The Bark Vivid. the original protest, but is simply a paper purporting to be a copy of a protest, and it is not accompanied with any proof of its correctness as a copy. Upon this question of evidence, I remark that, because of the great distinction which prevails between the description of causes which come under the cognizance of the courts of admiralty and those of the common law (Dr. Lushington, in deciding the case of The Peerless, 1 Lush. 41), the strict rules of evidence, applied in the courts of common law, often lose much of their force when invoked in a court of admiralty. Courts of admiralty are courts requiring dispatch, and the questions of fact brought before them often arise out of occurrences transpiring upon the sea, where time and opportunity of record are often wanting, where ledgers and letter-books are not kept, and where the living witnesses present are likely to be as floating and as unstable as the element itself on which they live; and often the transaction in question has taken place in a foreign or out-of-the-way place, in the presence of strange laws and customs, and among ignorant and sometimes barbarous men. It is, therefore, no uncommon thing for these courts, in cases where justice will be advanced thereby, to receive some descriptions of testimony never admitted in other courtswhich can the more safely be permitted in these courts, because the whole case is before a single judge, supposed to be able to weigh with care and deliberation all portions of the evidence, and to determine the true significance of the attending and corroborating circumstances, and because, in admiralty, the first decision of the questions of fact is never conclusive, but is always subject to review, in the light of additional and explanatory testimony, which may be produced in the appellate court. Although questions of evidence rarely appear in the decisions of admiralty courts, illustrations of this feature of admiralty procedure are not wanting among the decided cases. The case of the Peerless, above re The Bark Vivid. ferred to, is one where Dr. Lushington speaks of courts of admiralty as admitting in evidence "affidavits sworn almost in every way-before justices of the peace, commissioners of clearances, &c., &c., even evidence not on oath, as where, according to the custom of some of the States in the north of Europe, the original evidence was not taken on oath, but the person giving it undertook to make oath afterwards, if required." The case of the Estrella (4 Wheat. 306), where hearsay testimony was admitted as such, is another illustration; so, also, the case of the Heligoland (Swabey, 496), where the execution of a bottomry bond was held proved, on simply the seal of the consul. Likewise, the case of the London Merchant (3 Hagg, 396), where a copy of an entry of a protest before a notary-the protest not having been sworn to or extended-was admitted on the certificate of the notary that it was a true copy. The copy protest offered in evidence here appears to me admissible, as within the spirit of the cases above cited. For, on its face, it appears to be a veritable copy of a protest, and there is no adequate motive to induce the fabrication of such a document, nor is a fabrication suggested. Moreover, it is in proof that a protest was made at the time and place where this copy purports to have been made, and that it was there signed by the mate of the vessel; and, more than all, that same mate was before me as a witness on the stand, called by the claimant, and could have disputed the verity of this copy protest, but he was not asked in relation thereto. In view of this latter circumstance, 1 am justified in considering the copy produced to be correct, and I admit it in evidence, leaving the party objecting to show its incorrectness, by a commission to Ponce, or otherwise, if so advised. Copy surveys were likewise sought to be read in evidence, but they stand upon a different ground. They do not purport to be made by any one connected with the vessel, and no witness able to prove or to dispute In the Matter of Julius Klancke, a Bankrupt. their correctness, as copies, has been called as a witness, or shown to be within the reach of the claimants. Besides, it has been adjudged that surveys are not evidence of the facts stated therein. (Watson v. Ins. Co. of North America, 2 W. C. C. 152; Cort v. Delaware Ins. Co. 2 W. C. C. 375.) I therefore reject the copy surveys; but, upon the protest, and other evidence in the cause, as before stated, I adjudge the libellants entitled to recover. Let decrees be entered accordingly, the form to be settled before me on notice. OCTOBER, 1870. IN THE MATTER OF JULIUS KLANCKE, A BANKRUPT. PRIORITIES.--ATTACHMENT.-Levy. The personal property of K. was seized by a sheriff, under an attachment issued from a State Court. Thereafter other suits were commenced, in which judg ments were obtained, and executions issued and delivered to the same sheriff. K. then filed his petition in bankruptcy, and the property was sold by consent of parties, without prejudice to the rights of the several creditors. The judgment creditors moved for an order, directing the judgments to be paid in full, claiming that by virtue of the bankruptcy Act, the attachment was discharged, and as there had been levys under their executions, before the filing of the petition, the lien of the executions was preserved. Held, That the intention of the Act, was not to improve the condition of any creditor, or to create new rights. That the levy on property, already subject to an attachment to its full value, gave the judgment creditors no security, and that the motion must be denied. BENEDICT, J. On the 6th of November, 1869, the personal property of Julius Klancke, was seized by the In the Matter of Julius Klancke, a Bankrupt. sheriff, by virtue of an attachment issued under the Laws of the State of New York. After the levy of the attachment, two suits were commenced in the Marine Court of the city of New York, against the bankrupt, in which judgments were obtained, and executions issued and delivered to the sheriff. After such levy, the debtor filed his petition in bankruptcy, under which he has been declared bankrupt, and his property having been converted into money by the trustee, is now in his hands for distribution. The gross amount of the estate is $1,668 87, without deducting expenses. The amount of the judgments, in the Marine Court, is $1,037 88. The amount of the prior attachment was $2,710 75. The estate having been converted into cash, by consent of parties, without prejudice to the rights of the judgment creditors and the attaching creditor, and subject to the order of the Court, the judgment creditors now move for an order, directing the payment of the judgments in full, in preference to any other creditors, upon the ground that, by the bankruptcy Act, the attachment was discharged, and there having been a bona fide levy under the executions, before the filing of the petition, the lien of the executions is saved by the Act, and the judgment creditors are accordingly entitled to be paid in full. I cannot assent to this view of the effect of the bankruptcy Act, in a case like the present. The provisions of the Act for preserving existing securities, certainly do not indicate any intention to improve the condition of any creditor, or create new rights. The most that could be said, is what was said in earlier cases, arising under the Act, namely that any right of priority, lawfully acquired by a judgment creditor, by a valid levy made prior to the filing of the petition in bankruptcy, would be preserved in proceedings under the Act. In the present case, all the right which the judgment creditor had In the Matter of Lewis B. Loder, a Bankrupt. acquired, was by a levy on property already subject to an attachment, to its full value. Such a levy gave the judgment creditor no security, and does not entitle him to apply to this Court for a payment of his judgment in full, out of the proceeds of the estate. In this view of the law, it is unnecessary to consider the effect of the evidence relied upon, to show that the insolvency of the bankrupt was known to the judgment creditor, at the time of obtaining his judgment. My determination is based upon the assumption, that the prior attachment was a bona fide proceeding, instituted in good faith, to collect a debt due. OCTOBER, 1870. IN THE MATTER OF LEWIS B. LODER, A DISCHARGE.-PRINCIPAL DEBTOR.-ENDORSer. Where the discharge of a bankrupt was opposed by creditors, holding notes of a third party endorsed by the bankrupt, on the ground that his discharge was not assented to by a majority of his creditors, under the 38d section of the bankruptcy Act, as amended by the Act of July 27, 1867: Held, That the bankrupt was not a " principal debtor" to such creditors within the meaning of the Act, and that, as the discharge of the bankrupt was assented to by a majority of his creditors, in number and value, excluding the holders of such endorsements, he was entitled to his discharge. BENEDICT, J. Lewis B. Loder, a bankrupt, moves for his discharge, under the provisions of the bankruptcy Act. The discharge is opposed by certain of his creditors, who constitute a majority in number and value of the creditors who have proved claims, and who |