The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-03-19
Supreme Court-Speclal Term.
IMPORTANT MERCANTILE DECISION BY HON. JUDO

IMPORTANT NERO CAMILLE DECISION by HON. JUDGE
CLERKE.
MARCH 15.-Beck and Kunhdrdt against Ste1tdni and
ohers-This motion to dissolve an injunction
Of German goods to the amount Of nearly
$40 goo. The following is the decision Of the Court
Clerke, Justice-P. A. Milberg, of Hamburg Germany
consigned TO the plaintiffs four different shipments of
Jacob Ryback of the defendants, upon payment Of
the freight and expenses Upon the arrival in December
last Of two of the consgnments by the ships Rastede
and nonan, they delivered to Ryback the bills OF ladng
for them receiving from MIN the amount which they
demanded for the said charges. Soon after this the
plaintiffs received notice from Mlberg and from other
defendants in this action that the latter claimed
entitled to the goods embraced in the consign
ments and cautoning them not to part with the pos
session of the property and of the bills of ladng Ry
back, the ground that he had fraudulenty obtained
possession Of it from them being merchants and
goods with the design of paying for Them and OF
causing them to be conveyed secretly to the United
Staes and, to carry out such design, he caused the
goods to be secretly removed from Vienna to Ham
burg, and there shipped by Milberg, who was not
then aware Of the fraud, to New York, whittier
Ryback himself soon after took passage. On
ceiving this information, and before Ryback with
the exception Of two each containing panofore
obtained actual possession of the property out Of the
public store where they then remained in the custody Of
the collector, the plaintiffs applied on the 3Oh Decem
ton which granted to restrain him and the other
claimants from taking possession and dsposing of the
property and for the appointment Of receiver praying
in their complaint that the defendants be
to interplead and settle their conflicting claims and that
they, the plaintiffs may be absoved from all liability
that they interest in the goodsthat they not
collide with the defendants any of them and that
this action is commenced solely for their
They further alege that after the this
action and after service of the junction he
entered into stipulation on which an order was duly en-
tered which agreed that Mr. Charles Loose the
Austrian Consul should be appointed receiver of all the
goods comprised in the four shipments with liberty to
make sales and 10 retain proceeds TO await the further
order of the Court but that Rybac IN evasion Of those
proceedings, and in violation of the Injunction made
pretended sae to Stephani, since made defendant by
amendment, and fraudulently continued with him to
have the goods which imported in the Rastede
moved from the public store and afterwards placed in the
vered BY Pvback to- Corona and Itenfelt. as commits
sion merchants, for sale his account They also
made defendants by amendment claiming, however, to
be indifferent between the parties and now holding the
property subject to the order of the court On these
facts the plaintiffs apply for extension OF the in
junction and recevershp to embrace the proceeds
Of the goods that might have. been sold and the docu
mentary evidences of title to all Of the GOODS for
ceivershp against Stephan and attachment against
Ryback for violation of the injunction. The defend
ants, Ryback and Stephani, severally for dsso
luton Of the injunction with costs against the plain
the plaintiffs in their original and amended complaints
and in their afadavts. l. The facts charged against
been brought before the court by supplemental COM
plaint because according to the plaintiffs state
ment they have occurred since the original complaint
presented. (Hornfager against Hornfager, How.
though sephan alleges that those facts occurred prior
to that time yet in this inquiry only regard the
an rreguarity or nultyY If only the former it can.
Be @ oa G. the
irregularity is very different from nulity
essential defect, which, with exceptions, may be
taken advantage of at subsequent stage of the action
and is not necessarily waived notwithstanding incon
sistent step by the party afterwards obecting The
of courts of justice indicates unmistakeable incli
nation to treat devations from proceedings prescribed
by statutes 2, rules as irregularities rather than
any serious injury to the party whom it affects; and
while he is allowed ample opportunity for insisting
that the mistake should be rectifed before he can be
compelled to proceed action, IL he permits the OPP
porunity TO escape to be presumed that he did not
deem any notice Of il essential his interests think
the amendment of the original complaint instead of
supplemental one ought to be considered rregurity,
nullity. 1t is q technical objection AZ
fectng rather the relative congruty of the ngs
than the substantial rights and interests of the dcen
dant, Stephapi In possible respect it be mpor
tant to him whether he brought into this contro
vorsy by amendment instead or by supplemental
complaint If then, this is irregularity has not
his appearance waived all right his part to object to
ity notice Of appearance all defects the
mons. 1t is admission the part of the defendant
that he is regularly in Court and whether he appears in
obedience summons Astounding in defects without
at all he is before u.s. to all ntents and pur
poses, as defendant in the action. Q shall next
action demanding parties to interplead Instances
are continually occurring especially in commercial
community, where from peculiar and unforeseen cir
cumstances, person who q debt, has incurred
liability, is unable to determine without serious
risk which Of several adverse claimants it should be
rendered. and to prevent the probable possible
injustice vexat0n arising from the prosecution Of
tons by any all the claimants, this Court will compel
them to test their claims by judicial investigation in
action between themseves in other words, the Court
will compel them to nterpead on the application of the
person owing the duty or liability, and viii relieve him
interpleader. Maddox, chap. 1922 The plaintiff,
however, must show that he does not colude with any
old distinctions were denominated ieg.MtRat priority
should subsst between him and the defendantsthat he
in possession actually constructvey-hat he does
n and
that he in other way be protected from oppres
slve OF vexatious litigation in which he has no personal
has incurred the debt ablity-whcther stock
holder or tenant or an ordinary agent or public
officer, accidental recipient of the property.
lie has right to claim the equitable intervention Of the
Court for his complete naturalization and relief To
be Is said that Courts do not look very avoraby
upon this proceeding and that Lord Hardewicke is
ported to have expressed himself unwilling to allow
inventions in the bringing Of such remedies etca
Harvey, Osy, 249) But mode Of relief which
be in many instances advantageousy resorted to will
never be denied when the plaintiff present state
of facts of the description to which have adverted
And this, think the plaintiffs have very satisfactorily
done in the present discover nothing to de-
bar them from resisting that those adverse defendants
which the defendants any of them may think proper
to institute Neither is there in the which
takes away the right to resort to this remedy The
ton of the code referred to by the respective counsel of
Ryback and Stephani, provides for cases where
claimants against party in the situation Of those
plaintiffs Persons situated still allowed at all
events where no action has as yet been commenced
against them to have to this proceeding The
remedy prescribed in the code is merely
Having settled these points, IT is not necessary for to
dwell upon the merits disclosed in these applications
There Is very sharp combat Of aiavits, not unusual
grieve to say, on such occasions They utterly dis
crepant and rreconcabe and this is enough for
requiring the contestants to nerplead ia order have
their rival claims adjusted according to the ordinary
and practice of judicial proceedings 1t is IT.
them that the property in question should be retained
in the custody Of the receiver to await safely the
final adjudication Of the Court am Of opinion that the
plaintiffs entitled to oil the relief they ask and tina
the applications made by Ryback and Stcphan to dssov
the injunction should be denied without costs.
STEAMBOAT COLLISION ON THE OHIo-LOss OF
IlrE-The Wheeling Argus of the I'd instant says
unorn Ia cfaa Ia