New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1858-01-14
Ia " LNIEXLLGENCE
UNITED STATES CIRCUIT cOURr-J4a 10 -Bee-e J.ise
lNCERS0LI.
Graham n.,M Never

be- c"inpilcd To elect which of the two suits, that
law or that IN equity lac would prosecute. The Judge
however, held that the suit AT law the one 10 which
Mr.. Meyer IS party and which he was arrested
cannot Ice maintained and that The defendant must be
discharged. The following l. The Judges opinion:
NGFHsoLL 1.-The plaintiff has brOuI!.j ais action
Of tIoycr against the defendant, in which he seek.
f. recover the value of certain steamship claimed 10
have been wrongiuy converted by the defendant to
his own use. TIE amount demanded as damages ia
s;C0CC An order has been passed 10 hold tile de-
terdant 10 bail in the of $3.50 COO aad he is now
held for That amount
The plaintiff in l' affidavit, upon which the order
90 hold 10 bail founded sets forth the following
facts: That he, the plGiItif on the fifth DAY of De-
ccmber, A. d. lN'j was the owner of the steamships
Ocean Bird and ~. Lawrence, and Of ono undivided
third part, of the United States or Mexico all ofthe
value of {iOp,OOO That Oh the last-mentiOned day,
the plaintiff bargained and agreed with the firm OF
Meyer Stuoken Of which firm the defendant was
member, to loan TO him, the plaintiff, Sl0o UV Tor hc
space Of four months for the loan and "rbesrance OF
which the plaintiff agreed TO give 10 SAID meyer ~
SuCkcn and they agreed tn receive from the phnt,
the SUN of 500 coo That to secure them for the said
proposed oan the plaintiff conveyed to them the SAID
Steamships, bv bills Of sale absolute on their face.
That in pursuance If said agreement the plaintiff re-
ceved from them about $50 900. That, although the
plaintiff did frequently before and after expiration OF
the four months offer to pay to the said Meyer
ciuoken the sum received from them aforesaid.
md the agreed Ia be paid for the loan and for
bcarance thereof, aforesaid. and demanded n re-
conveyance of said Steamship yet that they have
refused 10 1cCOuNtl utIlN up tHc 1" INC
plaintiff, and have converted the same to their own
use.
The transaction IL said TO have taken place in the
City Of New York; and a., by the laws OF the State
of New-Iork all conyeyanccs for the security of
usirOus loan Of money are declared to be absolutely
void; and as by such laws, the party making a con-
veyancc of personal property for the security of All
usurous loan of money has right to proceed in an
action Of trOver against the party loanlng and recev
ing the property security, If he converts it to his
use; il follows, a. the defendant is charged in the
affidavit with making the usurOus loan, with receiv-
ing the steamships rs u security for such usurlOus
loan, and with refusing to deliver them up to the
plaintiff upon II demand being made for the same,
that there is a good cause OF action shown in the
affidavit; and if the allegations in the affidavit are
true the plaintiff has right to require that the de-
PENDANT be holden to bail. An order thereupon
passed TO hold him to bail. And as disinterested
witnesses swOre that the steamships were worth the
sum OF $500, Geo. the defendant ordered to be
holden to bail in that amount.
A motion is made by the defendant to be dis
charged common bail, or to mitigate the amount
for which he is now holden.
The facts upon which this motion is founded admit
Of little or no doubt. On the 9TH day of December,
4. ID. 1850 the defendant and one Stucken were in
partnership, under the name of Meyer & Stucken.
They have since been, and now are, in partner
ship. AT the aforementioned 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, 1855. to about the middle
of October A. d. 1857. On the 9Th day of December,
AID 1853 Stucken advanced TO the plaintiff sum of
money amounting TO at least SSo,OO0. On the same
day he took absolute bill Of sale of the ships in qucs
ton in the name of Meyer Sucken, and took posses
sion of the same, with the consent Ofthc plaintiff The
transaction purported to be an absolute sale Of the
steamships upon valuable consideration paid. The
plaintiff insists that was in reality an usurlous loan OF
money and that the ships transferred asasecurty
merely for such usuous loan of money.
that there was loan that the transaction WAS an alb
solute sale of the ships for valuable and adequate
consideration paid. In considering the motion now
i. hut, fya mo pypp
plaintiff and Stucken, an usurious loan of money,
that thetransfer Of the steamships was III
a security for such loan Of money and that Stucken
would be liable TO the plaintiff in action OF trover Tor
the value of the ships do this merely for the pur-
pores of this case without intending to intimate what
in my opinion, was the true nature OF the transaction
between the plaintiff and Stucken, as there Is no ne
cessity for to determine what its true nature was
TO make II true disposition of the motion now under
consideration. The question then is presented, would
the deendcnt upon this unpOn, upon the facts a.
they now appear be liable TO such action
The ships were sold by Stucken IN the month OF
May 1856, for SlS0,000 he before that having been
obliged pay about $4,000 to satisfy certain liens
upon them. Up TO the time of the commencement OF
this suit the defendant never to his knowledge saw
the plaintiff; he never personally made any loan of
any kind to him, or had any transaction or dealing
with him. No demand has ever been made personally
On the defendant to deliver the steamships to the
plaintiff or 10 account for the same to the plantt, or
10 pay the value of the same to him. The defendant
was not consulted in reference TO the transaction be-
tween the plaintiff and Sucken, and the contract be-
tween themw negotiated and concluded when he was
absent in Europe and he had no knowledge In reference
thereto. The defendant knew nothing of any usuri-
ctions between the plaintiff and Stucken,
any took place There is no evidence that prior to
the commencement of the plaintiff suit, he was ever
informed that the plaintiff claimed that the transac
ton between him and Stucken was an usurious one.
He never authorized any usurous transaction De-
TWEEN his partner Sucken and the painti; ana AZ ne
knew nothing of any uSurious transaction between the
plaintiff and his partner Stucken at the time 1t took
place and there is no evidence that he ever was,
prior to the commencement ofthe plaintiff suit, In
formed Of any such usuriOus transaction. 1t cannot
with truth be said that he ratified any such usn-
rOus transaction it, in point of fact, 1t ever existed
What the particular terms Of the articles OF copart,
nership which existed between the defendant and
Stucken were does not appear. We know, however,
that it was partnership fora lawful purpose. 1t il
to be presumed therefore, that the articles were suc
ordinarily exist between partners engaged I'D iawiui
business. by such articles one partner does not a''-
horze the other to engage in unlawful business The
law of New-York makes it unlawful to loan money at
usmious rate of Interest The law declares that all
ConveyanCes made 10 secure any usuriouS loan shali
be absolutely void that no title shall be transferred
BY such conveyance Ii also declares that when the
panty borrowing goe into Court of Equity to recover
back the property conveyed as security for the loan,
he shall not be obliged to tender or pay the actual
amount received that he may ask for equity, without
Offering to do equity. The transaction therefore, as
claimed by the plaintiff between him and Stucken, was
an unlawful one disastrous in its consequences, and
highly preudical 10 the interests OF the defendant
he To be bound by it. And the partnership articles
cannot be invoked to authorize Stucken to make the
defendant liable in action of tort committed by him
either in his individually, or in the name OF
the coparthership.
A tort committed by one partner, will not bind the
partnership the other copartner unless be either
authorized or adopted by the firm, or be within the
proper scope and business of the partnership Story
on Partnerships, sec. los tort an act IN violation
of particular statute law, and attendant with for
eiture ia not within the proper scope and business OF
partnership, entered into for lawful purposes.