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In the Matter of Asa W. Craft, an Involuntary Bankrupt.

to confess a judgment, under which goods were taken on execution, was not procuring, but was suffering the goods to be taken on execution; and, in Gibson v. King (1 Carr. & Marsh., 458), it was held, that allowing a judgment to go by default was suffering goods to be taken in execution which were taken under the judgment, and was not procuring them to be so taken.

With these views, nothing would remain but to decree an adjudication of bankruptcy against Craft, but for the fact that the petition of the creditors is defective in its allegations. It sufficiently avers that Craft suffered his property to be taken on legal process, with intent to give a preference to Jones, as a creditor ; but it nowhere avers that Craft committed this act of sufferance when he was insolvent, or in contemplation of insolvency. The petition does not aver that he is, or was, insolvent, or contemplated insolvency. It merely avers that he did the acts alleged “in contemplation of bankruptcy.” Those words, as used in the Bankruptcy Act of 1841, were defined by the Supreme Court, in Buckingham v. McLean (13 Howard, 150, 167), to mean, in contemplation of committing what was made by the Act an act of bankruptcy, or of voluntarily applying to be decreed a bankrupt. I think they have the same meaning as used in the thirty-ninth section of the Act of 1867. In such sense, Craft did not commit this act of sufferance in contemplation of bankruptcy. It will not do to say that the act of making a transfer of property, or of procuring or suffering property to be taken on legal process, with the intent named, is an act of bankruptcy, whether the debtor is, or is not, otherwise shown to be bankrupt or insolvent, or to be contemplating bankruptcy or insolvency, on the idea that the act becomes, ipso facto, one in contemplation of bankruptcy, because, it being an act of bankruptcy, and thus being bankruptcy, the doing of it must have been in contemplation of bankruptcy. This is reasoning in a

In the Matter of Asa W. Craft, an Involuntary Bankrupt.

circle, and such a view would not require that the debtor should ever be insolvent or contemplate insolvency, and would virtually strike those words out of the section ; for, if it were shown that the debtor had done the act named, with the intent named, the fact that he had done it in contemplation of bankruptcy would follow as an inevitable legal conclusion, and insolvency, or the contemplation of it, would never become an operative prerequisite. The debtor must be shown, aside from the mere doing of the act named, with the intent named, to have done it when bankrupt or insolvent, or in contemplation of bankruptcy or insolvency. The only averment in this regard, in the petition in this case, being that the acts done were done in contemplation of bankruptcy, and that averment not being sustained by proof that they were done in contemplation of bankruptcy, the petition is not sustained. Yet all the facts set forth in the petition are found to be true, except the fact that the acts therein alleged to have been done were done in contemplation of bankruptcy. The additional fact is also found to be true, that those acts were done when the debtor was insolvent. The facts set forth in the petition, and such additional fact, make out a clear case for adjudging the debtor to be a bankrupt, and to have committed an act of bankruptcy before the filing of the petition. The additional fact is not one that takes the debtor by surprise. He was fully examined, without objection on his part, on the taking of the testimony, as to his debts and property, with a view to showing that he was insolvent at the time the acts set forth in the petition were done. The case, therefore, is a proper one to suspend a decision on the issue joined, and allow the petitioners to apply to amend their petition in the particular suggested. The fact that the creditors pursued the line of testimony indicated, without objection from the debtor, shows either that the parties labored under a misapprehension as to what the petition

Egbert v. The Baltimore and Ohio Railroad Company.

averred, or else were under the belief that the averment of contemplation of bankruptcy was the equivalent of an averment of contemplation of insolvency, and not more restricted. In either view, an amendment of the petition is proper, to prevent a failure of justice.

The decision on the petition and denial is, therefore, suspended to allow the amendment suggested.

Benedict & Boardman, for the creditors.

Edwin James, for the debtor.

MARCH, 1868.

WESLEY EGBERT vs. THE BALTIMORE AND

OHIO RAILROAD COMPANY.

DAMAGES IN COLLISION Cases.- COMMISSIONER'S REPORT.-NET

FREIGHT.-INTEREST.

