The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1870-11-18
HORRORS OF THE DEEP.
The Packet Ship James Foster, Jr., and
rs Terrible Memories Revived.
Ths Case in the Court Of Common Pleas-A
pllatory Motion Denisd-The Suit to DO
Proceeded With on tho Original Status
Oplnion of Judge Larremore.

In the Court Of Common Pleas, Special Term. the
almost forgotten history OF the fortunes perperated
.. hoard the American packet ship James Foster,
n wus Yesterday IN some degree revived 1t win
M remembered with what horror the whole com.
npty was stirred on the arrival OF the ship in this
mort IN March 1859, on the completion or her then
voyage from tho port OF Liverpool, and when the
fearful sufsrlngs TO which the unhappy passengers
n, mat voyage had been subjected were made
yn,wa through The columns OF this paper a cry OF
indignation went up from the whole community so
emDnatic and so deep that the matter OF investga-
non INTO the crueites charged against the captain,
nrss mate and carpenter was specially committed
10 tina Board OF Emigration. But the avenger
was even then pressing on the heels Of the more
guilty and but few days after the arrival OF the
ship mere had elapsed when the captain of the YES
sel and his brother, the first mate Tell victims TO the
disease which their own neglect and cruelty had
engenderel among the passengers and crew. The
carpenter the compliant instrument of his superors
in the whipping and nogglng and in the course OF
starvation enforced upon the unhappy passengers,
was spared the lnal tribunal, but at the present
moment undergoing the punishment melted out 10
Inn Tor his share the horrors OF That bleak month
of March passage across the Atlantic under sentence
OF one OF our own criminal courts.
The passengers, under advice OF proper counsel,
action against tue OWnerS Oh the vessel,
which action Is stin pending and one phase OF
which came OF yesterday in the Court OF Common
Pleas TINS was motion on the pagt OF the de-
PENDANTS pursuant TO an order 10 show why
the plaintiffs should not be compelled to bring IN
parties the executors Of Alfred J. Cipriant deceased.
ana also to serve The ether defendants with the sum-
mons and complaint, and why plantlds' pToceed-
iags should not be stayed uIt1l the same had been
done. In deciding this motion Jadg3 Larremore
says
OPINION OF JUDGB LARREMoRE
This acton brought ia May 1863, against
Charles H. Marshall aud twenty Other defendants,
owners OF the sup James POSTER Jr, for violation
oi "A contract alleged 10 Lave peeh made by them
with the plantlH, William Wright 10 transport MIN
as passenger in said ship nom hNerpoo 10 New
YORK. Whereby Paintn has sustained damages TO
Tie amount OF Sl,uO0. Eleven OF said defendants
nave appeared and pas IN an answer TO the Gem
pIa.ut ID said acton. aud notice or trial on the
part OF inc alntin Was, on November 10, 1869,
seryed on he attorneys OF the said defendants who
had appeared anu ssil attorneys admitted due and
timely service thereof Few months since
Alfred J. Clprant % deendant who had net
bGen served with proc So ana who has
not appeared ia said action died, and the
facl 0. rs death was communicated 81 said de-
fendauts attorneys to the attorney Tor the plaintiff
Aerem 80 proceedings have been taken TO briag
IN the legal representatives OF said deceased de-
lendau fho altorneYs or tile defendants Who nave
appeared now move TO compel plaiDtti 20 bring IN
the egal representatives. Is parties, 10 serve all
The other defendants Win process, ana meanwhile
thaT all proceedings on The part OF the plaintiff be
STAYED. TWO guess are IaTolVe1 III lii decision
OF Tins motlOn.-Fnst, arc the legal representatives
o. The defendant, Clprant necessary parties To THIS
acton second. can Tie palntin proceed 10 trial
or take Judgment against tie GcfaH0ants served
without service OF process upon or appearance OF
the other defendants VINO are named in the sum-
mons The several owners OF a vessel
are tenants Ia common, and must JOIN
or be joined In an acrlon at law brought by or
against taem. II SO joined as palnun, some die,
the right oil action survives TO the surviving part
owners. VINO may afterwards be compelled to pay
TO tne personal REPRESENTATIVES OF The deceased the
value Of MS snare. IL Joined as dciendaIts and the
death II one 81 them occurs the executor or perso
nal representatives OF the one 50 dying, cannot ~
sued joined with the survivors, as the ilaoiliI
diriers i'll The OF eaCh. The executor IL charge
de b0nis testaonls the survivors, de bonis proprlis
and the Judgment could not be thus rendered
the second question raised upon tie argument l
answered by the pleaalngs In the actlon ana IN
code OF procedure governing the same. Tne con
tract. FOR VOCATION oil which this action i
brought IS Joint contrast 9as sars r., fe earn
mas or The ship, and NOT 10 any fixed sum- In the
case OF Chartered vessel. The Code section l3o
provides thai actions against de endants Jointly
indebted ugon contract, the plainfln may proceed
against the DE cndanrs served, unless the court
otherwise direct, and IL lie recovered judy
ment 10 may be entered against all the
defendants thus Jointly indebted, far only
as mat II may be enforced against the JOINT proper.
ues OF al ana lie separate property OF the defend
ants served. The piaintln having joined as
Defendants in this case ali the owners OF the vessel
upon the joint contract alleged in the complaint,
may proceed 10 trial against the defendants served
Is provided by said section 1856 OF the Code. The
DEFENDANTS who are thus proceeded against II
i0rceu 10 pay more than their Just proportion of the
calm. may compel the other defendants to con-
tribute their share with this view OF the case and
the law governing the same, it follows that this mo-
ton must he Denied the OF the TO abide
event OF suit.