Sedgwick v. Casey.

This plea of the statute of limitations is evidently supposed to be warranted by the second section of the bankruptcy Act, which provides, that no suit at law or in equity shall, in any case, be maintainable by an assignee in bankruptcy, against any person claiming an adverse interest touching any property or rights of property of the bankrupt, transferable to or vested in such assignee, in any Court whatsoever, unless the same shall be brought within two years from the time the cause of action accrued to the assignee. This suit does not fall within that provision. It is a suit merely to collect a debt or enforce the payment of money due on a contract. The plaintiff does not claim an interest adverse to the defendant in or touching any property or right of property of the bankrupts, transferable to or vested in the plaintiff as their assignee, nor does the defendant claim any interest adverse to the plaintiff, in or touching any such property, or right of property. The defendant claims no ownership of, or title to, the debt or contract which the plaintiff is seeking to enforce against the defendant. Nor does the plaintiff' claim any ownership of, or title to, any specific property or right of property, as having passed to him by virtue of his appointment, which the defendant also claims to own. Nor does the defendant claim any ownership of, or title to, any specific property which belonged to the bankrupts. The limitation of two years applies only to such controversies. Moreover, it applies to controversies of which, by the same second section, the Circuit Court of the District has concurrent jurisdiction with the District Court of the same District. The Circuit Court of this District would have no jurisdiction of this suit.

The plea is overruled, with costs, and the defendant is allowed to answer the bill within twenty days.

T. M. North, for the plaintiff.

A. R. Dyett and G. A. Seixas, for the defendant.

Kohlsaat v. Hoguet.

JANUARY, 1871.

JOHN C. KOHLSAAT vs. HENRY L. HOGUET et al.

INSOLVENCY.-PREFERENCE.-REQUISITES TO MAKE A TRANSACTION

VOID.

In order to render a transaction between an insolvent and one of his creditors void, if challenged by the assignee in bankruptcy in due time, six elements must co-exist: On the part of the debtor, insolvency, an intent to give a preference, and doing or suffering the thing which works the preference; and, on the part of the creditor, the receiving or being benefitted by such thing, the having reasonable cause to believe the insolvency of the debtor, and the having reasonable cause to believe that a preference is intended.

BLATCHFORD, J. This case comes directly within the decision of this Court in the case of In re Black, (2 Benedict, 196.) The debtor, when insolvent, suffered his property to be taken on legal process on behalf of the defendants, as creditors of his, with the intent to give them a preference, and the defendants had, at the time, reasonable cause to believe that he was insolvent, and that the transaction was in fraud of the provisions of the bankruptcy Act, and the transaction took place within four months before the filing of the petition in bankruptcy. It was a fraud on the Act, for the debtor to give, and for the defendants to take, the preference, with the intent on the part of the debtor that it should be a preference, the debtor being insolvent, and the defendants having reasonable cause to believe so, and reasonable cause to believe that the debtor intended the preference. The insolvency, the intent to give the

Kohlsaat v. Hoguet.

preference, and the doing or suffering the thing which works the preference, are the elements on the part of the debtor. The elements on the part of the creditor are, the receiving or being benefitted by such thing, the having reasonable cause to believe the insolvency of the debtor, and the having reasonable cause to believe that a preference is intended. These six elements must coexist, but nothing else is necessary to make the transaction void, if challenged by the assignee in bankruptcy in due time.

In this case, the defendants obtained the money which they realized through the legal process, intending to keep it at all events, and intending to keep it as a preference, if it should be a preference, knowing that it must be a preference, if the debtor should fail to induce the rest of his creditors to take a compromise of fifty cents on the dollar.

The bill alleges sufficient facts to show that the debtor suffered his property to be taken, within the meaning of the Act.

There must be a decree for the plaintiff, for the amount received by the defendants, with costs.

G. A. Seixas, for the plaintiff.

A. Blumensteil, for the defendant.

The Steamboat Transit.

FEBRUARY, 1871.

THE STEAMBOAT TRANSIT.

LIEN.-CREDIT OF VESSEL.

Coal was furnished by B. to a steamboat, on the procurement of her master. B. billed the coal to the vessel and owners. The vessel was owned within the State of New York. She was under charter to a person residing out of that State, but this fact was not known to B. till after the coal was furnished. No circumstances existed, to the knowledge or belief of B., showing a necessity for a credit to the vessel.

Held, That the credit was not given to the vessel, and that there was no lien upon her for the coal.

This was a libel by Albert R. Bass, to recover the value of a quantity of coal, furnished by him to the Transit, a steamboat owned in New York, but chartered to a person residing out of that State.

W. R. Beebe, for the libellant.

W. J. Haskett, for the claimant.

BLATCHFORD, J. In this case, the libel must be dismissed, with costs. The credit was not given to the vessel. No circumstances existed, to the knowledge or belief of the furnisher of the supplies, showing any necessity for a credit to the vessel. The furnisher had no information, until after the supplies were furnished, that the vessel was under charter to a person residing out of the State of New York. The fact that, in this case, the libellant billed the coal to the vessel and owners, makes no difference, nor does it

The Steamboat City of Hartford and The Steamtug Unit.

make any difference that the master had to do with procuring the coal. There may be, in both cases, a good claim against the owners of the vessel, her charterer, and her master, in personam, but there is no lien on the vessel, which can be enforced in admiralty. The difficulty is, that credit was not, in fact, given to the vessel.

FEBRUARY, 1871.

THE STEAMBOAT CITY OF HARTFORD AND THE STEAMTUG UNIT.

COLLISION IN EAST RIVER.-STEAMBOAT AND TUG CROSSING.WHISTLES.

A collision occurred in daylight in the East river, between a steamboat and a schooner, which, with another schooner, was in tow alongside of a tug, by which the schooner was sunk. The tow was bound up the East river, and the steamboat was bound down, and their courses were crossing, the tug having the steamboat on her starboard side. When the steamboat saw the tug, she blew one whistle, and without waiting for a reply, ported her helm, and got a sheer to starboard, but this whistle was not heard on the tug. The tug then blew two whistles, and the steamboat replied to them by also blowing two whistles. Both vessels then starboarded. The tug, seeing that a collision was impending, stopped and reversed, which turned the head of the tow to starboard, and the steamboat, which had also stopped and reversed, struck the port bow of the schooner which was lashed on the port side of the tug. Both vessels were running much nearer the Brooklyn side of the river:

Held, That, as the vessels were crossing, it was the duty of the steamboat to have kept her course.

That, as the tug had not heard the single whistle of the steamboat, she had the right to give the signal of two whistles, as she did, and was not then called on to stop.

That, when the steamboat heard the two whistles of the tug, there was to her a confusion of signals, calling upon her at once to stop and reverse, unless she were certain that she could, by starboarding, avoid the tug.