The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1857-12-22

surveyor Of the Atlantic Insurance Company in 1854
made no report az the bark Victory in that year
Mr. Dean claimed the right TO examine the books
veys which Mr.. Lord denied, MS Mr. Lord claimed thai
the plaintiff guaranteed the seaworthness OF the vessel
The Court ruled that the plaintiff had right to examine
the books before questioning the witness
Mr. Lord excepted for the defence.
The Witness-I did not make = survey Of the Victory
think gentleman named Ellis made survey in 1864
Mr. Dean offered the book in evidence
Winess-I think the entry about the Victory is made
by Capt Ellis is made by persons In the employ Of the
company; the book is an entry Of surveys.
The Court ruled that the entry irrelevant as tes
mony and that the person who made the entry should be
called to prove il.
BY Mr.. Lord find that in lS4S surveyed this vessel
Mr. Lord waived the reading Of the entries and Mr..
Dean proceeded 10 read them showing her 70 be of 297
tons single deck, copper fastened, common model q
fair built and fitted lcoppered in 1S37 dock December
1S4S; good looking vessel; blge nelson's: cauked and
znced March, 1852 recaulked and bottom Enced Novem
Der, 1854 she rated when built but rated lower af
forwards.
Appleton oaksmih recalled--By Mr. Dean-The Amelia
was provincial built vessel sharper the bottom than
the Victory she would draw water than the other
vessels; She had originally poop cabin; she was
fitted for California and that poop was extend
ed to the main hatch she had but one hatch
deck, there aft hatch on deck;
never told Mr. Goicoura that would replace all the
tclcs on tho Victory the Amelia came back 10
New York after she left in February, 1855.
Mr. lord here admitted that the second voyage not
an illegal voyage.
Mr.. Oaksrniih-The Amelia was loaded partly in Will
another place.
BY the Court-The cargo portion of the lot
- goods purchased by Goicoura and others; did not
give Goicoura invoice Of the cargo when the Amelia
sailed; there was no evidence of what the cargo was;
Hitchcock Co. had no evidence OF what the cargo
except the statement Of Mr.. Gocoura to what the
Amelia contained he came TO my office and 20. my book
keeker 10 make out statement for him; don't know
what has become of that statement; only knsw general
~ that the cargo consisted OF ammunition &c. when
the Victory came back the second tine ! made
an insurance on her and had an interest in her of
about $4,000; / acquired the interes for expenses
Al
the insurance. bad only an nterestn trust-no per-
sona interest
Juror-That is what always Understood
The Court--If had known that would have relieved
You gentlemen of the a week ato
The CourUnless he had been N owner the insurance
was for the benefit Of Goicura, aad he was entitled TO
the benefit OF the policy.
Mr.. Dean-We have an ass gnment of this policy from
Mr.. Goicura dated February, 1865, toM Mr.. Oaksmith
The CourtThe complaint states tha he (Oaksmith)
the sole owner, while the proof that he was but
trustee
Mr. Lord-Ths is but an assignment of the right to sue
under the policy
The Court-It with Mr. lord whether this question
Of law shall be reserved, and you sail have decision
10 the facts.
Mr. Lord said he bad rather consult with his associ-
aes. He briefly argued the Court that far the
law OF interest was concerned the plaintiff could not re-
cover.
Mr. Dean stated that be did know of the assignment
until after the commencement OF the suit He thought the
complaint might be amended.
The Court-Mr oaksmth has prescribed claims TO the
insurance the ground Of his personal interest and the
complaint bears out that idea II the counsel nss upon
that objection shall certainly hold that the action cannot
be maintained.
Mr. Dean-I shall nsis, thai this assignment should be
received in evidence.
Mr.. lord objected, though he thought it would not vary
the case.
The Court-The complaint is that Mr. Oaksmith was the
of the property at the time of making the nsur
ance and the time of the loss If he had interest
al the time of the insurance or at the time OF the loss he
cannot recover.
sr Dean TO the witness-At the time that this policy
was issued had You advanced any money upon these
thingsS a. Yes, sir, had paid for the coal.
