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The Propeller Richard Doane.

the libellant and the claimants of the cargo, there must be a reference to take testimony by which to fix it.* When the amount is fixed, as it was, by the bond, to be paid out of the proceeds of vessel and cargo, and no time for payment was specified, the amount will be allowed at the date of entering the decree, without any interest upon it. The libellant will be entitled to the costs of the suit.

R. D. Benedict and J. Solis Ritterband, for the libellant.

Martin & Smith, for the claimants.

JANUARY, 1868.

THE PROPELLER RICHARD DOANE.

COLLISION.-PLEADING.-VESSEL AND OWNER.

A suit to recover damages for a collision cannot properly be brought against a

vessel in rem, and her owner in personam, unless her owner is also master. All the owners of a vessel injured by a collision should be joined as libellants. The case of Newell v. Norton (3 Wallace, 257) discussed.

This was a libel for a collision. It stated that David N. Woolman, the libellant, was the part owner and master of a certain canal boat, which was injured by a collision with the propeller Richard Doane, through the fault of the propeller. The libel prayed process against the propeller and against John H. Willis, her owner, and asked that the court would decree the payment of damages against Willis and the vessel, and that the vessel might be condemned and sold to pay the same.

To this libel, Willis, as claimant and respondent, excepted, on two grounds : (1.) Because the libel improperly

* This amount was fixed, on a reference, at $858.

The Propeller Richard Doane.

joined a suit in rem against the vessel, and a suit in personam against her owner. (2.) Because it presented, on its face, a nonjoinder of proper parties as libellants.

For libellant, M. Goepp.

For claimant, W.J. Haskett.

BLATCHFORD, J. The first exception is well taken. The 15th Rule of the Rules of Practice for Courts of Admiralty in instance causes, prescribed by the Supreme Court of the United States, provides, that in all suits for damage by collision, the libellant may proceed against the ship and master, or against the ship alone, or against the master or the owner alone, in personam. This rule has always, since its enactment, been construed as escluding any other mode of procedure, in suits for damage by collision, than that specified in and allowed by the rule. The proctor for the libellant seems to have been misled by an expression in the opinion of the Supreme Court, delivered by Mr. Justice Grier, in the case of Newell v. Norton (3 Wallace, 257, 266). In that case, a libel for collision was filed against a vessel and her master, who was part owner of her, and her other owners, and her pilot. The District Court sustained the libel as against the vessel and her master, and dismissed it as against the other owners and the pilot. The Supreme Court concurred with the District Court in this practice, and decided that it was proper for the District Court, in its discretion, to allow the libellant to elect in what way he would proceed in a case of such misjoinder, and to amend his libel accordingly. After deciding this point, Judge Grier, in the opinion, says: “The objection that a libel in rem against a vessel, and in personam against the owner, cannot be joined, was properly overruled, as it was in conformity with the 15th Rule in Admiralty, as established by this court.” Now, the report

In the Matter of J. Ogden Smith, a Bankrupt.

of the case shows that the objection that was overruled by the District Court was not an objection that, in a libel for collision, proceedings against a vessel and her owner, who was not her master, could not be joined. That objection was sustained. The objection that was overruled was an objection that, in a libel for collision,

a proceedings against a vessel and her master could not be joined. The overruling of the former objection would not have been in conformity with the 15th Rule in Admiralty, but the sustaining of it was in conformity with that rule. The overruling of the latter objection was in conformity with that rule. It is manifest that the language used by Judge Grier was inadvertently used.

The second exception, also, is allowed. All the owners of the damaged canal-boat may, and should, be joined as libellants. (Benedict's Adm., S 380; Fretz v. Ball, 12 How., 466, 468; Stannard v. The John Hart, in this court, before Judge Betts, March, 1861.)

The libel may be amended, on payment of costs, in both of the particulars in which it is excepted to.

JANUARY, 1868.

IN THE MATTER OF J. OGDEN SMITH, A BANK

RUPT.

