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Vol. IV.)

THE JOHN T. MOORE.

[No. 9.

seems to be held inttawanna, 21 Wall the United States of

price of ships and other vessels. But by article 3274 no privilege sball have effect against third persons unless recorded in the manner required by law in the parish where the property to be affected is situated.

The claims under consideration were never recorded, and, therefore, can have no effect as privileged claims over those creditors who have liens either by the maritime law, or who have liens by the fact that their claims have been recorded under either the laws of the United States or the State of Louisiana. The Lottawanna, 21 Wall. 558.

In fact it seems to be held in the case of the Lottawanna that such claims have no lien at all unless recorded. Even if recorded they must be postponed to the maritime lien.

The mortgage claim of John T. Moore & Co., which was duly recorded according to law in the office of the collector of customs at New Orleans, will, with interest, be sufficient to absorb the entire fund remaining in the registry for distribution. As John T. Moore & Co. are entitled to priority over the claims for materials, supplies, and labor furnished in the home port, and not recorded as required by the state law, these claims, represented by Amanda M. F. Simonds, original libellant, and certain intervenors, may be considered as out of the case. As the mortgage to John T. Moore & Co. was recorded long before the claim of W. G. Coyle & Co. was filed for record in the mortgage office of the parish of Orleans, the latter claim may also be considered as out of the case.

The next contention is between the mortgage claims of Swift's Iron & Steel Works and Dennis Long on the one hand, and the mortgage of John T. Moore & Co. on the other.

As already seen, the mortgage to Swift's Iron & Steel Works and to Long was recorded in the office of the United States collector of customs at Cincinnati, on February 28, 1871. The mortgage to John T. Moore & Co. was recorded in the office of the United States collector of customs in New Orleans, the home port of the vessel, on January 4, 1872. So far as priority of record is concerned the mortgage to Swift's Iron & Steel Works and Long has the advantage.

But in reply to this it is claimed by John T. Moore & Co. that as their mortgage was recorded in the custom house at the home port of the boat, and the other was not, their mortgage is the better one. This position is sustained by the act of Congress, which declares that “no bill of sale, mortgage, hypothecation, or conveyance of any vessel or any part of any vessel of the United States shall be valid against any person other than the grantor or mortgagor, his heirs and devisees, and persons having actual notice thereof, unless such bill of sale, mortgage, hypothecation, or conveyance is recorded in the office of the collector of customs where such vessel is registered or enrolled.” U. S. Revised Statutes, sec. 4192.

And in the case of White's Boat v. Aldrich, 7 Wall. 646, the supreme court in construing this law declared that “ the home port of the vessel is the port in the office of whose collector the bill of sale, mortgage, &c., should be recorded.”

So that it seems that the recording of the mortgage to Swift's Iron & Steel Works and Long, in the office of the collector of customs at Cincinnati, which was not the home port of the boat, was ineffectual as a record, and, so far as the record of these contending mortgages is concerned, that

[No. 9.

Vol. IV.]

The John T. MOORE.

of John T. Moore & Co., which was recorded in the proper office, has the advantage.

But Swift's Iron & Steel Works and Dennis Long reply to this that conceding that the mortgage to John T. Moore & Co. has the advantage in registry, yet their mortgage is valid even if it had never been recorded as against the mortgagor and against persons having actual notice thereof, and that John T. Moore & Co. had actual notice of the mortgage to Swift's Iron & Steel Works and to Long before the execution or registry of the mortgage to them.

An examination of the record upon the question of notice satisfies me that the decided preponderance of proof is in favor of the proposition that John T. Moore & Co. had notice of the mortgage to Swift's Iron & Steel Works and Long, before they took their mortgage from the owners of the John T. Moore.

Under the terms of statute and by the decisions of the courts actual notice is equivalent to notice by registry. Patterson v. De La Roude, 8 Wall. 292; Mills v. Smith, Ib. 27; Cordova v. Hood, 17 Ib. 1; King v. The Young Men's Association, 1 Woods, 386 ; Planters' Bank of Georgia v. Allard, 8 Mart. New Series, 136; Bell v. Haw, Ib. 243; Rachal v. Normand, 6 Rob. 88; Swan v. Moore, 14 La. An. 833; Smith v. Lambeth, 15 Ib. 566.

As, therefore, John T. Moore & Co. had actual notice, before the execution of the mortgage to them, of the existence of the mortgage to Swift's Iron & Steel Works and to Long, their mortgage must be postponed to the latter one.

