The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1851-04-08


he became Of age, he was not bound by it. Also
held that the notes given October %, lSl9 not be-
ing approved or affirmed by him since he became of
age were not binding upon him, even if O'Ilearn
had authority to give notes in the name of the firm
after its dissolution. But held that if Dunkin was
Of age the 18th Of October, he was not bound by
notes then executed by O'IIearn in the name. of
the partnership, solely on his authority as member
Of the former copartnership although settle part
nership debts Held, that kimball and O'llearn
being alone liable on the charter contract, their
own notes given in the name OF the new firm, COM
posed only Of themselves did not discharge the prior
debt merge it in the notes. unless there be express
proof that the notes accepted in satisfaction
of the old debt. Held that the charter contract
was OF maritime character, and as such, suable
in admiralty; and if the notes given superseded
the right Of action for the time, on the original
agreement Of the libellant by surrendering, those
notes became re-intcrgrated to their right OF action
on the original contract and the surrender need not
be made before suit brought but may be in court
on trial. Held that the adjustment of claims on
the 25th Of October must be regarded defnitiye as
to the amount due the bellants, and they are enti-
tied to decree against kimball and O'Iiearn for
81 $50, with interest from that date and costs. Or
dered that the libel as to Dunkins be dismissed,
without costs. Costs would be awarded against
him had he been guilty of any deception or act mis-
leading the libeants to deal with him rs an adult.
Decree accordingly.
Joseph UdaH Is. the steamship Ohio, George Lar.
and oihers, claimams.-The libel seeks to recover
$2,l59 IS being part of an account of $2,913 %,
for timber sold by the libeant to Bishop & Simon
son, and which amount, he alleges, was employed
and used in the construction Of ship Ohio. The
lbellant proved the trial, he had furnished
Bishop s Smonson the timber charged for, of a
size and quality adapted to building large vessels
and the trunnels, portion OF It only adapted to
ships Of extraordinary size, like the Ohio, and that
the stanchions were obtained for the Ohio alone
and that Of the timber SO supplied, an amount equal
in value to So l59 IS had been used in building the
Ohio. Il was also proved that Bishop & Simonson
are insovent-that the sum aboye-clamed is due
the libelants, and that the ship was attached, on
this demand, before she left this port the waters
of the State of New York. The hbellants gave
evidence to prove the timber was ordered by Bishop
s. Simonson, after they had contracted te build
the Ohio, and was intended for her use. The claim
ants proved that Bishop & Simonson were ship
builders, in this city, and had two large yards, in
which they built and repaired vessels OF all sizes;
that they bought timber and kept it on hand. for
the purposes of their business, andhad been, in that
way, customers Of the libcllant, and his father be-
fore him, for many years, ordering from him timber
generally, and then applying it to such uses as they
chose. That no timber was ordered from him
specifically for the Ohio, Except as he was told
they wanted Istanchions for herr but was ordered
Of sizes suitable for her size, and with intent to use
was made by ibellants against the ship-that
money was paid him from time to time, on
account, as he called for it, and the notes
of Bishop & Simonson were given him, to
the amount Of his demand, according to the
course Of dealings between them for years past.
1t was also proved, that, during the time the Ohio
was building, Bishop and Smonson had two other
steamers building in their other yard-one the
State Of Maine, intended for the Sound or sea SER
vice, and the other the cd Jacket to to Shrews
bury, and that their habit was to take timber indis-
criminatcly from either yard for use in building or
repairing vessels under their charge 1t was proved
that Bishop and Smonson contracted with the Ii
beants to build the Ohio for $4,000, to be paid
in monthly instruments, according to the value Of
the materials and labor put upon her. and that all
the payments were made according to the contract.
The ship was to go into the exclusive possession Of
the claimants when she was launched, and in the
contract the claimants were denominated owners of
her. No notice was given the claimants OF the
libellants demand, until the ship ready for
She was launched in August, and this libel was filed
September 20, and the attachment was served about
the same time. 1t was held by the court that the
lien or privilege claimed by the libellant being
under State statute this court will be governed in
enforcing the lien, by the construction given the
act by the State courts although il conflict with
previous Interpretation Of the law in this court
other Admiralty courts Held that one who
tracts TO build vessel and to furnish the materials
and labor for fixed price, is not within the mean
ing Of the State statute. owner master, agent Of
the owner, competent to give other laborers ma
teral men lien upon the vessel, for sur~',,ns o.
services ordered by him and applied 70 tie use Of
the ship. ~ - y
Held, that subordinates laborers and material men
employed by such builder, cannot under the statute,
clam lein against the. vessel without notice 10
the owner previous to furnishing the supplies, or
labor, or at least previous TO payment made there
for by the owner to the builder. Held, that on a
safe Of materials to ship builder to be used in his
business generally and the after application of those
materials to different vessels and purposes, the
yendcr cannot seek, in an admiralty court an ap-
portionnent Of the value thereof applied to par
ticular vessel by proceeding az rom against the
vessel II having been decided in this Court, by
Judge Judson, on similar claim against this ship,
that credit was given exclusively to the builders,
and that the ycnder had no right Of resort to the
ship, i not intended in any way to rcpudiae the
loci hlt ind mt nf he
Court In tins case i more particularly placed upon
the meaning and effect Of the State statute and
extent OF privilege against vessels under these tact
lcins.-Dccrce dsmissing the libel.
George b. English rs. Tho Oceda Steam Noriga-
ton Company The libellant imported several
cases Of kid gloves and fine silks, from IIavrc to
New York., in the steamship Hermann, owned by
the respondents. The goods, when delivered here,
were found very hot and crisped, baked, spotted
and rotten, and damaged, according to appraisc-
inent, to the amount Of $50 O3l00. To recover
which, this action is brought against the respon-
dents, owners Of the ship The defendants answer,
that the eases We're welt and carefully slowed, and
that no notice given to the master Of the ship.
agents Of the defendants, that the goods required
any peculiar care or stowagc. 1t was proved that
the ship encountered very heavy and tempcstuous
weather, and that the dash boards in the boilers
gave way from the violent pitching Of the ship, and
ryets were wrenehed out, causing the escape Of
unusual amount Of steam into the body Of the ship
ard that she also shipped heavy seas during the
storm. They also proved that the goods were Of n
delicate character very susceptible to injury from
external dampDcss on voyage, and subject to |
stains and spotting if packed when damp, giving |
them, externally, an appearance like that exhibit
cd in these goods. The bill Of ladng, put in evil
dcnce, admitted the Of merchandise were re-
eciycd on board in good order aud condition, and |
engaged to deliver them at New ork in like good
order and condition Che acts Of Cod, enemies, |
pirates restraints Of princes rulers. fires at sea
and on shore, accidents from machinery, boilers,
steam, any other accidents ofthe seas, rivers and
l..Nn
ee,tsd viii nsrnarandu, ,re,h, anJ ~ oon,en,s
and value unknown.) And the defendants insisted,
If the damage received the voyage, 1t
from some within these exceptions; and that
ii was incumbent the libeants to prove the goods
were dry and in good order when packed andshipped
The bellant proved by persons conyersant with the
goods and trade, that the injury caused by ex
cesSye heat, and that the external packages and
interior paper cases enclosing the goods were in
perfect order, showing dampncss or stains, and
that the forward part Of the ship, where goods