Beattie v. Gardner.

Court was entered on the 22d of the succeeding month of October, and on the 4th of the next month the adjudication in bankruptcy was made in the Bankruptcy Court. The bill of the assignee in bankruptcy, under which the decision of the Supreme Court of the United States was made, was not filed until August, 1843. The bill was filed in the District Court, and that Court entered a decree in favor of the complainant. This decree the Circuit Court affirmed on appeal in November, 1844, and the decision of the Circuit Court was affirmed by the Supreme Court in 1849. The case was ably argued in that Court, and the opinion of Mr. Justice Grier appears to have had the full concurrence of all the Judges of that Court.

The lien asserted in that case was based upon proceedings in equity, and the liens asserted in this case are based upon proceedings at law. That case arose under the Act of 1841, and this under the Act of 1867. But I have not been able to discover, in the reasoning of Mr. Justice Grier, or in the somewhat different language of the two Acts, any ground for assuming that the liens insisted upon in this case are not void under the decision made in the case of Shawhan v. Wherritt. Indeed, the learned Judge of the Southern District of New York, in his well-considered opinion in the case of Black and Secor, 1 B. R., 81, applied the doctrine of Shawhan v. Wherritt, in a case where the creditor had obtained a judgment, execution and levy by the neglect of the bankrupt to file a voluntary petition in bankruptcy, and he declared that the doctrines of Shawhan v. Wherritt, held to be applicable to the Act of 1841, are much more applicable to the Act of 1867. The case of Black and Secor is, in fact, an authority in point against the defendants, and there are other cases which tend to support the same doctrine. (In re Belden, 2 B. R., 14; In re Black and Secor, 2 B. R., 65; Fitch v. Magee, 2 B. R., 164; In re Wells, 3 B. R., 95.)

In the Matter of William G. Zinn and others, Bankrupts.

The plaintiff will have a decree in accordance with this opinion.

Farnell and Brazee for plaintiff.

George Gorham for defendant.

Southern District of New York.

FEBRUARY, 1871.

IN THE MATTER OF WILLIAM G. ZINN AND OTHERS, BANKRUPTS.

APPOINTMENT OF TRUSTEE AND COMMITTEE OF CREDITORS.—
RELATIONSHIP.

The mere fact of relationship on the part of a proposed trustee, under the 43d section of the bankruptcy Act, to the bankrupt or to a creditor, or to a proposed member of the committee of creditors, or on the part of a proposed member of such committee to a creditor or to the bankrupt, cannot be regarded as a disqualification.

BLATCHFORD, J. In this case, at the first meeting of creditors, eight creditors, who had proved their claims, and whose claims amounted, in the aggregate, to $332,712 68, and to three fourths in value of the aggregate amount of all the claims proved, subscribed, under section 43 of the Act, a resolution that it was for the interest of the general body of the creditors of the

In the Matter of William G. Zinn and others, Bankrupts.

bankrupts, that the estate of the bankrupts should be wound up and settled, and distribution made among the creditors, by trustees, under the inspection and direction of a committee of the creditors, and nominating John H. Wyman as trustee, and Samuel Wyman, Junior, Henry Almy and George C. T. Seaman as the committee. Among the eight creditors are Herman D. Aldrich, to the amount of $188,866 88, who signs by the said Samuel Wyman, Junior, as his attorney; the said Samuel Wyman, Junior, to the amount of $14,985 36; the said George C. T. Seaman, to the amount of $64,942 45; and the firm of which the said Henry Almy is a member, to the amount of $4,500. The said Herman D. Aldrich is the uncle of two of the bankrupts. The wife of the said Herman D. Aldrich is the cousin of the said John H. Wyman, and the sister of the said Samuel Wyman, Junior. The said Herman D. Aldrich is now in a lunatic asylum, as a patient for his health, but has not been adjudged a lunatic by any legal proceedings, nor has any committee of his person or estate been appointed. The said Samuel Wyman, Junior, acted as the attorney for the said Herman D. Aldrich, in proving the said claim of the said Herman D. Aldrich, and in voting for said resolution, in pursuance of a power of attorney executed by said Herman D. Aldrich, in January, 1870, when he was of sound mind.

John H. Wyman, the proposed trustee, is, therefore, related, by consanguinity and affinity in the fifth degree, to Herman D. Aldrich, and in the ninth degree to the two bankrupts, who are the nephews of Herman D. Aldrich. Samuel Wyman, Jr., is related by consanguinity and affinity in the third degree, to Herman D. Aldrich, and in the seventh degree to the two bankrupts, who are the nephews of Herman D. Aldrich, and in the fourth degree to John H. Wyman.

A creditor who has proved his debt, and who did not vote for or sign the resolution, objects to its confirma

In the Matter of William G. Zinn and others, Bankrupts.

tion by the Court, on the ground of the relationships and the other facts thus stated.

The mere fact of relationship in the ninth degree, or a less degree, on the part of a proposed trustee, to a bankrupt, or to a creditor, even the largest in amount, of a bankrupt, or to a proposed member of the committee, or on the part of a proposed member of the committee, to such creditor, or to the bankrupt, cannot be regarded as a disqualification. Other facts, indeed, may concur with such relationships, to make a confirmation improper. But, in the present case, there are no such facts. The three persons named as the members of the committee are all of them creditors, the aggregate of their claims being more than $84,000. Samuel Wyman, Junior, is the attorney of the largest single creditor. The theory of the provisions of the 43d section are, that three fourths in value of the creditors who have proved their debts shall designate the trustee and the committee. The persons designated in the present case are gentlemen of high character and standing, free from all reproach. Nothing appears to indicate that they will act in the interest of the bankrupts, at the expense of the creditors. John H. Wyman and Samuel Wyman, Junior, are more nearly related to the principal creditor than they are to the bankrupts. The trustee is required, by the 43d section, to wind up and settle the estate for the equal benefit of all the creditors, and is at all times subject to the direction of the Court in executing his trust. There is nothing to warrant the suggestion, that the bankrupts procured the creditors to make these appointments, or that they are made in the interest of the bankrupts, as against the creditors.

Mr. Seaman, although a resident of New Jersey, has a place of business in the city of New York, which he frequents daily.

The questions raised in regard to the power of attorney from Herman D. Aldrich to Samuel Wyman, Junior,

The Steamship Bellona.

and to the insanity of Herman D. Aldrich, I do not consider, for the reason, that, if the claim of Herman D. Aldrich be stricken out from the signatures to the resolution, it must likewise be stricken out from the debts proved, and there would thus still be signatures to the resolution, of creditors to three fourths in value of the debts proved. Notwithstanding the appointment of a trustee and the assignment of the estate to him, the claim of any creditor may be investigated under section 22, and the bankrupt and other persons may be examined under section 26.

The resolution passed by the creditors will be confirmed when the Register shall have signed the proper certificate under Form No. 63.

J. S. L. Cummins, for the resolution.

A. C. Fransioli, for the opposing creditor.

FEBRUARY, 1871.

THE STEAMSHIP BELLONA.

DELIVERY OF CARGO.-BILL OF LADING.-EXCEPTION.

Raisins were shipped on a vessel, under a bill of lading which contained a clause exempting the vessel from damage caused by "any act, neglect, or default of the pilot, master, or mariners," or from damage "resulting from stowage or contact with other goods, for leakage, breakage, damage caused by heavy weather, or pitching or rolling of the vessel, or defective packages," or for damage “arising through insufficiency of strength of packages." Part of the raisins came out in bad order, the tops and bottoms of the boxes being crushed by other cargo. They were re-coopered before being delivered. In each box were layers