Where, in a collision case, on contradictory evidence, the commissioner to whom

it was referred to ascertain the damages, reported a certain amount as the value

of the vessel that was lost: Held, That though, if the question were before the court as an original one, the

court would be inclined to fix a lower value, yet, as the preponderance of evi

dence was not palpable, the finding would not be disturbed. Net freight only is recoverable in such a case, and not gross freight; nor can the

freight allowed exceed that which was claimed in the libel. Interest on the value of the vessel, and on the net freight, from the time of the

‘lose, may be allowed, though it was not claimed as such in the libel.

BLATCHFORD, J. This is a hearing on exceptions by the respondents to the report of a commissioner as to the damages recoverable by the libellant on a decree in a case of collision.

1. The commissioner reports the value of the libellant's vessel, which was sunk by the collision and totally lost, at $14,000. The respondents contend that the

Egbert v. The Baltimore and Ohio Railroad Company.

evidence before the commissioner warrants a value not exceeding $10,000. The libel claimed $16,000 as such value. The testimony is very conflicting, and, if the question were before me originally, as a new question, on the written testimony, and I were called on to decide upon it in the first instance, and it did not come up on the finding of a commissioner and an exception to such finding, I should be inclined to hold that the commissioner had allowed too much for the value of the vessel, and that a sum not exceeding $11,000 or $12,000 was the proper amount. But I cannot say that the preponderance of testimony against the $14,000 is such as to warrant me in disturbing the report in this respect. As was said by this Court in Holmes v. Dodge (1 Abbott, 63): “It is not usual to reverse the judgment passed upon matters of fact by a tribunal or officer having had opportunity for a personal examination of witnesses in each other's presence. A court reviewing the evidence as reproduced upon paper, possesses but imperfectly the means of determining the relative credit of witnesses who stand in conflict as to facts, and it is always safer, when the preponderance is not palpable, to rely upon the discrimination and conclusions made by those who have seen and heard the witnesses face to face, than to attempt to settle that point by weighing the written report of the testimony." That was the case of exceptions to the report of a commissioner. The same views were applied by the Circuit Court for this District in The Grafton (1 Blatchf. C. C. R., 173, 178), and in The Narragansett (Id., 211, 217). The first exception is, therefore, disallowed.

2. The commissioner allowed $847.50 as freight, at $3.75 per ton, on 226 tons of coal which the libellant's vessel was carrying on freight at the time. The libel claims $625.50 as freight on 226 tons of coal, being a little over $2.76 per ton. The rate claimed per ton is not stated in the libel. The evidence shows that the $3.75 was the gross freight to be earned as contracted for.

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Egbert v. The Baltimore and Ohio Railroad Company.

The second exception is to the allowance of the $847.50,

as no freight was claimed, and none was earned, or if any was earned, it was only pro rata itineris, and, if freight was earned, the insurance should be collected of the insurance companies.” This exception is overruled. What is meant by the expression “no freight was claimed,” is perhaps, not perfectly clear. The libel does claim some freight. If the exception means that the libellant did not, after the collision and before suit, claim the freight from the respondents as damages, that is immaterial. He claims it in this suit. The vessel having been in the act of earning freight, the freight which she was in the act of earning, and has lost by the collision, is allowed, as a just measure of compensation (The Gazelle, 2 W. Rob., 279; Williamson v. Barrett, 13 How., 101, 111 ; The Bark Heroine, 1 Ben. 226). The second exception is disallowed.

3. The third exception is, that, in case the libellant is entitled to any freight, he is entitled to recover only the amount specified in the libel. The libellant is entitled to recover only net freight, and not gross freight. The commissioner has reported gross freight. There must be deducted from the freight the vessel was engaged in earning, the expenses she would have incurred if the voyage had been successfully performed, and which expense would have diminished by so much the gross freight (The Gazelle, before cited.) The exception is broad enough to cover this point, as the libellant is entitled to recover only so much for freight as he has claimed therefor in his libel, and the freight, as allowed, being gross freight, and the amount claimed in the libel being less than the gross freight, it may well be that the amount claimed for freight in the libel is the net freight. In no event can the net freight to be allowed exceed the amount claimed for freight in the libel. The third exception is allowed. 4. The commissioner has allowed interest on the value

VOL II.-15

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