In the Matter of Charles G. Patterson, a Bankrupt. New York an execution on said judgment, commanding him to arrest the bankrupt and commit him to jail until he should pay the judgment or be discharged according to law, and that the execution was in the hands of the sheriff, and he was about to arrest the bankrupt on it. On these facts, the bankrupt asked this court to enjoin the sheriff from arresting the bankrupt on the execution, during the pendency of the proceedings in bankruptcy. Sandford, Le Baron & Porter, for the bankrupt. E. F. Shepard, for the creditor. BLATCHFORD, J. It is claimed, on the part of the bankrupt, that the judgment in question is a debt which will be discharged by a discharge under the Act; that the original cause of action was merged in the judgment; that the judgment is now the only debt; that it cannot be said, under section thirty-three of the Act, that the debt was created by fraud, because the original claim, though created by fraud, was extinguished by the judgment, and the fraud disappeared when the judgment was obtained; that the judgment alone, and not the claim created by fraud, is provable under the Act; that, as the judgment is provable, a discharge will discharge it; that, therefore, the bankrupt is, by the last clause of section twenty-six, exempt from arrest on the judgment during the pendency of the proceedings in bankruptcy; and that, under section twenty-one, the court can enjoin an execution on the judgment. I cannot assent to these views. The question as to whether the debt which is represented by the judgment was created by the fraud of the bankrupt, I regard as concluded by the judgment. It was recovered in a court of competent jurisdiction, on the personal service of a complaint setting forth all the facts making up the fraud. The question is, therefore, res adjudicata, as In the Matter of Charles G. Patterson, a Bankrupt. between the parties to the judgment, who are the same parties now before this court. The only other question is, whether the debt is one excepted by section thirty-three of the Act from the operation of a discharge. That section provides, that "no debt created by the fraud or embezzlement of the bankrupt, or by his defalcation as a public officer, or while acting in any fiduciary character, shall be discharged under this Act." It is claimed by the bankrupt that, the debt in this case being in the shape of a judgment, this court cannot, in applying the thirty-third section, go behind the judgment, to see whether the claim on which the judgment was recovered was created by fraud; that the judgment, which is now the only debt, was created by the claim, and not by the fraud, and that, although the judgment was created by the claim and the claim by the fraud, yet the judgment was not created by the fraud. This view is unsound. Wherever the debt, no matter whether it be in the shape of a judgment or in any other form, was created by fraud, had its root and origin in fraud, there it is not to be discharged. To hold that the recovery of a judgment in an action where the gravamen of the complaint is fraud, condones that very fraud, by so merging the original claim, that the judgment cannot be said to be a debt created by the fraud set out in the complaint as the ground for recovering the judgment, would fritter away entirely the good sense and plain intention of the thirty-third section. The case of Bangs v. Watson (9 Gray, 211), cited to sustain this view, does not, in my judgment, support it, and I have been referred to no case which leads to any such conclusion. The debt, in this case, not being one to be affected by a discharge, the bankrupt is not exempt from arrest upon it, and the application is denied. The Steamship Alhambra. FEBRUARY, 1868. THE STEAMSHIP ALHAMBRA. COLLISION AT SEA.-STEAMER AND SCHOONER MEETING.-Change of COURSE BY Schooner. A steamer, steering south half west, off Cape Hatteras, in the night, made a schooner's green light one and a half or two points on her starboard bow, and changed her course to south-southeast, which she kept for ten or twelve minutes, the position of the light remaining about the same, and then changed her course to south, and ran on that course for fifteen minutes, the light remaining in about the same position, and the green light then went out of sight, and a red light came in view, where upon the steamer's helm was at once ported, and her engine stopped and reversed, but too late to avoid the collision. The schooner, sailing north by east, with the wind south by east, made the steamer's light directly ahead, and being uncertain whether she was a steamer or a sailing vessel, ported her helm, and changed her course to northeast by north, and kept that course till she saw that the vessel was a steamer approaching on a course which would run her down, when she put her helm hard a-port, and changed her course to east by north. The speed of both vessels was about six or eight miles an hour, that of the schooner being a little the greater. Each vessel had her lights properly set and burning. The schooner was struck