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entitled to the possession of the boat. conform to the facts. Cushing v.
The Louis,


3. The propriety of the action of a Com-
See PRACTICE (Admiralty), 5.

missioner, to whom it has been referred
to ascertain the damages in a collision

case, in refusing to allow a person to

be sworn to contradict evidence previ.

ously given, cannot be raised by an

exception to the report, but must be
raised by an application to the Court

The E. C.
1. A libel was filed against the steamer

before the report is made.

Bristol to recover damages for a col-
lision between her and the bark

The Transit,

George S. Brown. The owners of 4. Where exception is taken to the
the Bristol filed a cross-libel against method adopted by a commissioner in
the bark to recover the damages sus- ascertaining the damages, either the
tained by the steamer, and moved,

report or the exception should show
on notice to the proctors for the libel- what such method was, or the excep-
lant in the suit against the steamer, tion will be unavailing. The Transit,
to stay proceedings in that suit until

security was given on the cross-libel.
No process had been issued on the 5. A possessory action was brought by

the owners of a vessel against the

master, and, after the vessel had been
Held, That the Supreme Court did not

seized by the marshal, under the pro-
intend, by the 54th Rule in Admiralty,
to give this Court jurisdiction of the

cess in the action, the owners, through
second libel without a seizure of the

a new master whom they had ap-
bark within the District.

pointed, chartered the vessel, and by
That the object of the 54th Rule is to

consent of the marshal, but without
compel the appearance and giving of

the permission of the Court, began to

load the vessel under the charter:
security by a respondent in a cross-

Held, That the act of the owners, in
libel in personam, in cases where it
does not appear proper that he should interfering as they had done with the
be relieved from giving such security.

vessel, while in the custody of the law,
The Bristol and the Geo. S. Brown,

would well justify the Court in declin-

ing to exercise jurisdiction in the prem-
ises, but as that had been done with

the consent of the marshal, and the
2. Where a process was issued, contain-

rights of the defendant could be other.
ing a clause of foreign attachment,
and containing on its face a notice of

wise protected, the Court would decree

that the libellants recover possession
what the process demanded, and for

of the vessel without costs, on their
what cause, and of the time and place
when F. & T., the garnishees must ap-

paying into Court the inward freight

collected by them, less the usual in-
pear and answer, and the marshal
made this return on the process :

ward charges, including uploading
“ Personally served on F. & T. :"

and crew's wages, as security for the
Held, That service of the process on

payment of any sum found due to the
the garnishees was service of the notice

master, in an action to be brought by

him within twenty days, if he was so
required to be served on them, and

advised. The Brisk,

was a sufficient attachment of any
credits and effects of the respondent in 6. After such decree was entered, the
their hands.

respondent gave notice of appeal, but
That the marshal should have re- took no steps to perfect his appeal for
'turned, that the respondent was not several days, and the owners applied
found, and had no goods and chattels to the Court for leave to bond the
within the District, and that, there- vessel:
upon, his credits and effects had been Held, That the Court would not grant
attached in the hands of the garnishees. leave to bond the vessel, but would di-

That the return could be amended to rect that the decree be executed, unless

the respondent perfected his appeal, circumstance was not sufficient to give
and procured the cause to be transmit- him the right to intervene in the ac-
ted to the Appellate Court within two tion.

id. That his application for a stay of

proceedings in this action must be re-
7. A quantity of cotton was shipped on jected for the reason that he was not

board the steamship Idaho, bound for a party to the suit, and did not pretend
Liverpool, by M., who received a bill that there was any collusive use by the
of lading therefor, in the ordinary form, parties of the process of the Court to
dated May 4th, 1869. On the same deprive him of any substantial right.
day an action of replevin was com- That it is competent for a Court of
menced by P., against the master of Admiralty to stay proceedings, in any
the steamship, to recover the cotton as case before it, to prevent injustice: that
his property. In that action, the cot- no reason was apparent why the trou-
ton was seized by the sheriff, and was ble and expense of the three litigations,
by him nominally delivered to P., the each involving the title to the same