But counsel for John T. Moore & Co. claim that the mortgage to Swift's Iron & Steel Works and Long was not acknowledged before a notary public, or other officer authorized to take acknowledgment of deeds, and that the law (Rev. Stat. sec. 4193) having declared that “no bill of sale, mortgage, hypothecation, &c., of any boat shall be recovered” unless so acknowledged, the said mortgage is ineffectual to postpone the claim of John T. Moore & Co., even though they had notice of the same.

I do not think this position can be defended. The law prescribes no formalities for the execution of a mortgage on a vessel so as to bind the mortgagor, or to postpone those having actual notice. This mortgage was for a debt contracted by her owners in the building of the vessel. The debt secured by it is confessedly just, the mortgage to secure it was executed by the owners of the boat in the presence of witnesses, and the contesting creditors, John T. Moore & Co., had notice of it. In my judgment it is binding on the mortgagors and those having notice of it without any registry. The acknowledgment before a notary is only necessary to secure registry. If the mortgagor is content to stand upon his mortgage without registry he can do so, and his mortgage is good against the mortgagor and all having actual notice. Until it is declared by law that a mortgage not acknowledged before a notary or other officer shall be void, a mortgage without such acknowledgment must be held good against the mortgagor, and those having notice.

By all the authorities, so far as the binding effect of the mortgage is concerned, subsequent incumbrancers with notice are placed on the same footing as the mortgagors themselves.

ithout se having notice effect of

Vol. IV.)

THE John T. MOORE.

[No. 9.

In my judgment, therefore, the mortgage to Swift's Iron & Steel Works and Dennis Long is entitled to precedence over the mortgage to John T. Moore & Co.

This disposes of the main controversy in the case. The point decided is this : John T. Moore & Co. have a mortgage on the vessel sufficient in amount to absorb the fund remaining in the registry of the court. This mortgage has precedence over the unrecorded claims for materials and supplies furnished in the home port and over the recorded claims for materials and supplies of Wm. G. Coyle & Co. If there were no other claims in the case, John T. Moore & Co. would be entitled to the entire fund remaining in the registry of the court. But Swift's Iron & Steel Works and Dennis Long have a mortgage ineffectually recorded, and, therefore, in effect, not recorded at all, which is older than the mortgage of John T. Moore & Co., and of which John T. Moore & Co. had notice before the date of their own mortgage.

This fact of notice gives the mortgage to Swift's Iron & Steel Works and Long precedence over the mortgage of John T. Moore & Co., and entitles it to priority of payment over all the claims ; even though, as between the mortgage to Swift's Iron & Steel Works and Long, and claims inferior to the mortgage of John T. Moore & Co., the latter would be entitled to priority if the mortgage of John T. Moore & Co. were out of the case. Brazee v. The Lancaster Bank, 14 Ohio, 318; Holliday v. Franklin Bank of Columbus, 16 Ohio, 533.

Exception has been taken to the disallowance by the master of the claims of certain watchmen. The wages of these watchmen were earned, as appears from the report of the master, while the vessel was lying-up. These wages do not therefore constitute an admiralty lien, and the master was right in rejecting their claims as liens upon the vessel. Phillips v. The Scattergood, 1 Gilpin, 17.

Exception is also taken to the report of the master because he rejected claims of certain insurance companies for premiums on certain policies of insurance taken on the John T. Moore, by her owners. I know of no law which gives a lien upon a vessel for the premium for an insurance taken on her by her owners for their own benefit. It is a contract with the owner for his own benefit. It does not aid the vessel. In case of loss, the maritime liens upon the vessel are displaced and do not follow the insurance money. The money goes to the owner for his own benefit, and not to the lien-holder who may insure his own interest. Thayer v. Goodale, 4 La. 222; Steele v. Franklin Fire Ins. Co. 17 Penn. St. 290; Turner v. Stetts, 28 Ala. 420; White v. Brown, 2 Cushing, 412; Stillwell v. Staples, 19 N. Y. 401; Stark v. Brown, 7 La. An. 342. The master was right, therefore, in deciding that the claims of the insurance company for premiums were no lien upon the vessel.

Let a decree be entered in accordance with the views above expressed.

Vol. IV.]

State v. LAPAGE.

(No. 9.

SUPERIOR COURT OF NEW HAMPSHIRE.

(To appear in 57 N. H.)

CRIMINAL LAW. — EVIDENCE. — CHARACTER OF ACCUSED. — TENDENCY

TO COMMIT CRIME CHARGED. — EVIDENCE OF OTHER CRIMINAL ACTS COMMITTED BY ACCUSED.

STATE v. LAPAGE.

