The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1858-01-14

PeDDeVIVan0, "
Jones, Of Virginia, deceased.
Tine Great steamshlp Controversy.
UNITED STATES CIRCUIT COURT.
Before Hon. Judge Ingerso
JAN. l3.-John Graham Letois H. Aeyer.-The plain
tin has brought his action of rover against the defendant
in which he seeks recover the value Of certain steam
ships claimed to have been wrongfuy converted by the
defendant to his The amount demanded as da
IMAGES four hundred thousand dollars An order has
been passed to hold the defendant to bail in TIE Of
three hundred and sixty thousand dollars, and he lie
now holden for that amount The plaintiff in bis andavi,
upon which the order TO hold 70 bail was founded, sets
forth the following ctsThat he the plaintiff on the 9th
day Of December A. D. 1865, the owner Of the seam
ships Ocean Bird and ST. lawrence and Of one undivided
third part Of the United States Mexico all Of the value
of four hundred thousand dollars That the last
toned day the plaintiff barganed and agreed with the rm
Of Meyer Stucken, Of which frm the defendant was
member 70 n loan to him. the Plaintiff one hundred red
the loan and forbearance Of which the plaintiff agreed
give said Meyer stucken, and they agreed TO
ceive from the plaintiff the sum Of twenty thousand
dollars. That them for the said proposed loan
the plaintiff conveyed to them the said steamships by
bills Of sale absolute on their face That pursuanceof
said agreement the plainr received from them about
eighty thousand dollars That although the plaintiff did
frequently before and after the expiration Of the four
received from them Aforesaid and the sum 80 agreed
TO be paid for the loan and thereof as sore
yet that they have refused reconvey and deliver the
10 the plaintiff, and have converted the same TO
their use. The transaction - said to have taken
place in the city OF New York and as by the laws Of the
State Of New York. all conveyances for the security or an
usuri0us loan OF money are declared 70 De absolutely
Of personal property for the security OF an usurous
loan money has right to proceed IN an action Of tro
against the party loanng and receiving the pro-
pcrty as security, If he converts il to his own
use, II follows-as the defendant is charged in
the affidavit with making the usurous loan, with recev
with refusing TO deliver them up TO the plaintiff upon
demand being made for the same-that there is good
cause Of action shown in the afioavt and the alega
tons in the affidavit true the plaintiff has right to
require that the defendant be holden to bail An order
was thereupon passed to hold him TO bail And dsn-
terested Witnesses that the steamships worth
the Of three hundred and sixty thousand dollars, the
defendant ordered TO be holden TO bail in that amount
motion made by the defendant TO be discharged
common BAIL or to mitigate the amount for which he
The facts upon which this motion is founded admit of
little doubt. On the fifth day of December, A. ID.
1885, the defendant and Stucken were in partnership
under the name OF Meyer Stucken. They have ever
since BEEN and are in partnership At the last men,
| toned date the defendant was in Europe. For some
considerable time before then he had been in
Europe, and has been there from the said 9Th
day Of December, 1866, TO about the middle Of octo
Der, A. ID. 1857. On tee 9TH day OF Deem
Der, A. D. 1885, stucken advanced the plaintiff
of money amounting 70 At least eighty thousand dollars
On the same day he took an absolute Dill OF sale OF the
took possession of the same with the consent Of the plain
tin The traction purPored TO be an absolute sale Of
plaintiff insists that IL in reality usurious loan OF
money and that the ships transferred as security
merely for such usurous loan OF money Stdcken insists
that there loan; that the transaction abso
lutte sale Of the ships for valuable and adequate cons
Iteration paid In considering the motion nov made,
will assume that the transaction the plaintiff and
Stucken usurous loan of money that the transfer
of the steamship was in reality merely asecuy Tor such
loan OF money, and that Stucken would be liable 10
the plaintiff IN an action of trover for the value Of
the ships. do this merely for the purposes Of this
case, without intending TO intimate what, in my opn-
ion was the true nature of the transaction between
the plaintiff and Stucken, as there is no neces
sy for me 20 determine what It's nature
to make disposition OF the motion under con
sderaon The question: then Is presented would the de
iendan upon this assumption upon the facts as they now
appear be liable 10 such actonY The ships sold by
stucken in the month Of May 1856 for one Kindred and
eighty thousand dollars, he before that havng been
certain liens upon them. Up 10 the time of the com
mencement of this suit the defendant his know
ledge the plaintiff he never personally made any
loan Of any Kind him. had any transaction dealing
with him No demand has ever been made personally on
the defendant deliver the steamships % the plaintiff
for the 10 the plaintiff % pS the value
Of the 10 him. The defendant was not consulted in
reference TO the transaction between the plaintiff and
Stucken and the cenffact between them negoAled
concluded when he absent in Europe, and he had
knowledge reference thereto The defendant knew
nothing OF any transaction between the plaintiff
and Stucken any took place There evidence that,
prior the commencement Of the plaintiffs suit he
ever med that the plaintiff claimed that the transac
ion between him and Sucken an usurious one He
authorized any usurous transaction between his
partner stucken and the plaintiff and as he knew netting
partner Sucken at the time took place and rs there Is
evidence that he prior TO the commencement
OF the plaintiff suit Informed Of any such usurons tran.
sacton, cannot with truth be said that he ratified
such usurous transaction II In point Of fact ever
existed.
After an elaborate review Of the law Of the case Judge
ngersoi concludes his opinion by saying THAT W make
the defendant liable In action OF tort for this violation
Of law the part OF Stucken, must be made 70 appear
by other evidence that he either authorized II or
ratified H. And have already shown that he never
authorized IT and up 70 the time Of the commencement
Of 4 no ~
violation Of law he could not have ratified any viola
ton OF law.
This view Of the notion under consideration, set
ties queeonhat the defendant should not be holden
10 bail 70 the demand In the plaintiffs suit. An
toore 10 bold him 10 bail In the sum OF three hun
dred and sixty thousand dollars and that he be discharged
common bail In June, 1885, the plaintiff brought his
suit 10 equity against Stucken and other parties for The re-
covery Of the ships question the value thereof The
defendant not made party 10 that suit In equity
He was out Of the country when Il was instituted, and
could not be served with the subpoena There Was
prayer, however In the bill that he might be made .
party should he return 70 this country. He never has
been made party. motion Ia nov made by the de-
fedaHt that the plaintiff be compelled 70 elect which suit
to pursue-whether the suit in equity the suit at law
and that all proceedings In the other be stayed unit the
final determination Of the suit elected TO be pursued
When there Ia suit in equity and suit at law, between
the same parties for the matter and thing,
one cannot be pleaded In bar In abatement OF the
other But notw Outstanding this, courts OF equity viii
sometimes order a stay Of proceedings In one until the
other n determined. The defendant in this suit not
party the suit equity. His interest cannot be affect
cd BY the determination in that suit determination
against plaintiff that suit will not deprive him OF the
right TO pursue the defendant In this The determination