, but was not taken from the property, should be cast upon the
steamship, and, by agreement between owners of the ship; and that, on the
P. and the owners of the steamship, it application of the claimants, proceed-
was carried forward to Liverpool, and ings in the cause should, therefore, be
there delivered to the agent of P., who stayed, unless the libellants should elect
had agreed to indemnify the steamship to stay proceedings in the other cases.
against any liability by reason of such The Idaho,

carriage and delivery to him. M.
having assigned his bill of lading to 8. A libel of information was filed against
H. & Co., a libel was filed on the goods, to forfeit them for alleged vio-
9th of June, 1869, by them, against

lation of the revenue laws, and process
the steamship, to recover the value of was issued to the marshal, command-
the cotton not delivered according to ing him to attach the property and de-
the bill of lading. On the 19th of June tain it in his custody. The marshal
an action was commenced in the Court returned, that he had been unable to
of Exchequer, in Liverpool, by F., the attach the property and to detain it in
agent of H. & Co., against the owners his custody, and an alias monition was
of the steamship, to recover damages

issued to him. On the record in the
for the non-delivery of the cotton under cause, and an affidavit showing that
the bill of lading. After the filing of the goods had been, previous to the fil-
the libel, H. & Co, were made parties ing of the libel, seized by the collector
defendants in the replevin suit on their of the port of New York, and remained
own application. The answer of the in his custody, and that a certificate to
claimants, to the libel, set up the title that effect had been issued to the mar-
of P. to the cotton as a defence against shal, an application was made, on be-
the claim of H. & Co.

half of the United States, for an order
In this position of affairs P. applied that the alias monition be modified, so
to the District Court, on petition, pray- as to conform to the provisions of the
ing to be admitted to defend in this ac- 31st section of the Act of July 18th,
tion, and that the libellants be required 1866,(14 U.S. Stat. at Large, 186):
to litigate with him their title to the cot- Held, That the provisions of the 4th
ton, or, if they would not stipulate to section of the Act of May 8th, 1792,
do so, that their further proceedings in (1 U. S. Slat, at Large, 277), requiring
the suit, in the English Exchequer, be the marshal to take custody of all goods
enjoined. The owners of the steam- seized by any officer of the revenue,
ship also applied for a stay of proceed. were abrogated by the 31st section of
ings in this cause, unless the libellants the Act of July 18th, 1866, (14 Id.,
should elect to stay proceedings in the 186).
two other actions, and to proceed That the 9th Admiralty Rule of the

Supreme Court, in view of the provi-
Held, That the interest of P. in this sion of the Act of 1866, was not ap-
suit arose solely from his having agreed plicable to the case, it being a case, in
to indemnify the claimants against the the language of that Rule,“ otherwise
result of the litigation; and that that provided for by statute.”



That the alias monition would, there- advised, within thirty days. Ballou's
fore, be modified, so that it should Case,
command the marshal to attach the 4. A claim by petitioning creditors in
property by leaving with the collector,
or other person having the property

involuntary bankruptcy, for counsel

fees incurred by them, in the proceed-
in custody, a copy of the monition and
a notice requiring such collector or

ings before adjudication, cannot be
other person to detain such property

entertained by the Register in the
in custody until the further order of

first instance, but must be presented
the Court respecting it. The U. S. v.

to the Court, on petition. Dibblee's

One Case of Silk,


5. On March 26th, 1870, an order was

made requiring creditors to show

cause on April 21st, why a discharge

should not be granted to a bankrupt.

