The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-11-15

y ssasSa Of Tie :vsrnen. IA whose courts t.s es.ss
!. ospsssins That question Of great i.psstsasS
% until the point shsn come directly in judged"
s.% Judge Grer IN tho case in Wallace, -
'Snss ssors 70 the case IN whsstc. dseiIs rs
orsgn government to institute and prosecute suit hr
. breach Of contract, that is not sufncIsnt 70 a.
government be has been authorized to cot. All shat
hey decide IL, that consul, BY virtue Of his once
If his government and that public minister has such
cover And Judge Story strongly intimatss, indeed
ns seems to admit II consul has the special sstAseiV
,f his government to present nterpose claim q
ts behalf before court Of justice that that spsoia
authority would Be sufficient And II foreign govern
rient to authorize him to institute and prosecute san
in favor OF such foreign government 4 would seen =
iSncv that could invest any private individual xsA
concluvon that the government of Peru has right .
file ana prosecute this libel in the way that Il has tssa
position action Of the public minister from the Psru-
Wan government to make II valid. There can b -
good why the authority given By aforesn gsvsr.
ment with whom we are at peace, to private iniAas1
TO institute suit in this court or other court e
justice for the recovery Of damages for the breach u
reason OF State public polcy-and perceive -
sufficient Of the kind to prevent recognition e
ss0 result ss ssS % s
entered into BY smith whether that charter parV
charter party and responsible in damages for its vs
lation tbefore considering these question: win dis
pose Of claim not going TO the merits which has -
Mark Cornell nor Foster Stephenson have any right
to intervene In this Previous to the 7th Of July,
day. by bill Of sale duly executed he transferred =
his title and interest In the ship to Cornell That ~
sale was 10 ~ ~. e. the net Of
nothing s.s in the case, would give to Marx Cors:a
NELL the 10th day Of November 1852 parted with n
his interest in the ship to Foster Stephenson, BY bA
sale s on the face Of It. absolute But both parties e
Y at the time It was given considered it and intended
that it should be but mortgage given security foe
they have always considered and treated it such And
both parties intended it TO be, and have always
ship there can be no objection to its being considered
merely IA such security by the court, unless the libel
liant Is preiudced by it's being considered and pre-
JUDGE result to the beant by treating the bill
sale the parties intended that It should be treated
Foster Stephenson, in their answer set up that thu
ownero Of the ship, mortgaged the to Alcesnon
Austin, to secure the Sum Of $66,041 Of, which mort
gage was on tie same month recorded on The books
the Custom House in New York; that tl,c last men
toned mortgage was, the 4th Of September in tn
year, assigned by Austin to them, The said Foste
Stephenson and that on the 10th OF Aovember 1865
Cornell then being the owner Of Ne ship, and tn
same then being subject to the ia ! mentioned mort
gage, made and executed to thea Foster Stephen
son. bill of sale by way Of Uorea only for the puz
pose of securing to them the payment Of the sum the
due on the mortgage to Ansi.n, and also the SUM
request Of Cornell For the already given th
later instrument is to be treated mortgage, and
security merely for adyaafi made But ~ should
bill Of sale, it would no' prevent Foster Stephenso
from intervening in e way they have done. They ha
set up in Their answer by way Of defence, title to u
ship dependent uon the performance Of certain cond
tons, and which lille they soy may be Invested BY I'd
performance OF such conditions The lbellant claim
At fno nfa Nv E0atpr n
proves anything proves absolute tle title depen
ent upon condition and that therefore tho proof
tons Of title set in the dependent upon
tain conditions, and to be Invested upon the performan
the claim sD
they cahnot be deprived Of that right By proof tn
that part their answer which sets up that their tit
tons is not true BY proof that their title is an sS
lutte one instead Of to Be Invested upon the peror
Of Sss y sn, they
Of defsnce in their answer. Marx Cornell therefore,
well as Foster Stephenson, has right to interveu
bears s1 date tie III day August isss II Wss
cuted BY Adam Smith, and purPorss to bind the shI
ship. The following provision among others, is 90
tanned in it-"penafty for non performance Of u
ri6catiOn Of Preudices caused by the party delinque
10 the party observant" The contract in the chart
party contained, performed the part Of ii
ship, and the question is, Is the ship responsible
damages for the non performancef And that quests
depends upon the question whether, at the time th
owner Of the ship, or had lawful power and authorit
he entered into On the 1th Of July 1852 and for
n the Sd day of April 1852 he then being owner thu
hip was sent by him, loaded with cargo Of merchant
disc, under the command Of Capt. Artell Austin, ON
voyage to SAN Francisco She arrived at her port q
destination list of September in the same year
She was consigned to Charles A. Thackstcn On the ri
Of July 1852 by bin OF sale duly executed and record
ed the books of the custom house In New York Smith,
sold the ship to Mark Cornell There was suaacsnt
consideration expressed that bill of SALE 1t was rood
between the parties to it, whether any consideration
was paid or not. And whether any consideration was
paid or not It was good against all the world except
such as might be dersudDd by It, As sufficient consi
deyation expressed in the bill of SALE that suceut
consideration will be presumed to have passed, unta
ns the s Of
then take actual possession Of her. She remained at
sea until the LIST day Of September when she arrived at
San Francisco. That bill Of sale recorded the
books Of tho Custom House in New York the Esd day
Of July 1852 in pursuance of the act of Congress- By
that esn and ia. the title to Tho sh
had passed to Cornell After such constructive notice
had been given on the 18th day Of Ausust in the same
gence in not taking possession of the ship by which
the ibeant was deceived to who the true
libel There haa been sufficient proof adduced TO m
validate that bill Of SALE to show that the parties -
what purpors to he It's face an absolute bin OF ssie
given for suic.ent consideration And the only re
manng question In this part of the is, Adam
smith authorized by the to contract he aid con
tracts When biz Of sale is made Of ship and after
the sa the purchaser permits the former owner to re-
main in possession, treating the ship as his own and
with the consent Of the purchaser holding himself to
the world the owner, having authority to bind
the ship in such case such former has power to
contract SO as to bind the ship And when the pur-
chaser negccts to take possession Of the ship when
il in his power to take possession either by himself
his agents. negincs TO do that which he ought to Dc
in reference to the taking Of possession by which third
party contracting With the former is led to be-
eye that the title to the ship has not been changed Ia
such case such former owner, when contracting with
such third party bind the ship In this case at tha
time the charter party was entered into by Smith, Cor
nell had been guilty Of negligence in reference tho
taking possession Of the ship, She then sea
had been from the time Inc took the bill of sale. He
could not therefore, take actual possession Of the ship.
And in order that all who might treat with the ship
might have notice that the title had passed TO him. that
he the true owner be caused his bill Of sale prior
to the time that Smith executed the charity party to be
recorded on the books Of the Custom House OF New
York. At the time the bill Of sale executed by Smith
I. Cornell they both had Offices In the building.
ODE Doty, up to that time, and for short time after.
wards clerk TO Smith. He afterwards hcca,ne =