The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-07-16
= II Il L a CouR rs
United States D,s,r1c, Court.


=, Balance .'...:.............. ......... Sl63 90
Wages as mate of the same brig, at $50
per month. from April 4, l9iS, to Nov.
IA, 1919, 10 months and 10 days ...... $50 90
wages as mate Of the same brig, from May
~, 100, to January ., 1851, months,
at $50. .......,............... 2i0 90
Wages mate of same brig. from Jan. %
1901, to April y, 1851, at $50 per month,
2months and IL days. .'''''. 81 ~
Total 1903 81
Deduct the credit 90 rs
This is the amount of the claim. S3i3 10
and interest to be added, Means s Clark, of Bos-
ton, owners Of the brig Richmond come in and
defend the claim, and they admit in their answer
that the libellaLt hath demanded of them payment
of this claim, alleged in the libel. and that pay
ment was refused; but the respondents deny all
knowledge Of the services charged against their brig
and they alegc that if services were performed as
master or mate, that the same were rendered on
the personal credit of William Mckenzie the for
meI owner OF the brig, and father Of the lbellant
and that no credit whatever was, by the libellant
ever given TO the brig, and that no services were
by the hbellant, performed for the brig or on her
account 1t IS further alleged in the answer that
WIN Mchenzie, OF the State of Maine, while build
ing this brig, received Announcements in money to
enable him to build said brig. and said advance
ments were made abthe request, and with the know
ledge etthis lbelaut TO his father, William Mcken
Ze; ara that on account of such advansements to
William Mckenzie, he did, in the month of Septem-
Der, 1917, execute and deliver to Means s. Clark a
sl OF sale Of half Of the said brig and afterwards.
TO wit, on the 18th of May, 1850. said William
Mckenzie executed and delivered to Means & Clark
bill OF sale OF the other half Of said brig all of
which was then well known to this libelant The
proof Ia this case, to sustain tho libel comes from
the father of the libeant William Mckenzie, whose
deposition has been read in evidence and this de-
position, uncontrsdicied and unexplained goes far
to sustain the allegations in the libel and indeed
supports 1t at all points. But the Court cannot over
look the circumstances and proofs which coun-
teraet the influence of that testimony. These cir
cumstances and proofs satisfy the Court that
the demand set up in the libel is an unjust demand
On its face IL is stale demand; mt any rate most
Of it is Of that character Masters and mates of
vessels DO not often permit their wages to run on
voyage after voyage, without asserting their right
to wages, and In this the freight earned by the
brig stands unaccounted for The legal presump-
lion Is that the wages have been paid by the freight
money earned on the several voyages performed by
the brig. 1t is an equitable presumption ALSO that
the wages are not due. The libelant was agent of
the father who procured the advancements to be
made to him by Means & Clark to build big, and
there has been satisfactory proof in the case that
the earnings of the brig were to be paid over to
Means 4 Clark, in the reduction of these advance
ments This has not been done. The libellant was
privy to that arrangement, and being master or
mate Of the brig, and constantly engaged in all mat
tersin regard 70 the brig with his father it is fair to
presume that tbislibesnt performing his services
for the father to carry out the stpulations and
the debt Means Clark Fl 9 7Gs idea 'G is s ssans.
y confirmed co by the fact ,.,t that when each
Means & Clark, that ne mention was made by this
hbellant that he held q claim on the vessel 1t is
general principle. founded in law and equity re-
eognize6 by all courts, that when person stands
0y and witnesses the transfer of property from
man to another, and wthholds all information of a
claim Of his own, he Losses his right to the property
thus transferred He is bound, in such case, to
give notice Of his claim, that the purchaser may
not be deceived by his silence In the present case
the lbeant the agent to procure the respondents
to advance their money to his father on the credit
Of the brig-he undertakes, with his father, to aid
in paying off this money, and then he stand by and
sees the father transfer the brig to Means Clark
without intimating any claim in his own BEHALF and
they take the brig as security for their debt 1t is
too late Tor the lbellant to set up prior right to
that which he has himself aided. and as may be
truly said, has been the principal instrument in
placing on the brig, while he has permitted his own
claim 10 lay dormant until the vessel passes into the
hands OF an innocent purchaser without notice.
The father and son have so demeaned themselves, in
regard to the claimants rights, that it would be a
fraud now to seek to divest the claimants of their
title to the vessel The libel must be dismissed,
with costs.
THE WILLIAMSBURG FERRY CASE
The Unaamst'ug Ferry Company rs. The Steamboat
Cheiseo-LJei for CoSsion-The bellants are an incor
poraed company under act of the General Assembly
OF the state Of New York and their ply
between Williamsburg and Peck slip, New York; they
the 2Oh June, fs5l. made fast bulkhead on
the Williamsburg side Of the East river near the
burg undergoing and needful repairs that d
recty above the 0neoa she protected by the long
south pier which guards the Jackson street frryboa
they enter their dock the william burg side of the
river on the outer side of the 0neoa lay float stage
made fast to the oneot upon which the men stand
ing while the repairs being made the pier immedi
ately above the opcoa extends than hundred
feet into the East river at right angles with the bulk
head or wharf 10 which the ODeota made fast and
at the time Of the collision plank the pier to
the stern Of the oneota upon which the workmcn passed
and 70 passed while the repairs were going There
controversy about the facts thus The
Of the respondents admits that they the
steamboat Chelsea and by way Of defence the al
loges that at the Of the supposed collision the tide
running strong flood and from the formation of the
where the oneota lay They alege further and make |
it prominent part OF the defence that
in improper place that she had and along
side stage oat which could and should have been
removed. 1t appears in evidence that at IL o'clock
the steamboat Chelsea was at or near the Navy
Yard md in eddy outside Of the current Of the |
river, where she took in tow the schooner Louisa
q 200 tom buIihep, and mailing fast his tow upon
the stsIbcard side OF the Chelsea put on steam
for pier No o. down East river at food tide running up
East river: that when the Chelsea with her tow struck
Ghe tide, she ras heading ON her proper course down
East river but not being strong Roadway the tioe
struck her turning her head up East river out Of her
proper snd TO bring her back, me wheels of the
Cheea and the Louisa put hard a starboad The |
food tide proved strong and rapidly carrying the
Chelsea and Louisa upon the long pier above the 0neota
and 20 prevent this and 70 save the Chelsea and Louisa
from this diasier the Chelsea ported her wheel 10
round and PASS The pier upon her Iarbosrd side But
the scanty and the strong tide operating together
The Chelsea with her tow taken directly upon the
Oncota and her hot produced the damage forth In
the libel Substantially, these the facts and the
j. 10 be decided by the law arising these facts II
il coDrover regarding the law rather than contro
flTy 70 the facts OF the Then. according TO the
rules If law where is the fault The only fact about
which there he said to be any serious dispute Is as TO
the position Of the oneoa al the time Of The collision
The all ges has already been stated that her
position was an mptoSr but the weight Of the
evidence establishes bty oDG doubt that she was In pro-
Yer place usual place for steamboats, TO be made fast
and for other purp and the Court 20 nds
The TACT The 0Deota then not in fault The damage
was incurred by the Cheea, but whether She Is respon
sible depends on another inquiry Was the collision the
result OF inevitable accident the force Of the tide.
without any ~ skill mmanagemen on the part OF
the master O the Chelsea IL then there can Dc no
claim for damage in this This the principal in
quiry and in order 10 dispose Of thus question satiac
toriy II will he to the position Of the
Chelsea before the whed her anchor TO the state Of the