The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1860-10-05
tNf.EU FIAfEs NkNtNtt OONHs
Before Hon. judge Nelson.

oCT 4-John Richards and others Is he Schooner G H.
Montague This s libel ed 70 recover the possession
Of the schooner by the The proos are very vo
luminous and complicated, embracing 30 me nisr hundred
oos manuscript. 1t 10 denied but that the libel
sns the original Of the vessel but that
the claimant is bona fde purchaser for value. The
question in the case is, whether not Atwater who
sold and conveyed her to the claimant had At the time Of
the convey obtained the title OF the lbeaHts We
agree II he possessed the title at the time, though OBJ
tained through fraud and covine, tho claimant be
ing bona tide purchaser, is to be protected. And
hence the lbelants are bound 70 show that they
have not parted with the title. or in other words
that Atwater had not acquired IT, II Is qaite clear,
il the question fmply between the llbellants
and Atwster, or between Mix and t1em, from whom
At~ater derived the possession, there could be no
great difficulty in disposlng of y, as MIX took pos
Session proc.sedly for the benefit VI The belants,
and the proofs chow that Atwster is chargeable with
notice OF the circumstances, and AGED IN the safe 10
the claimant in collision with Mix The qneston Of
title depends upon two groupds- sale Gl The vessel
at san Fran sco California; under judgments anu execn
ions obtar sganst her before iastice of the peace
(2 sale under power Of attorney executed by the
belants with others las 10 the sale under the jadg
mens and executionsBy act Of The state OF Calor-
MIA, power conferred on justices OF the peace 70
issue proc,g9 boats vessels used 10 navigating
the waters Of the State nong other things 9r damages
arising from the nonperiormance Of contracts touching
the transportation OF persons or property Sections three
m twelve provide Substantially, that plaintiff wishing
To- Institute suit against the vessel shail Ole HE com
paint ngsret her by name and Die II with the justice
Section Jour the complaint shalt set forth the paiais
demand 10 all It's particulars and shall be vefhsd ny tho
affidavit Of the plaintiff or other credsbe person
The weight of tie proof In the rs, that these
PROV siors have not been fully complied with, and
they isdictona faes 1t u claimed ina, inc JUS
tce &C iurci jurisdiction over the vessel We have
before the testimony OF the Justice and copies OF his
docket Tho latter makes 10 ailason to the complaint,
End the evidence o. the justice s not explicit or very
fun upon the point especially Ia pect 70 the veflct
tion Of the complaints, for some twenty suis OF more
were Instituted attorney for the plantih, whose
or instituted the proceedings before the Justice and
who on the day Of the warrant appeared hmef 70
conduct the cases has been examined for The oelnts,
and bis testimony very explicit and full that the steps
required by the Justice TO give jurisdiction had not been
complied with and satisfied he ,ha. the court had
acquired Jurisdiction tho vessel, he withfrew
from The cases avoid responsibility as respasscr.
lie looked INTO complaints for express purpose az
certanipg proceed ngs had been conformity with the
I iriunc,Icns Of the statute The Jurisdiction coa.
| feucd Is limited and special, ana summary ant
severe ,,rsa, eAeru'01 should a be held 70
strict compliance with all the preliminary steps enjoned
by statute before seizure OF the property THIS not
Only general pn spe applicable 70 courts OF inferior
jurisdiction but should bo steadily enforced Ia cases
where aud summary disposition OF property
follows II said that the general agent OF the owners,
who was present appeared made defenos the
suits But IL In sailc ent answer 70 say that THIS soui
rot confer Jurisdiction upon the Justice over tue vessel
prov icns II the had been proceeding IA persondm
the appearance might have waved any irresaay In tue
the person We are opinion therefore, that Mx took
70 title under purchase Then, 70 title under the
power attorney. This poser referred 10 artc cs OF
which these libcllants an others had entered
into which tho had brought In the vessel
stock At the price OF $40 o00 and In which IL agreed
that a. tho of the articles the vessel should
ecd for The OF the assocla 81 public suct
The power question made and executed - carry
into eject ths proviaon In the arti:les aud II sale
under the execution Of the power thus given and for tne
purpose stated that the claimant sets up vesng N.Y.
| and uadtr him Atwaer, with the title. the sae under
The power made ~ NIX without any consideration
We do not however, place any weight upon this latter
fact The simple question is whether the power
ecu,ive within its terms We think not Tue Articles of
a,focon referred 10 IN the power and with notice Of
which MIX and eli ptrsOns claiming under him are chasa
bel with notices, Is explicit that the sale TO be
public sale the ben sft Of tho association and tho
power directed IL should be made 10 conformity with
The requirements Of the articles AMI not contrary 70
them. Instead of public sale, Mix seat from san Fran
cisco pursuit Of the persons who held the powcr,
and who mining In the mountains or California ani
pusuated them BY fafc representations 10 sign bill Of
sale without any Consideration. The eale q private
one, when the 70 only authorized public We
are therefore, Of opinion that bills pa,se1 untcr the
power There other questions In tue such
whether the act Of California conferred intended %
confer jurisdiction vesscE not exclusively engaged
In navigating the internal waters OF the state, and
whether the sheriff constable and not the Marshal OF
the city Of San Francisco, the proper occr n
cute the process ssued under tho Bet not
deem important TO notice them, satisfied the
ground upon which have placed the mwt control
the decision Decree taken and that bclanta
recover possession Of vessel.