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Edward L. Ungewitter v. William von Sachs, Assignee in Bankruptcy.

ing to other persons, and also signed and delivered to Bowdoin, Larocque & Barlow a written order on the bank, requesting them to deliver to Bowdoin, Larocque & Barlow the 85 shares of stock and certain other specified securities. The 85 shares of stock were not delivered up by the bank and were not replaced or repurchased. Bowdoin, Larocque & Barlow applied to the bank, and offered to redeem such stock, a few days after the failure of Schepeler & Co., and to pay the highest market price for it, but the offer was refused. The offer was renewed a week or two later, and refused again. The securities so placed in the hands of Bowdoin, Larocque & Barlow having been sold, there remained in their hands, of the proceeds, after deducting what was expended in the redemption of the other securities which were to be redeemed, a sum of money which, with interest to the 11th of November, 1869, amounted, on that day, to $11,981 99. That sum was, on that day, deposited by Bowdoin, Larocque & Barlow in the New York Life Insurance and Trust Company, to their own credit, payable after ten days' notice, with interest at 4 per cent. per annum, and they received therefor a certificate of deposit, which they hold, subject to the decree of this Court as to who is entitled to the money which it represents.

The claim of the plaintiff is, that the money in the hands of Bowdoin, Larocque & Barlow represents the 85 shares of stock, and that the proportion of it which represents 56 shares ought to be paid to him, and ought not to go to the assignee in bankruptcy.

However great a breach of trust was committed by Schepeler & Co. towards the plaintiff, yet, on the facts of the case, Schepeler & Co., when they became insolyent, were merely debtors to the plaintiff for the value of the 56 shares of stock, as against their other creditors, now represented by the assignee in bankruptcy, and as respected the rights of such other creditors, under the bankruptcy Act. The securities themselves, whose

Edward L. Ungewitter v. William von Sachs, Assignee in Bankruptcy.

sale has resulted in the proceeds in question, never belonged to the plaintiff, and, so far as appears, were not, prior to the time when the rights of the assignee in bankruptcy intervened, put into the hands of the plaintiff, or of any agent of his, or of any person with his assent or privity, nor was the placing of such securities in the hands of Bowdoin, Larocque & Barlow made known to the plaintiff, or adopted or ratified by him, prior to the transfer of the title to them to the assignee in bankruptcy. The property in them was in no manner changed, nor did any legal or equitable lien, or interest, or trust, or charge, arise in respect to them, which would not have been revocable by Schepeler & Co. themselves, at least, at all times before the transaction was made known to the plaintiff. It was not made known to the plaintiff, or to any agent of his, until some time after the appointment of the assignee in bankruptcy. Such appointment must, on the facts, be considered as a revocation of anything done by Schepeler & Co., if any such revocation were needed.

Moreover, the delivery of the securities having been made for a specified purpose, and the purpose not having been carried out, because of the refusal of the bank to deliver the shares, the property in the securities remained in Schepeler & Co., and passed to the assignee in bankruptcy, free and clear from any charges in favor of the plaintiff.

Independently, however, of these views, the Court is in fact asked to do, in favor of the plaintiff, what the bankruptcy Act expressly forbids. It is asked to give to the plaintiff, as a creditor, a preference. If Schepeler & Co. had given directly to the plaintiff himself, the securities which they placed in the hands of Bowdoin, Larocque & Barlow, they being then insolvent, or acting in contemplation of insolvency, and intending to prefer the plaintiff, and he having the knowledge which Bowdoin, Larocque & Barlow had, the transaction

The Steamboat Mount Washington.

would have been a fraud on the Act and void, and the assignee could have recovered back the securities, or their value, from the plaintiff.

The bill must be dismissed, with costs,

B. Roelker, for the plaintiff.

T. C. T. Buckley, and J. K. Hill, for the assignee in bankruptcy.

W. W. McFarland, for Bowdoin, Larocque & Barlow.

MAY, 1870.

THE STEAMBOAT MOUNT WASHINGTON.

COLLISION ON HUDSON RIVER.-SCHOONER AND STEAMBOAT.

A steamboat, with a heavy tow at the end of a hawser, was going slowly up the Hudson river, close along the west shore, when a collision occurred between a boat on the port side in the tow, and a schooner. The schooner was scarcely doing more than drifting down with the tide, as the wind was very light. The steamboat, just before the collision, took a rank sheer to the east, and, when the schooner was just off her port bow, stopped her engine: Held, That it was the duty of the steamboat to keep out of the way of the schooner, and she must show that her failure to do so arose from no fault on her part.

That the sheer of the steamboat was not justifiable, and she should have stopped and backed sooner.

BLATCHFORD, J. This is a libel for a collision which occurred about 8 o'clock A. M. on the 1st of August, 1867, between the schooner Annie, owned by the libellant, and a canal-boat in tow of the steamboat Mount Wash

The Steamboat Mount Washington.

ington, a short distance below the upper end of Wagner's Island, in the Hudson river. The schooner was bound down the river. The steamboat was going up close along the west shore, off Wagner's Island, having seventeen boats in tow-one on each side of her and fifteen on a hawser, astern, in three tiers of four each, and an extreme stern tier of three. The tide was ebb. There is a dispute as to how the wind was, but there is no doubt it was very light. The schooner was scarcely doing more than drifting with the tide. The speed of the steamboat was very small, as her tow was heavy. The port bow of the schooner struck the port bow of the extreme port boat, of the four boats in the first tier behind the steamboat, and the schooner swung around, so that her port side lay against the bows of the boats in that tier. She was finally shoved out, and claims to recover $200 for the damages she sustained and for loss of her time.

It was the duty of the steamboat to keep out of the way of the schooner, and she must show that she failed to do so through no fault on her part. This she has not, on the whole evidence, satisfactorily done. It is admitted, that, just before the collision, the steamboat took a rank sheer to the eastward, by putting her helm hard a-port, and that she and the boat on her port side went clear of the schooner, on the port side of the schooner. I am not satisfied that this sheer was justifiable, or that there was anything in the position or movements of the schooner, to call for it. The steamboat, on her own showing, was very close to the west shore, and it was not reasonable for her to suppose that the schooner would attempt to pass between her and the west shore. It was on that supposition alone that she acted, in porting where she did. Moreover, I think the steamboat did not soon enough stop and back. Her master says, that, when the schooner was nearly an eighth of a mile off, he thought she was

The Propeller Olive Baker.

going in to the westward of him, and that he, at that distance, hailed the schooner not to do so, but without effect. Yet he says, that he did not slow or stop his engine till after he had put his wheel hard a-port, and that, when he stopped his engine, the schooner was just off his port bow. I think, on the evidence, that, if the steamboat had not ported at all, and, certainly, if she had stopped and backed, when she hailed the schooner, there would have been no collision.

There must be a decree for the libellant, with costs, with a reference to ascertain the damages sustained by the libellant.

R. D. Benedict, for the libellant.

Beebe, Donohue & Cooke, for the claimant.

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A barge, while under tow, lashed to the side of a tug, was injured by a collision with a vessel lying at a dock. On the part of the tug, it was claimed, that the collision was caused by the slackening of the bow line between the barge and the tug, by some one in charge of the barge, against the will of the master of the tug, whereby the tug had not full control of the barge; that another tug, passing close by the tow, raised a swell, which, with the tide, gave the barge a sheer towards the dock, which the tug was not able to check, owing to the slackening of the bow line; and that the collision was caused by inevitable accident: Held, that, as the tug had acquiesced in the slackening of the bow line, she became responsible for whatever consequences resulted from that arrangement.

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