The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1857-05-09

sern,a your usua Al comfort The proportion, there
fore. for the Readiog will require shipment OF
AsTaR ACITx.
Decisions In Acknowledgements to the
shipping Interest.
UNITED STATES CIRCUIT COURT.
Before Hon. Judge Nelson.
MAY ST. H. & J u. Secor rs. TIE Steamboat
Highlander case was an appeal from jadg
ment rendered by District Judge Ingersoll in favor
of the libellants for SO 900 for sea engine and
boiler work done ny the hbellants on the steamboat
Highlander. Zoe was argued few weeks
since before the Circuit Cour. by d. Mcmahon for
hbeants, in support of the aiIlrmancs of the jadg
ment, and by Messrs. Benedict, Burr ard Benedict
in favor Of reversal of the judgment 1t excited
great interest among :he ad pir.l,y bar as in the
event of reversal ali The material men doiog work
in New York under terms similar to the case in
question world have no lien Tor their demands, the
Supreme Court of the United States having lately,
by decision IL TIE case Of the Sultans, done mach
to unsete the Jurisdiction of the admiralty In these
cases.
The facrs of the case were these:-The lbellants
agreed TO build boiler for this vessel, put 1t on
board and connect IT, for which they were To receive
s4,40O, in four payments, the last OF which was to
be by note Of three m0nths. The boiler was COM
pleied, put on bOayd and properly connected,
ready for steam. The payments we're all
made excepting the last (the note) payment.
The note Was demanded, brit neglected to be paid by
the owner of the boat Toe libsllanis lbelled the
vessel for the amount due-abOnt 81, 900. District
Judge Ingtrsoh decfeed in favor OF the lioeIlsnts
Appeal WAS taken and ar gued before stated. Two
questions we're presented: FIRSTLY Had the libel
lants lien at AL under the operation Of the dssi
sion in the case Of the 2aitana. Secondly II they
had lien was not the agreement 10 take note in
consistent with the idea Of lien. and thereby no
lien accrued to the nbelia0ts The Circuit Judge
delivered his oDinion this morning in favor Of the
hbelants and against tue appeal.
OPINION
NELSON, c. 1.-THE libel was fled in this casesto
recover the ba anCe due on y special contract to
build boiler for the Highlander, il being 81 400
and interest, and also for work done over and be-
You'd the contract, amounting 70 some 81 ,4SS IS.
A decree was rendered. in the cOurt below tor both
SUNS; the latter account is not seriously in di pute.
The balance on the coutracs is on the ground that
the credit was given to Cornell the owner, and not
to the vessel This CONTRACT Was entered into be
tween the parties on the I'd February. 1855, by
which Cornell agreed to pay for the boilar 81 900
On the LIST March. $1,000 by the Let Of
april, 81 600 when the boiler was on board and
complete, and the balance by note OF three
months from the dns OF complexion. Cor
hell neglected or refused to give the note as
agreed, and this item has been therefore, included
in the suit tor the other portion of the work. There
the boiler is due aud payable, but it is insisted that
the builders bad no lien on the vessel, the credit
WAS given 10 the owners Tue Highlander Is do.
mestic vessel. and che len therefore depends upon
the ate law. This law the date of tue contract
provides that the lien shall cease twelve days after
the vessel Las lett the port for some oher within
the State. e X. s. .. 1888, secs. ], BY subse-
quent law passed March %, 1855, the time il ex-
tended TO sixty days, (S ssions laws D. l74 SEGA.
p So far as the question here is concerned the lat
Ter Law ia not impoftant ceatra i was made
fore les enactment and OF course with refereace TO
the old law. On the part OF Cornell IT is insisted
that the agreement TO take note for the last install
ment ut three months Inconsistent with the idea
Of lien the vessel, US the event would oc :ur to
wit her leaving her port, 10 all humau probability
more than twe.ve days before the credit OF three
tnIee months would EXPIRE and hence no lien could
have been In the contemplation CT the parties az TO
this payment. On the part ~ 'ho iben tnt IL 10
Claimed hat the Whole OF the contract price became
last instamsnt was to he paid by noe at
thee months, and as the note vas not
given or rendered, this instalment beca ne
imme dately due. The question ia close one,
and have entert .ined some DOUBT about it. Judge
Ineersol, who decided the case below, came to the
conclusion that the lien existed aud uforced by his
decree-the mere giving " credit does not necessa-
riiy dispiace the lien. That has been hell in several
cases. The ground here IS not tina. credit was
given, but that the credit Is Inconsistent With the
ioea Of len for the reason unless the boat should
remain at her port for three m nhs the leo wonld
be lost by the terus OF the statute and that this
must have been within the contemplation OF the
parfes The case OF Peyrout vs.. Howard Il Pc
trs, 3fl, bears somewhat on this question. Therea
contra giving an unconditional credit extending
beyond the time which the Law gives TO the lien was
considered IA inconsistent with tue idea OF lieu,
aud operated az waiver OF IT, Fne cife ence be-
tseen that care and che present one Is the credit
given here Is no; absolute as in the shove ise, but
conditional that II upon the owners giving note
ut thrte mJnths, nerlecting or refusing to give
which the credi, ceasei, for the demand then be-
came Immediately due and payable according TO
well settled Law Nov, il may DO going too lar to
say that tac builders must have intended 10 valve
the Zen in the event OF the refusal 10 give the note
for the case comes down 20 that. ! agree that no
did II the agreement was kept on the part OF Cor
nell, and the note given. But on his refusal tn Keep
tee agreement in respect TO This ustalnent there u
certainly much justice In saying that the builder
also should not be barred by it. bat should be remit
ted 10 bis rights independent OF the contract. II
may have been material t. him whether this balance
should remain in account or in a note, upon which
funds could be raised The State act Is very strong
ard positive. z declares that such debt Zone like
the hbs anfs) "shall he lien upon euch ship or
vessel, &C and slsl be preferred TO all other liens
thereof, excep, mariners wages" There Il no con
diton or qualification attached, NJ In cases OF mari
time liens under the admiralty except the YORK done
on the vessel or supplies furnished The affirmation,
therefore, Ines on me claimant 70 dspiace tne lien
That II N insisted has Seen done by showing COZ
tract Inconsistent with any such lien; but this as
sumts that the contract has been fulfilled, In which
event the loss OF lien IA clear; but Is the party gene
rally subject 70 this in sase where i has been boo
kenl II seems 10 me MT. As read the contract the
builder agrees w give three months credit, the
owners giving him note u that tenor; II not, then
credit Vas given. THIS IL certainly the legal ef
feet, IN case Of the refusal and do not see why II
should not be considered a. the meaning intent NJ
the parties Upon the whole, an inclined ~ agree
with the court below, and affirm the decree. Decree
below in lavor OF the bbeliAnts affirmed with costs
rRooS oF ORIGINAL DOCUMENTS ssFoRE uSrTxp
STATES COMMISSIONERS.
addison j. Comstoekcs. Thomas Carniey and Don
a. eastman. Nelson, @. J.-This II an a ,tion OF
uespas brought 10 recover the value of property
seized upon by virtue Of a pro sess OF sttacnmen,
against Darius G. Jackson m this city, ny earn
ley, Sheriff, In favor of Cnshman the paintif In the
attachment Comstock, the plaintiff In this suit,
claims 10 have been the owner o! the properly. 6eye
raj questions were reserved at the trial, and YER
dict rendered for the plaintiff subject 10 TIE opinion
Of the Court Jackson and bis partners, 81 Elyria,
Ohio, had entcredntoa CONTRA vith the junction
MI ~ - a.. A.