CHOICE OF ASSIGNEE.-DUTY OF REGISTER.–CHANGE OF REGISTER.

NOTICE OF OBJECTION TO PROOF OF Debt.

It is incumbent upon registers in no manner to interfere with or influence, directly

or indirectly, the choice of an assignee by creditors. The policy of the Bankruptcy Act is to give to the creditors, in the first instance,

a free, deliberate, unbiased choice of the assignee. Where creditors applied to have the proceedings sent before another register than

the one to whom the case had been referred, on the ground that the register had interfered in the choice of an assignee, the court granted the application, without, however, questioning the motives of the register in what he had done,

Vol. II.-8

In the Matter of J. Ogden Smith, a Bankrupt.

but because the creditors, who had made affidavits in support of the application, and their attorney, ought not to be compelled by the court, after all that had

transpired, to continue the proceedings before the register in question. Where creditors, who had proved their debts, served on the register a notice pro

testing against the proof of any claims against the estate by certain other creditors, and requesting to be notified if any such claims were tendered for

proof: Held, That they had the right to serve such a notice.

BLATCHFORD, J. This is a case of involuntary bankruptcy, in which an adjudication of bankruptcy was made

the court on the 17th of December, 1867. The order of adjudication referred the case to one of the registers in bankruptcy of the court, by name, to take such proceedings thereon as are required by the Act. On the same day a warrant was issued, which appointed the 15th day of January, 1868, at the office of such register, as the day for the meeting of the creditors of the bankrupt to prove their debts and choose one or more assignees of his estate. An application is now made to the court, on the part of Hallett & Robbins, creditors of the bankrupt, who have proved their debt against his estate, to vacate so much of the order of adjudication as refers the case to the register designated in the order, and to refer it to some other register, without prejudice to proceedings already had in the case. The ground on which this application is based is, that the register has improperly interfered in the matter of the choice of an assignee of the estate of the bankrupt. Uncontradicted testimony shows that, on several occasions, on several different days, from two to five days prior to the day appointed for the first meeting of creditors and for the choice of an assignee, when creditors attended in person at the office of the register for the purpose of making oath before him to their proofs of debt, he presented, or caused to be presented, to them, a printed blank of Form No. 15, with the name of a person inserted in it as assignee of the bankrupt's estate, and requested them, either directly or through a clerk in his office, to sign

In the Matter of J. Ogden Smith, a Bankrupt.

such blank form, and vote for such person as assignee. It does not appear that such person was known to or of by any of such creditors, and it does appear that several of them did not know him or know of him. The register's reply to these allegations consists in a vindication of his motives in soliciting votes for the assignee, and in testimony as to the fitness of the person designated, and in attacks upon the character and motives of the attorney for Hallett & Robbins, who are also the petitioning creditors.

Whatever were the motives of the register, and however well fitted for the position the assignee of his choice was, his interference in the matter, in the manner stated, was wholly unwarrantable and improper. The register is a part of the court, his duties are of a judicial character, and his action should, under all circumstances, be free from reproach and above all suspicion of interest or partisanship. The fourth section of the Bankruptcy Act provides, that “no register shall be of counsel or attorney, either in or out of court, in any suit or matter pending in bankruptcy, in either the circuit or district court of his district, nor in an appeal therefrom, nor shall he be executor, administrator, guardian, commissioner, appraiser, divider, or assignee of or upon any estate within the jurisdiction of either of said courts of bankruptcy, nor be interested in the fees or emoluments arising from either of said trusts." This provision indicates the spirit of judicial impartiality which the law expects will be exhibited by every register in the discharge of his important duties. With the choice of an assignee by the creditors he has nothing to do, except to preside at the meeting at which the choice is made. It is not necessary he should approve or confirm the choice; for, although such an approval by the register is appended to Form No. 15, nothing of the kind is required by the statute. The election is subject to the approval of the judge; and, although it is the duty of the register, in

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