The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-10-10

ments and concludes with prayer for decree that the
purchase money be paid the ship condemned pay
same The respondent, George Logan claims under
the vendee and mortgagor 1t is not material to
state his little b %Grs for wD The court below
that the Admiralty Court possessed no power 10 en-
terrain proceedings for the foreclosure of mortgages
The has been brought TO this Court appeal from
that decree, and motion is made TO amend the
libel to change the character and nature of the
proceeding from suit to foreclose mortgage to pos
sessoy action to possession of the ship the
ground of the general principle that in Of default
in the payment of personal mortgage the title becomes
absolute in the MORTGAGE The amendment sought it
will be to the gavaman Of the matters in
troversy and introduces new and different subject OF
litigation from that put forth and contested IN the
court below. 1t is possible, from the liberalty with
which amendments in peadings allowed in courts OF
original jurisdiction that If this application had been
made to that court it might have been granted on some
terms; but there, apprehend it would have been
the exercise of very considerable indulgence to have
authority in this court to make the amendment for to
make it, and entertain the suit would obviously be In
effect assuming not an appellate but original cognizance
OF the subject matter Of litigation The question OF title
to right of property in the ship or the right 10 the pos
session Of it, all of which would be some involved in
the controversy, If the amendment is made, have
never before the court below and Of
passed by It, In hearing the case therefore, we
10 nH the libel allowed by the Court of Appeals in the
the Of Houseman va the cargo OF the schooner
North Carolina Us Peters r. 40) and which held to
be error much less eecual in changing the subject
of the litigation than the proposed in this Upon
this ground therefore, the motion must be denied There
amendment and that is, as am ct present advised it
would not remove the objection to the jurisdiction. am
not aware of any case of authority or Of any settled
practice usage Of the courts of admiralty in this
try affirming jurisdiction in where the title right of
property in ships, imply, has been in dispute and where
the proceeding as been maintained to recover the pos
session. except between part and shall not
be the first to set the precedent The appropriate remedy
is at common Jaw in an action OF troyer or replevn,
whore the latter action If the party seeks obtain
the possession in the first instance he must give security
for the return Of the properly with damages for the de-
limit in ha fol That IL and
while it enables the person claiming the title to get i'm
mediate possession protects the rights Of the adverse
party. The proceeding in admiralty in where the
title of the ship the right the possession is simply
in dispute and in which the vessel is seized in the first
instance and taken out of The custody and possession of
the adverse party is harsh and may frequently lead to
abuse There was an instance before me at this session.
involving case of greyous wrong in which the rightu
owner deprived of the possession and OF the ship,
and is STILL and where the libelant of straw,
and the owner of remedess to the loss Of the
Of the vessel besides the heavy expenses incurred
the custody and of it. pending the litigation.
fer to the of the ship Brewer This jurisdiction
not exercised by the High Court 81 Admiralty in England
Victoria Chap 90, Hagg. $685. The john ID. Isl.
The Fruit Preserver, Dodson, 2sS The Warrior; and
the collected in Woodb. and NJ, 10S 100,
no. Ill ll2, and 49, Leland ct al The ship Medora)
There conflict in the this SUBJ oct in the
English Admiralty but the weight Of them against the
jurisdiction The act of Parliament comforting it con-
tans several regulations providing possessed by
the courts of law and equity of arriving at the
truth and justice of the and among others the court
is empowered to award issues Of fact to be tried before
the common law courts We do not that there is
anything in the question of title right Of property
in beyond that in the of other article OF
sona property that should make it the subject Of admiral
ty jurisdiction The dispute between part owners about the
employ ment Of her is a very different NATTER the
OF power dspossess the master who had become
dsloya to his owners and such like No doubt the
title may frequently collaerally in question in
where the subject matter in dispute clearly within
admiralty jurisdiction. We are speaking of cases
where the subject Of controversy is simply the title
property in the ship right the possession dscon
nected with matters confessedy within admiralty cogniz
As have looked into the whole of this case and
with the court below that it had jurisdiction
and have also denied the application to amend the libel
in this court may well dispose of the finally
and shall therefore order decree denying the application
for leave to amend and also that the decree below be af
fmed with costs leaving the party to go before the
proper tribunal at law for redress.