amidships on the port side, and sunk instantly. Held, That, on this state of facts, the 15th and 18th articles of the Act of April 29th, 1864, prescribed the rules for the navigation of the vessels. That it was a fault in the schooner to port her helm when she did so first, especially when she was uncertain whether the approaching light was that of a steamer or sailing vessel. That that fault did not contribute to the collision. That the fact that the position of the light ahead did not change after the steamer had changed her course to the eastward, ought to have been a clear indication to her that the schooner was proceeding in such a direction as to involve a risk of collision, and, under those circumstances, it was her duty to keep out of the schooner's way. That the steamer ought to have ported before she did, and ought to have stopped and backed before she did. That the last change of the schooner's helm to port, being made in the heat of danger, did not cause the collision, nor was it faulty. This was a libel filed to recover damages for a col The Steamship Alhambra. lision, which took place between two and three o'clock A. M. on the 26th of June, 1865, about fifty miles to the northward of Cape Hatteras, between the steamship Alhambra and the schooner Wonder, by which the schooner was sunk and totally lost. The schooner was owned by Kinney and Smith. Smith was her master. He lost his life in the collision. The schooner was on a voyage from Nuevitas, in Cuba, to Philadelphia, and had a crew of seven men, namely, her master and Kinney, who was on board as supercargo, and a mate, a cook, and three men before the mast. She also had two passengers. They were lost in the collision. The mate was so injured that he afterward died. The mate and McLean, one of the seamen, were the only persons on deck on the schooner at the time of the collision, and for some time before, except two men, who were asleep in the boat. The schooner had her proper green and red lights burning. The wind was fresh, and about south by east. The schooner had eight sails set. The steamer was bound from New York to Charleston. The libel averred, that the course of the schooner was north by east; that the mate, who was on the lookout on the schooner, saw the lights of a vessel several miles distant, and directly ahead; that, until the vessels approached each other, it was uncertain to the schooner whether the vessel approaching her was a sailing vessel or a steamer; that, when the steamer's lights were discovered ahead, the course of the schooner was changed, by porting her helm, from north by east to northeast by north; and that she steadily kept on that course until after it was discovered that the approaching vessel was a steamer, and until she had approached so near as to make a collision imminent, and until it was found that the steamer was steering a course which would carry her against the schooner, when the wheel of the schooner was put hard to port, and she swung around to east by north, when the steamer, at full speed, and without The Steamship Alhambra. slowing, stopping, or backing, struck the schooner on her port side, about amidships, and cut her in two and sunk her. The libel also averred, that the lights of the schooner were made by the steamer nearly or quite ahead, when the vessels were several miles apart, the course of the steamer being at the time south half west; that, upon discovering the lights of the schooner, the course of the steamer was changed to south-southeast, which brought the schooner more upon the starboard bow of the steamer; that the mate of the steamer supposed the schooner to be a steamer; that the steamer ran for several minutes on a south-southeast course, the schooner retaining her relative position to the steamer, which was an indication that their lines were crossing; that the course of the steamer was then changed to the south, which brought the lights of the schooner dead ahead; that the steamer continued that course for a short time, when she found herself rapidly nearing the schooner, and her wheel was put hard to starboard, which brought her directly across the schooner; that the order was immediately given to port the steamer's helm, but, before her wheel had reached amidships, she struck the schooner, the speed of the steamer not being diminished, nor any signal given by her until after she had struck; that the collision was the fault of the steamer, in not having a proper lookout, in not porting instead of starboarding her wheel when she made the schooner's lights ahead, in not keeping still farther away after she had changed her course back to south and had made the schooner's lights ahead, in putting her wheel hard to starboard when she found herself approaching the schooner, in not blowing her whistle, in not slowing, stopping, and backing, and in not avoiding the schooner; that the schooner had a good lookout, and good and sufficient lights; and that her course was proper in changing to the right when she made the steamer's lights ahead, and in keeping to the right until the collision. |