In the Matter of John R. Penn and others, Bankrupts.

Court an order providing him with the means of being admitted to prosecute, in his own name, the action in the State Court, and enjoining the bankrupt Clark from opposing his application to the State Court in the premises, and giving him leave to apply to the State Court for such order in the action as he should be advised to apply for, and inasmuch as he has applied to the State Court for the granting of the order, before mentioned, discontinuing the action in that Court, and dismissing the complaint therein, it seems hardly necessary that this Court should direct him to apply to the State Court.

The applications are, therefore, denied.

MARCH, 1870.

IN THE MATTER OF JOHN R. PENN AND OTHERS, BANKRUPTS.

PRACTICE. JURISDICTION.-DISCHARGE.

Where creditors of involuntary bankrupts applied to set aside the adjudication of bankruptcy, on the ground that the Court had no jurisdiction to make it, by reason of the absence of certain jurisdictional averments in the petition, the bankrupts opposing the application:

Held, That the question of jurisdiction could not be raised at this stage, or in this way.

That the creditors could oppose the application of the bankrupts for discharges, on the ground that the Court had no jurisdiction of the case, if they saw fit; That a discharge granted without jurisdiction is void.

BLATCHFORD, J.-In this case, John R. Penn, Charles V. Culver and Lucien H. Culver, both individually and as members of the firm of Culver, Penn & Co., have been adjudged bankrupts. Thomas Hoge, a creditor

In the Matter of John R. Penn and others, Bankrupts.

of Charles V. Culver, individually, and William Raymond, a creditor of the said firm, and also a creditor of Charles V. Culver, individually, now apply to the Court to set aside the adjudication of the bankruptcy of the said firm, and of Charles V. Culver and Lucien H. Culver, on the ground that this Court had no jurisdiction to make such adjudication, by reason of the absence of certain jurisdictional averments in the petition. The petition was filed by Penn against the Culvers, as his copartners, and prayed that the copartnership and its said three members might be adjudged bankrupts. An order to show cause was issued against the Culvers, and on the return day they appeared by attorney, and filed a written consent to be adjudged bankrupts in this proceeding. They do not question the adjudication. On the contrary, they and Penn, on notice from the said creditors, oppose this application.

I do not think the questions sought to be raised by these creditors, can be raised by them at this stage of the proceedings or in this way. If they wish to oppose the application of the bankrupts for their discharges, on the ground that this Court has no jurisdiction of the case, they can do so when the time arrives, as was done in the case of In re Little, (3 Benedict, 25,) where a discharge was refused on such ground. If they shall not so oppose, and a discharge shall be granted, such discharge, if granted without jurisdiction, will be void, for, by section 34 of the Act, it is only a discharge duly granted which is of any avail. A discharge granted without jurisdiction to grant it, is not duly granted, and is no discharge. It is unnecessary, therefore, to pass upon the questions raised and discussed on the hearing.

The motions are denied.

R. Sewell and A. B. McCalmont, (of Pennsylvania,) for the creditors.

F. N. Bangs and L. K. Miller, for the bankrupts.

F

The Schooner Elizabeth & Helen.

MARCH, 1870.

THE SCHOONER ELIZABETH & HELEN.

COSTS.-WITNESS' FEES.

Witness' fees and mileage for the attendance of a party to an Admiralty suit, cannot be taxed in his favor against the other party.

THIS case came up on an appeal from the clerk's taxation of costs. The cause was one of collision, and resulted in a decree dismissing the libel with costs. The claimants sought to tax against the libellant witness' fees and mileage for one of the claimants who had been examined as a witness in the cause, The clerk refused to tax it, and the claimants appealed.

R. D. Benedict, for the libellant.

W. R. Beebe, for the claimants.

BLATCHFORD, J. In view of the provision of the 3d section of the Act of February 26th, 1853, (10 U. S. Stat. at Large, 168,) that the "amount paid" to witnesses shall be taxed and be included in and form a portion of a decree against the losing party, in cases where costs are recoverable in favor of the prevailing party, such amount being the "witnesses' fees" specified in the same section, and of the provision of the 1st section of the same Act, that the compensation specified in that Act, and no other, shall be taxed and allowed in the Courts of the United States, and of the decision made by the Supreme Court of the State of New York, at General Term, in the Sixth District, in January, 1865, in Steere v. Miller, (28 Howard's Pr. Rep., 266,) and by

In the Matter of George Woodward and Julius C. Woodward.

the Court of Appeals of that State, in the same case, in June, 1865, (30 Id., 7,) upon a section (311) of the Code of Procedure of the State of New York, not differing in substance from the provision above referred to in the 3d section of the Act of 1853, I do not think that the claimants, in this case, can recover from the libellant, as part of the taxable costs on the dismissal of the libel, witness' fees or mileage for the attendance of one of the claimants as a witness in the cause. The deduction of $104 40, made on that account from the bill of costs, by the clerk, on taxation, was, therefore, proper, and the taxation is affirmed.

MARCH, 1870.

IN THE MATTER OF GEORGE WOODWARD &

JULIUS C. WOODWARD.

A witness who claims to have acted as counsel for a bankrupt, cannot, on that ground, refuse to be sworn as a witness in the bankruptcy proceedings.

In this case, the assignee for the bankrupt, by his counsel, attended before the Register, and one William McKeag attended as a witness, but refused to be sworn, on the ground that he had acted as counsel for the bankrupt, and was still his adviser.

The Register decided as follows: "The right to refuse to answer a question on the ground of privilege, does not warrant a refusal to be sworn as a witness. The privilege cannot be interposed until a question is asked which invades the privilege."

2

The Ship Queen of the East. The Brig Calypso.

On request the Register certified the question to the Court.

BLATCHFORD, J. The decision of the Register is

correct.

Eastern District of New York.

MARCH, 1870.

THE SHIP QUEEN OF THE EAST.
THE BRIG CALYPSO.

COLLISION IN NEW YORK HARBOR.-VESSELS AT ANCHOR.-FOUL

BERTH.

The brig C. was at anchor in a proper place in New York Harbor. The ship Q., also at anchor there, dragged her anchor, the wind being heavy from the southsouth-west, and the tide flood. She dragged by the brig and brought up astern of her. Shortly after, the brig began to drift down upon the ship. It was claimed by the brig, that this was in consequence of the ship's anchor catching in the brig's chain, while it was claimed by the ship that the brig paid out her chain. When the tide turned, the vessels swung together, injuring both of them.

Held, That the brig was anchored in a proper place;

That there was negligence in the ship's being allowed to drag her anchor, result-
ing probably from the master's being ashore and the chief mate off duty;
That, if the ship's chain became entangled with that of the brig, the berth was
foul, and the damages must be held to be the result of that negligence;
That the brig was entitled to room enough to swing in safety on as long a scope
of chain as was necessary to prevent her from dragging, and if, to prevent
that, she did pay out chain, she would not be held responsible for thereby
coming into dangerous proximity with the ship;

That the ship was in either event liable for the damages.