filing OF the
libel, and constitutes an apology for the attachment
| Of the ship.
The view Of the case thus taken, entities the
| libellant to a decree.
| But the amount is still subject of inquiry and
which this amount is to be SCREAMED. II any o
| the items should be found Objectionable, yet, il
| deduCllr balance, the nDellint Will nave Al nj
option the application Of credits TO e1tinguish thos
objectionable items FIRST unless, at the time OF pay
| meni, there was a specific Application of the pay
| ment; this well settled principle OF law will ds
pose of all The difficulties IN the case, except tn,
| ihree items standing on the bill commissions, il
| these words -
| Nov. 9th, Paid J. A. Watson, commissions
xov '0 iaps PaEs A watson commission, for
1 passepgtrs,. ~
NOV. 2ist My commissions as per agreement, l2'
| Amount. ..........,......Sl3 30
The principal difficulty in this case arises uFoI
| the disposition of this amount in the bill. IL 4
| said that commissions" cannot become lien
giving jurisdiction to the admiralty and this oh
| lrction has b zen enforced by much ability,
The remaining objection, is that commission
cannot be allowed on ihi libel, and IL this objection
pItvails, the retult will be, that the si,3O5 mus
be deducted.
require me to say, that upon abstract proposition
commissions may or may not fall within the adm
| rally jurisdiction.
But the facts here shown, re lure that we exam
inc the merits and the real nature OF this item In ad
miraliy proceedings, IL is Of very lite moment wha
form cfexpreasion is used in any of its proceeding:
We regard only the substance and not the form
!, The broad and high principles OF equity shoul
guide Us.
IN following this light as our guide, what was
and what e, the real and substantial basis OF thi
charged Lay aside now, the form OF exprcssio
used In the bill, "To my commissions" aud ia
quire, we have in fact done on this trial, an
see what was done by the libellant for the =
May, TO entitle him 10 this 81 ,305.
Tits is easily solved by review Of the case, a
, II stands before US.
The 81. Mary, being owned by French, h
wished 10 get her up for California as passenge
, ship, the whole profits Of the voyage 10 gro'
out az full complement Of passengers
The cntre profits Of the voyage TO depend on IN
, number to be obtained, and the passage mOae
here takes the place Of freight money 10 freight
inc ship. In a city like this, with the eGciiemen
and the rivalry which then prevailed, wsrk, labor
sEii, vhterprise, were pecessarv 70 I'LL this shi
with passengers The libellani performed thes
services without them there would have been NJ
passengers-no voyage. These services, then
were tor the ehp-they were essential 90 the voy
ege-they actually made up the voyage; and Sine
" llufier becoming the subsequent owners OF thu
ship, with full knowledge Of these services, an'
the agency under which these services were rem
dered, hey'avail themselves Of all theibenes. The
have taken this ship, with its live freight, togethe