The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-08-06
United States Dlstf let Court.
BEFORE Hon. Judge Ingersoii.


Elisha D. Hurlba and Others rs. the sg s Go n6y
PanrI[A Abstract o. 0pin9nl aTlIut and John
ports r to be IN 3 iEHFe under the name Of E. D.
nunbHt Co., Dawson, Young, Amasa HAYDEN and
Amasa Hayden, Jr Russell h. Post John h. Fowler,
and G. II Pond. It is signed in the name Of =. d.
Hurbut 4 Co., by John D. Hurlbut. None Of the
other persons named in the libel as lbellants have
signed it, either by themselves, by an agent or
attorney, and it is sworn to by no one but John d.
Hurlbut. 1t is claimed in the libel that Z. D. Hurl-
Of the ship Cotton Planter ard that the other per-
sons named in the libel are the owners of sevensix-
teenths Of the ship. making majority in interest;
and that the ship is now possessed and controlled by
the remaining owners Of the ship, they being q
minority in interest. And the libclants pray, for
reasons sci forth in the libel that the ship may be
decreed to them for them to manage, through their
agents and ships husbands, +. d. Hurbut & Co.
Certain persons, other than the persons named in
the libel as hbelants, and in whose possession the
ship was at the time of the filing of the libel have
appeared and claimed to be part Of the ship,
and have put in their answer sworn to by Robt. l..
Lane, Edwin Parker, and Z. Hoagland, in which
they claim to be part owners, and majority in in.
terest in the ships that they are preparing the ship
for similar voyage to the in which she has been
heretofore engaged. They say that the persons
named as libeants are not the owners of majority
in interest OF the Ship that +. D. Hurbut q Co. are
not owners o. any portion of the ship; that they
not legal owners in the ship, that they have legal
or other interest in the ship which court of add
nldlly Will pTCteCL IN luis 10TH Oh aCbOQ and
that il the persons named cs libelants are u ma
jority in interest, they have not stated such q
case in their libel IS will authorize court OF adj
miralty to interfere in their behalf: and they pray
that the libel be dismissed and the possession of
the vessel awarded to the claimants. A motion hav-
ing been made by the claimants, that the vessel
be discharged from custody, the court held, that
It was important that the vessel be dis
charged from custody in order that she may proceed
on her soyage, if that could be done without preju-
dice to the respective claimants. That the vessel,
when the libel filed, was in the possession of the
claimants, who had right to her, and were using
her as they deemed for the benefit of all concerned
That unless the bbellants in this libel show clearly
that they majority Of owners in interest and Of
such an interest court Of admiralty will protect
the vessel should be restored to the claimants if that
can be dohe without material hazard to the rights Of
the other part owners. That from the libel itself il
is not clear that f. D. HurlDut & Co. are owners Of
such an interest court Of admiralty will protect
in this form Of action. They had given an absolute
bill OF sale of their interest to Jabez Pratt, and it
is doubtful whether they can now set up parole
condition by which this absolute bill Of sale should
be turned into mortgage. That If it was
mortgage, the mortgages and not the mort
gagors are entitled TO the possession Of the ship
That IL between Pratt and the Hmlbuts it was q
mortgage by reason@Of parol condition, il would be
absolute in the hands Of the claimant, Parker a
thild party who had bought Of Pratt without notice
OF the condition, and the libel does not state that
Parker knew It was mortgage. That If Parker did
take the bill Of sale with knowledge of the condition.
he would still have the legal title, and not Il. d.
HuTlbut & Co. That Il. D. Huribut & Co. are not
entitled TO the possession of the ship as agents of
the owners. The case, therefore, a. stated in the
libel is not sufficiently clear in favor of the libeants
10 warrant the Tusous detention Of the vessel ia the
hands Of the Marshal aud without intending to ex-
press any opinion to the final result upon trial
on the merits, the Court orders the ship TO be de-
liyered to the claimant upon the fling bond 10
have her forthcoming upon the final decree which
may be rendered on the final bearing.