On April 7th, the Register granted
an order for the examination of the

bankrupt. The application for the

order was not in writing nor under
1. A proof of debt founded on a prom- oath, nor was any cause for issuing

issory note, is defective if it does the order stated, except that the
not set forth the consideration of the applicants were creditors. The bank-
note, and whether any payments have rupt appeared under the order and
been made on it. Loder's Case, 125 objected that the application was in-

sufficient, and that the time to ex-
2. The register, to whom a proceeding amine him had expired:
in bankruptcy has been referred, is

Held, That the time to examine
not bound to file a deposition for the bankrupt did not expire with the
proof of debt, taken and certified to

making of the application for his dis.
before another register, which does

charge; that the granting of the
not appear to him to be in conformity

order by the Register was a matter
with law; but, if an issue of law or of discretion; and that nothing ap-
fact arises thereupon, he should ad-

peared to show that his discretion
journ it into Court, under § 4 of the

was improperly exercised. Solis
Bankruptcy Act.


3. The property of a bankrupt levied 6. An order to show cause why a dis-
upon under an execution was, under

charge should not be granted to a
an order of the bankruptcy Court,

bankrupt may be made after the ex-
delivered to the assignee, and sold

piration of sixty days, and within
by him, subject to the determination

one year, from the adjudication of
of the Court as to the validity of the

bankruptcy, on a petition stating that
lien claimed by the creditor. The po assets have come to the hands of
assignee filed a petition praying that

the assignee; and such order will not
such lien might be declared void.

be set aside merely on proof that a
The creditor's answer prayed that it

small sum of money has been offered
might be adjudged valid, and that

to the assignee for some of the assets,
the assignee might be directed to

there being strong evidence that they
satisfy the execution out of the pro-

are absolutely worthless.

ceeds of the property held by him.
On an objection taken by the creditor, 7. Creditors of a bankrupt, against
at the hearing :

whose claim a protest bad been filed
Held, That, as the matter by the bankrupt, applied to the reg.
brought up by petition, instead of by ister, on a petition making allega.
bill in equity, it was irregular.

tions of fraud in the bankrupt's pro-
That both petition and answer ceedings, for an order directing the
must fall, and the proceeding be dis- examination of the bankrupt, and of
missed, without costs, with leave to witnesses, and extending the time to
the creditor to file a bill in equity, or show cause against the discharge till
bring a suit at law, as he might be after such examination. The register


declined to grant the order, because tion of the bankruptcy Act. It should
the creditors had no standing in have stopped with commanding the

marshal to take possession of the
Held, That the register, under $ 26, property of the debtor.
should have made the order prayed That, as Henry had only appeared
for, and that the time to show cause in the matter for the purpose of ob-
against the discharge ought to be taining relief against such warrant, he
extended till the examination was was not a party to the bankruptcy
concluded. Belden and Hooker's Case, proceedings; that the title of Henry


to the property conveyed to him could

only be tested in affirmative proceed-
8. Where one member of a firm of invol- ings, instituted by the assignee in

untary bankrupts, having applied for bankruptcy; and that Henry was en-
a discharge, petitioned for the pay- titled to the proceeds of the property.
ment by the assignee of disbursements Harthill's Case,

made by him in the proceedings to
obtain such discharge, under the 47th 10. If a bankrupt files two petitions, set-
section of the Bankruptcy Act:

ting forth the same debts, and the first
Held, That the Act makes no dis- one is still pending, proceedings under
tinction between a voluntary and an the second one will be stayed. Wiel.
involuntary bankrupt, as to the right arski's Case,

to be discharged, and that the claim
should be paid. Dibblee, Krauss and 11. Where, in a bankruptcy proceeding,
Bingley's Case,