O. Had you advanced anything upon the arms and am
munitonS A. As charges, / had, sir.
@ What do you mean by that A. had paid expenses
O when she went 10 81 Thomas what interest had you
in the cargo of that voyage A. considered the Whole
cargo mine, because had been put in my name the bills
had been made TO me- neither bad Goicuya paid for all
Of IT,
The Court-Mr Burroughs has stated that he had paid
for the whoe you state that Goicuyia owned the whole
went out at his risk and when the vessel came back and
insured you had no other interest than whatyou had
before do you mean 20 that you not the
owner Of that cargo, A. was owner.
q You mean that Il stood in your manner A. was re-
sIonsible for all the expenses.
The CourYou did not purchase and was the ownerp
You were acting as agent how did you become the
owner Of the vessel IN the inervaR A. never became
the owner any more than was 10 the FIRST instance Invent
advancing for these operations from time 10 time until
my advances amounted TO over $4,000
q Before You made the insurance. A. But small por-
lion before made the insurance.
Q Had You made advances amounting to 100000 A.
hink not 10 that amount
q. What amount do YOU Think A. Perhaps from 81 coo
IS COO insured by order of Gen. Goicouria Mr. Bur
'ourhs the first gentleman who asked me about the
insurance.
The Cour-I would appear that he bad an interest 10
he extent Of from s. coo TO as 600 prepared to
ay that II the Jury believe him he would be entitled to
cover.
MIR. Iord-He was a mere cover--he was a mere
agent In rosscssion-shippng. They are bound 10 put
this upon that m some shape, and that would only war
raptf Tho vgft lp - 900
Mr. Dean said that the Court ruled, he would pre-
fer have further consultation with his clients before
preceding. lie did not think they should continue with
out a chance To recover the whole amount
The Court shall hold that he only the
extent Of his interest The jury may take recess FOR
hall hour aud the probability is that the case will then
I've discharged.
Judge Dean after the recess stated that he had consult
ed his client Mr.. Dcvcaux who was the only party now
interested and u his Honor decided that they could not
recover the whole amount would prefer 70 have the case
dismissed.
Tie Court am clearly Of tho opinion that you only
recover 10 the extent that you owned IN the cargo.
should instruct the jury 10 find, they come 10 concu
your favor upon the question OF facts involved in
the that you can only recover for your 900 or
- 900. that he urges that he advanced
Mr.. Dean-we would Ike V oier IA evidence The bill vi
these articles made out 10 him and receip.ed,
The Court do not know that this would alter the case.
tured testimony
AFTER some sesuliory discussion II was admitted that
Mr. 18th bad testified 10 being directed BY Goicouria
red On the groruds-frs Tho policy could not attach
EXCEPT the cargo laden upon the commencement OF the
voyage And second that there proof Of Interest
made by Mr. Oaksnth.
Mr. een asked and obtained leave Cor twenty days 10
make out new case.
The Court dismissed the jury as follows
Gentemen-1 thank you for ysur attention 70 this case
regret that these questions were not raised al an earlier
stage az tho case As the testimony Of Mr. Oaksmth
originally given certainly understood him TO swear that
positively be bad interest Otherwise would have dis
ssed The at the beginning.
The Of contempt against Appleton Oaksmith Tor
threatening OF the witnesses, then called and dis
missed The Court did MOI think II covered by the
statute but thought bis copduc, very reprehcnsibo
Appleton and sidney Oaksrnlth were much chagrned AZ
the result &C the case, and hard words passed be
tween them and q the gentlemen Of the defence
Appleton said he would carry the and get justice,
il II took him 10 the lay Of judgment
MARITIME INTELLIGENCE.
SrS~~S~ryF
IIssr,c WV roRx-rHrs
~ nooN SETS w ~
sur srTr ~ My Nslfh morn ~ 10