The Steamer Metis.

course, and had run across the bows of the Metis, at a time when otherwise the schooner would have gone clear, to the southward of the Metis. But the fact was, that the Metis actually ran across the course of the schooner, from north to south, and then, as the result of her starboarding, ran into the port side of the schooner. If she had starboarded earlier, or had not starboarded at all, when she did starboard, there would probably have been no collision. In the former case, she would have passed to the northward, and in the latter case to the southward, of the schooner.

The evidence is satisfactory, that the schooner had her proper lights set and burning. Even if she had no red light burning, as is claimed by the Metis, the absence of it could not have contributed to the collision. She kept her course at all times from the time she sighted the Metis, and she had a proper and competent lookout, who saw and reported the lights of the Metis at some two miles' distance. It being the duty of the Metis to avoid the schooner, it is for her to establish a change of course by the schooner. As the change claimed is one that would have brought the schooner's head to about northwest, the Metis running east by north half north, and the wind being east, it follows that, if the schooner had ported to make such change, both of her booms would have gone to port, and her jibs would have filled to port. But the evidence is satisfactory, that, up to the actual blow, her main boom was off to starboard, and her fore boom to port, and her jibs were hanging amidships, not filled.

There was no fault on the part of the schooner, and the Metis was solely in fault in the collision. There must be a decree pronouncing her liable for the damages caused to the libellants thereby, with costs, and ordering a reference to ascertain such damages.

E. H. Owen and R. D. Benedict, for the libellants.

J. H. Choate, for the claimants.

In the Matter of Benjamin H. Loder, a Bankrupt.

APRIL, 1870.

IN THE MATTER OF BENJAMIN H. LODER, A

BANKRUPT.

PROOF OF Debt-Promissory Note.

A proof of debt, founded on a promissory note, is defective if it does not set forth the consideration of the note, and whether any payments have been made on

it.

The register, to whom a proceeding in bankruptcy has been referred, is not bound to file a deposition for proof of debt, taken and certified to before another register, which does not appear to him to be in conformity with law; but, if an issue of law or fact arises thereupon, he should adjourn it into Court, under § 4 of the Bankruptcy Act.

In this case, the register certified two questions to the Court. A deposition for a proof of debt was transmitted to him by another register. The debt was a promissory note, but the consideration of the note was not stated in the deposition, nor was it stated whether any, and, if any, what payments on it had been made. The register considered the deposition defective, and returned it for amendment. The creditor claimed that the register was bound to receive the deposition and file it, of course, and he also insisted that the deposition was sufficient, under the 22d section of the Bankruptcy Act. The register thereupon certified to the Court the two following questions: 1. Was the deposition sufficient, without setting forth the consideration of the note, and without stating whether any, and, if any, what payments on it had been made? 2. Is the register, to whom the matter has been referred, bound to receive and file a deposition for proof of debt, taken and certified before another register, whether the same shall appear to him to be in conformity with the law or otherwise?

In the Matter of Adolph B. Herrman and Herman Herrman.

BLATCHFORD, J. The first question is answered in the negative.

The second question is answered in the negative. The register, acting as the Court, is, under § 22, to reject all claims not duly proved, but, if an issue of law or of fact is raised and contested thereon by any party to the proceedings, the course prescribed by § 4, in regard to adjourning the question into Court for decision by the Judge, must be pursued.

APRIL, 1870.

IN THE MATTER OF ADOLPH B. HERRMAN AND HERMAN HERRMAN.

PROOF OF DEBT.-POSTPONED CLAIM.

A proof of a claim, which has been postponed by the register until after the clection of an assignee, is then to be treated as if it had not been tendered before the election of the assignee.

In this case, the register, at the first meeting of creditors, postponed certain claims till after the election of the assignee. After the election the proofs were again presented. The question arose how such proofs should be treated, and the register certified it to the Court.

BLATCHFORD, J. The proof of claim, when now tendered, is to be treated, in all respects, as if it had not been tendered before the election of assignee and postponed.

The Ship E. C. Scranton.

APRIL, 1870.

THE SHIP E. C. SCRANTON.

PRACTICE IN ADMIRALTY.-EXCEPTIONS TO COMMISSIONER'S REPORT.

The propriety of the action of a commissioner, to whom it has been referred to ascertain the damages in a collision case, in refusing to allow a person to be sworn to contradict testimony previously given, cannot be raised by an exception to the report, but must be raised by an application to the Court before the report is made.

This case came up on an exception to the report of a commissioner, to whom it was referred to ascertain and compute the damages in a case of collision.

BLATCHFORD, J. The exception is disallowed. The question of the propriety of the action of the commissioner, in refusing to allow a person to be sworn to contradict testimony previously given, cannot be raised by an exception to the report of the commissioner. It ought to have been raised by an application to the Court, before the report was made, to direct the commissioner to allow the person to be sworn. (The Columbus, Abbott's Adm. Rep., 37; Tyler v. Simmons, 6 Paige, 127; Schwarz v. Sears, Walker's Chy. Rep., 19; Ward v. Jewett, Id., 45; Troy Iron and Nail Factory v. Corning, 6 Blatchf. C. C. R., 328, 333.

The Ship Shakspeare.

Eastern District of New York.

APRIL, 1870.

THE SHIP SHAKSPEARE.

COLLISION OFF BARNEGAT.-SAILING VESSELS.-PORTING IN IGnorance. -CHANGE OF COURSE IN EXTREMIS.-LOOKOUT.-LIGHTS.

The schooner A. was off Barnegat, closehauled on her starboard tack, heading southwest by south. The ship S. was free on her port tack, heading northeast by north, a little to the windward of the schooner. She ported her helm. The schooner starboarded hers, and the vessels came together nearly at right angles, the ship striking the schooner on the starboard side. The night was not very dark. The lights of the ship were placed abaft her mizen rigging, so as to be obscured from a vessel approaching ahead:

Held, That the real cause of the collision was a negligent lookout on the ship, and the wrongful porting of her helm in a moment of alarm, before the course of the schooner was known;

That the starboarding of the schooner's helm was a movement in extremis, and was not a fault;

That the position of the ship's lights was faulty;

That it was not a fault in the schooner to have her chief mate on the lookout, it being his watch at the time.

These were libels filed by the owners and the master of the schooner Adelaide, to recover the damages occasioned by a collision between her and the ship Shakspeare, which occurred on the night of January 4, 1870, off Barnegat. The libellants alleged that the schooner was going down the coast, with the wind west or west by south, closehauled and heading southwest by south; that the ship was seen coming up the coast with a free wind, and heading northeast by north, but to the right of the schooner, and soon after she was seen she began to change her course more to the eastward; that the