The prosecution cannot attack the character of the prisoner unless he first puts that in

issue by offering evidence of his good character. The prosecution cannot show the defendant's bad character by showing particular acts. The prosecution cannot show in the prisoner a tendency or disposition to commit the

crime with which he is charged. The prosecution cannot give in evidence other criminal acts of the prisoner, unless they

are so connected by circumstances with the particular crime in issue as that the proof of one fact with its circumstances has some bearing upon the issue on trial other than such as is expressed in the foregoing three propositions.

INDICTMENT, charging the respondent with the murder of Josie A. Langmaid, who was killed October 4, 1875, about nine o'clock in the morning, while passing over the Academy road, in Pembroke, on her way to school. Her head was severed from her body and removed a distance of a quarter of a mile. Another part of her body, including one half or two thirds of the vagina, was cut out and carried away, and was never recovered. No post-mortem examination of the body was made, with a view to ascertaining whether the victim had been violated.

The government claimed that the murder was committed “in perpetrating or attempting to perpetrate rape.”

As tending to show that the prisoner had an intent to commit such a crime, and that he was making antecedent preparations therefor, the state was permitted to show, by one Clarence B. Cochran, that on October 1, about half past eight o'clock in the morning, as he was passing along the Academy road on his way to school, when he arrived within about thirty rods of the place of the murder, he saw a man jump into the bushes on the side of the road. He testified: “I only saw him pass into the bushes. He passed into the bushes, springing, as if in haste.” He did not recognize the man.

Adin G. Fowler was permitted to testify to conversations with the respondent, on September 24, 25, and 26, as follows: I was to work out in front of the house on that night (September 24] sorting potatoes. Mr. Lapage came out and took hold and helped us for a few moments; and while we were to work there my sister came home. A gentleman brought her home, and she got out of the wagon and went into the house ; and Mr. Lapage wanted to know who that was, and I told him ; and he wanted to know then if she had been to Suncook. I told him no, she had been to school. Then he wanted to know which way she went to get there, and I told him, as well as I could, how to go, and pointed out toward the academy, that way (pointing), and he said that that must be Vol. IV.]

STATE v. LAPAGE.

(No. 9.

hurt toward Where me got dodown Banda

the same way that he came when he came out to Mr. Kimball's; and that was all that was said that night. ....

The next night - Saturday night - I went to carry him part of the way home. I carried him down Buck Street as far as the house of Mr. Locke, and when we got down to Russ's corner he wanted to know then if there is where my sister went to school. I told him no, and pointed out toward the academy again, and told him two miles, or a mile and a half — I don't remember exactly, but I believe I told him a mile — " and then turn to your right and go up.” And that was all that was said that night. ....

Saturday I carried my sister on the street, and left her there at a place where she roomed. Then I went to Suncook and got Mr. Lapage, to bring him out. .... We came down Buck Street. .... When we went past there [the Academy road] I remember of telling him that that is the road my sister went on when she went to school.

Edward L. Mahair testified that he saw the respondent while he was at work for Mr. Fowler, threshing. While thus occupied, about a week before the murder, a young lady passed by. ....

When the girl passed by he was threshing in the barn, and he spoke to me and asked me where that gal was going. I told him I did n't know. Then he asked me what her name was. I told him her name was Sarah Prentice. Then he wanted to know where she lived. I told him — went to the door, and showed him as near as I could. .... Then he wanted to know who was going with her. I told him I did n't know. And that is all he said that day. .... I was up there the next day, and was going through the barn, and he stopped me, and said, “ Where did that gal go that went down by ?” I told him I did n't know whether she went into Mr. Fowler's or went farther. He wanted to know who went with her. I told him I could n't tell him; I did n't know who went with her. Then he asked me who she was and where she lived, again, and I showed him; and then the next time he asked me who went with her, I told him I did n't know. He said he wondered which road she went on the most. I told him “I guess she goes on this road the most." . .

The witness then repeated an obscene and vulgar remark and inquiry made by the respondent concerning the girl.

Hiram Towle, and Harriet A. N. Towle, his wife, testified, in substance, that on Saturday, October second, about nine o'clock A. M., they were riding over the Academy road, and when about fifty or sixty rods from the place of the murder they met the respondent carrying a stick behind him. The stick was described as being similar in all respects (about three feet long, four-sided, about one and a quarter inches square, whittled at one end for a handle) to a stick produced in court, which had been found broken, and stained with blood, near the place of the murder.

Alversia Watson testified as follows: I live in Allenstown. Have a son and two daughters ; my youngest daughter is attending school at Pembroke Academy ; did not attend school last fall, but taught in Hooksett; I go over Chester turnpike to get there ; she came home Friday nights, and went back Sundays; first part of term she walked ; I went with her — generally went about a mile and three quarters. Saw

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