304 an injunction was issued staying the

proceedings in a foreclosure suit
9. In a proceeding in involuntary bank- brought to foreclose a mortgage given

ruptcy, a warrant was issued, com- by the bankrupt on certain real estate,
manding the marshal to take posses- and the mortgagees applied to the
sion provisionally of all the property Court, on petition, to set aside the
and effects of the bankrupt, and “of stay, in order that the property might
all the goods, assets and property be sold under the decree in the fore-
lately conveyed, whether by bill of closure suit:
sale or otherwise, by the said Alex- Held, That the Register in charge
ander Harthill to Joseph Henry.” would be appointed special custodian
Under this warrant, the marshal took of the property, to sell the same, and
possession of certain property con- receive the proceeds subject to the
veyed by the bankrupt to said Henry order of the Court, the deed to be
before the filing of the petition. Henry given by the Register to convey the
applied by petition to the Court, for an title free from the lien of the mortgage.
order that the property be restored to Hanna's Case,

him, alleging that the transfer to him
was a bona fide purchase, and obtained 12. The mere fact of relationship on the
an order restraining the marshal from part of a proposed trustee, under the
any removal of the said property. A 43d section of the bankruptcy Act, to
reference was ordered to take proof as the bankrupt or to a creditor, or to a
to the validity and bona fides of the proposed member of the committee of
purchase made by Henry from the creditors, or on the part of a proposed
bankrupt, pending which the property member of such committee to a cred-
which had been taken by the marshal itor or to the bankrupt, cannot be re-
was sold as perishable. On the evi. garded as a disqualification. Zinn's
dence as reported, Henry moved for Case,
an order directing the delivery to him
of the proceeds in the hands of the 13. The power of a Register to postpone

the proof of a debt until an assignee
Held, That the warrant, in so far as has been chosen, includes the case
it commanded the marshal to take where a doubt arises as to the validity
possession of the property which had of a claim by reason of the receipt of
been conveyed by the bankrupt to a preference by the creditor, contrary
Henry, transcended the power con- to the provisions of the bankruptcy
ferred on the Court by the 40th sec- Act. Stevens' Case,



[blocks in formation]


In a suit in equity under the jurisdiction
created by the bankruptcy Act, a de-

was entered for the plaintiff.
Within ten days thereafter the defend-

ant gave notice of an appeal to the
Circuit Court, as required ty the 8th Fourteen men, the crew of a pilot boat,
section of the Act, to the clerk of the

having heard that a schooner bad
Court and to the plaintiff, but gave no been injured in a collision at sea, set
bond as that section requires. After

out in search of her, and after cruising
the ten days had expired, he presented some days found her derelict, and suc-
to the District Court a bond for ap- ceeded after three days in towing her
proval, as a bond on the appeal. The

into New York, expending about $160
bond was entitled in the Circuit Court,

in the service. The schooner and her
with the title of the cause, was in the

cargo were worth $4.000.
proper amount, and referred to an ap-

The Court awarded one-half as salv-
peal “to reverse the final decree

age, and added to it $100 and costs,
rendered in the above entitled suit

on account of the libellants having set
by the Judge of the District Court,"

out to search for and find the wreck.
but did not in any other way state The Saxon,

the decree appealed from.

Held, That the right of appeal given
by the 8th section cannot be enlarged

by the Court.

That, as no bond was given within A Prussian bark, with a crew whose
the ten days, no appeal could now be

term of service had not expired, was

laid up at Staten Island, on account
That, if the bond was correct, there of the war between Prussia and
was no reason why it should not be France. A difficulty arose between

the captain and the crew, and the men
That, as there was in the bond no demanded leave to go and see the
statement of the Court which rendered consul. This the captain refused to
the decree, except by a reference to allow, but agreed that one of them,
the title of the cause, and as the cause

named L., might go. They insisted
was entitled in the Circuit Court, the

that they would all go, and the cap-
bond was not a sufficient bond and tain went ashore to get the aid of the
could not be approved.

police. After he had gone, the crew
That, as no bond was given within

informed the mate that they were
the ten days, the issuing of execution going to see the consul, and went
on the decree could not be stayed.

ashore, without serious objection from
Benjamin v. Hart,


the mate. The captain, returning,
was told by the mate that the men

had gone ashore, and high words

passed between them, which resulted
in the mate's saying that he would go

too, and he went ashore, without ob.
See COLLISION, 18, 22.

jection from the captain. The cap-

tain, with a police officer, overtouk
the crew, and all bands went before a

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