The Steam-tug D. S. Stetson.

tween Shooter's Island and Staten Island, with the wind as it was, and that, at the time of the collision and for some time before, she was laying her course north northwest or thereabouts, for the buoy at the corner stake, around which she would have to pass. The defence set up in the answer, on the part of the tug, is, that the schooner, after rounding Shooter's Island, kept to the southward, to avoid a pile of stones which ran out from that island, “and then headed up again to the northward," and then "suddenly sheered again to starboard and then again to port; that she thus made several changes in her course, during which time the steamer gave several single whistles, keeping her course, till the master of said steamer, fearing a collision, stopped his engine, but the schooner again sheered to port and ran across the steamer's bow, when the barge struck her."

The tug is prima facie liable for the collision, and is to make out this defence by proof. She has not done so, in my judgment. On the contrary, the weight of the evidence is, that the schooner made no changes in her course, except such as were proper and necessary, with the wind as it was, in the channel she was in. Those changes being a part of the proper navigation of the schooner, were changes which the persons in charge of the tug were bound to know the schooner would make, and it was their duty to be prepared for them. On the evidence, the last of those changes was to a course about north northwest, and which would carry the schooner direct to the buoy, and was made at a sufficient distance off from the tug to have enabled the latter, with ordinary care, to have avoided the schooner. The pilot of the tug is shown, from his language at the time of the collision, to have acted on the idea that it was the duty of the schooner to keep out of the way of the tug. The fact that the schooner kept her course after she got upon it for the buoy some time before the collision, and down to the time of the collision, is not only shown by the

Crossley v. The Steam-tug Louis, et al.

witnesses who were on the schooner, but by two witnesses who were on the shore on Staten Island and unconnected with the schooner.

There must be a decree for the libellants, with costs, with a reference to a Commissioner to ascertain the damages.

C. Donohue and W. J. Haskett, for the libellants.

Emerson, Goodrich & Wheeler and R. D. Benedict, for the claimants.

FEBRUARY, 1871.

EMILY CROSSLEY, ADMINISTRATRIX, &c., OF

JOHN J. CROSSLEY v. THE

STEAM-TUG

LOUIS, AND FRANCIS L. JOHNSON, et al.

POSSESSION.-RELEASE.

Two parties, J. and C., were interested in the building of a steam-tug, but the
vessel was enrolled in the name of C. alone, and was run for their joint benefit.
C. died, and a suit was brought by J., against the administratrix of C., to have
a receiver of the boat appoint d, and the boat sold and the accounts adjusted.
That suit was settled by the payment by J., to the administratrix, of a sum of
money, on the receipt of which she executed to J. a general release of all claims
and demands which C. had against J. in connection with the boat. Afterwards,
the administratrix brought this possessory action, to recover the boat:
Held, That the burden of proof was on the libellant, to show that she did not un-
derstand the transaction in which she gave the general release.

That the libellant had failed to establish that fact, and was, therefore, not entitled
to the possession of the boat.

This was an action of possession brought by the libellant to recover possession of the steam-tug Louis. The

Crossley v. The Steam-tug Louis, et al.

libel alleged that the libellant had been duly appointed administratrix of the estate of John J. Crossley; that the boat was enrolled in the name of Crossley; and that she, as his administratrix, was entitled to the possession of the boat.

The answer of Francis L. Johnson and others set up that the boat was built under an agreement between Crossley and Johnson, by which Crossley was to be interested in the proportion of one fourth and Johnson in the proportion of three fourths; that she was enrolled in Crossley's name, and was run for the benefit of both parties; that, after the death of Crossley, Johnson commenced a suit against the libellant, as administratrix of Crossley, to have a receiver of the boat appointed and the boat sold, and the accounts adjusted; that that suit was settled by the payment to the libellant of the sum of $1,000; and that the libellant executed to Johnson a general release, under seal, releasing him from all claims which Crossley had against him by reason of their connection with the boat. The libellant gave evidence tending to show that she had not properly understood the contents of the release signed by her.

For libellant, T. D. Adams.

For claimants, Benedict & Boardman.

BLATCHFORD, J. Although the Louis was enrolled and registered in the name of Crossley as her owner, yet the proofs show that she was held by him in trust for himself and the respondent Johnson, subject to the adjustment of accounts between them in reference to the expense of building and running her; that Crossley superintended her running; that she was run for the benefit of Crossley and Johnson, in the proportion of three fourths of her net earnings to Johnson, and one fourth to Crossley; that, after Crossley's death, Johnson

Crossley v. The Steam-tug Louis, et al.

brought a suit against the libellant, as administratrix of Crossley, to have a receiver of the boat appointed, and the boat sold, and the accounts between Johnson and the estate of Crossley in reference to the building and running of the boat adjusted; that that suit was settled, after an examination of the accounts by the counsel for the libellant, by the payment by Johnson to the libellant, of the sum of $1,000; and that thereupon the libellant executed and delivered to Johnson a general release under seal, releasing him, also, especially, from all claims and demands which Crossley had, at the time of his death, against Johnson, "growing out of any connection he had, in his lifetime, with the said Johnson, with the steam propeller Louis or any other vessel." The burden of proof is on the libellant, on these facts, to show that she did not understand the transaction or understand why she was receiving the $1,000. The matter appears to have been conducted with care and deliberation by the counsel on both sides, both in respect to an investigation of the subject-matter of the controversy and in respect to the preparation of the settlement papers. Mrs. Crossley admits that she executed the release, but says that she did not know its contents, and that her counsel did not tell her what the $1,000 was paid to her for. This testimony is contradicted by her counsel, who testifies that he told her the $1,000 was to settle the suit brought by Johnson, and that Johnson's counsel required a general release, and that she knew what the release was given for. In addition to this, it is shown that she took to the office of her counsel, before the suit was brought by Johnson, the books of her husband, which she had found, relative to his transactions with Johnson, that her counsel examined them, and that, at the time she received from her counsel so much of the $1,000 as she did receive, she took away from his office such books. The libellant has, therefore, failed to make out that she is entitled to the possession of the tug, as against the re

In the Matter of Ezra M. Stevens, a Bankrupt.

spondents, or to a decree against them for her earnings while in their possession, which is the prayer of her libel.

The libel is dismissed, with costs.

FEBRUARY, 1871.

IN THE MATTER OF EZRA M. STEVENS, A BANKRUPT.

VOTING FOR ASSIGNEE.-POSTPONING PROOF OF DEBT.-PREFERENCE.

JUDGMENT.

The power of a register to postpone the proof of a debt until an assignee has been chosen, includes the case where a doubt arises as to the validity of a claim by reason of the receipt of a preference by the creditor, contrary to the provisions of the bankruptcy Act.

Taking property on attachment or execution is receiving a preference, but merely recovering judgment is not.

It is not necessary for creditors, who have recovered judgment against a bankrupt after the adjudication, to vacate their judgments, in order to prove the claims on which the judgments were recovered.

At the first meeting of creditors in this case, the bankrupt's attorney moved to suspend the proof of certain claims until the appointment of an assignee, on the ground that the creditors holding such claims had obtained preferences over other creditors; and, in support of the motion, he read affidavits that certain of the creditors in question, having reason to believe that the bankrupt was insolvent, sued out attachments against his property and attached it, and entered up judgments against the bankrupt, after the filing of the petition in bankruptcy, and that other of the creditors had recov

BT. VOL. IV.-33