The Schooner Elizabeth English.

free, and that it was, therefore, the duty of the E. E. to keep her course, and the duty of the E. to avoid her.

That, as no light was shown by the E. till just before the collision, and the luff, which it was claimed the E. E. made, was sworn to have taken place before the light was shown, while the evidence was, that, owing to a heavy cloud rising behind the E., she was not seen at all by the E. E. till the light was shown, the alleged luff was not established.

That the E. E. was not in fault in not seeing the E. sooner, under the circumstances.*

BLATCHFORD, J. This is a libel for a collision which occurred on the 16th of February, 1858, between eight and nine o'clock P. M., about three miles southeast from Absecom Light, in the Atlantic Ocean, off the coast of New Jersey, between the schooner Ella, bound from New York to Chincoteague, in Virginia, and the schooner Elizabeth English, bound from Wilmington, in North Carolina, to New York. The proper course of the Ella, at the place of collision, was southwest, and she was heading, by compass, about southwest by west, or one point to the windward of her proper course. The proper course of the Elizabeth English was northeast, and she was heading about northeast by north, or one point to the windward of that course. It is contended by the Ella that the wind was west northwest, and that she was close-hauled, heading within five points of the wind on her starboard tack, and that the Elizabeth English had the wind at least two points free; while it is claimed by the Elizabeth English, that the wind was north northwest, or a little farther to the north than that, and that she was close-hauled, heading within five points of the wind on her port tack, and that the Ella had the wind at least three points free. The Ella was struck on her port bow by the Elizabeth English, and sank very soon, the mate of the Ella being killed or lost in the collision. The horizon was very dark toward the northward and eastward, as seen from the Elizabeth English, while it

* This decision was affirmed by the Circuit Court on appeal, in March, 1870.

The Schooner Elizabeth English.

was lighter toward the southward and westward, as seen from the Ella. The Elizabeth English had no light, but she was seen from the Ella at some distance off, her master says, at two hundred to three hundred yards off. When the persons on board of the Ella caught sight of the Elizabeth English, the Ella had no light. She had previously been exhibiting a light, but it had gone out, and the steward was in the cabin at the time putting the light in order. The master of the Ella was at the wheel of the Ella when he first saw the Elizabeth English. To his eye, and in his judgment, the Elizabeth English was then to the leeward of the Ella, for he says that he then thought that, if the Elizabeth English kept her course, she would go clear of the Ella, to the leeward of her. He also says, that when the Elizabeth English was within one hundred and fifty yards of the Ella, he, the master, noticed that the Elizabeth English was luffing toward the Ella; that he then began to think there was danger of a collision; that he then immediately called into the cabin to the steward, and directed him to hurry on deck with the light; and that the steward then came up on deck with the light, and took it forward, where it could be seen. He also says that he kept the Ella on her course from the time he first sighted the Elizabeth English until the collision. Now, it is fully established by the evidence of those on board of the Elizabeth English, that nothing was, or could be seen, by them, of the Ella, until her light was discerned, which was almost at the moment of collision, and was so short a time before it, that, although the instant the light was seen, an order was given and obeyed, to port the helm of the Elizabeth English, her helm was not got over, nor was her course at all changed, before the crash came. This clearly shows that the Elizabeth English did not luff. Yet, to the master of the Ella, the other vessel presented the appearance of luffing. This appearance, I am satisfied, on the evidence, arose from the fact that the Ella was not kept on her

The Schooner Elizabeth English.

course, but was suffered by her master to fall off, with the wind, toward the Elizabeth English. This appearance of luffing on the part of the latter vessel presented itself before the Ella or her light was seen, and before the Elizabeth English had any motive to make, or did make, any movement to alter her course. A good lookout was kept on the Elizabeth English, and the light on the Ella was seen as soon as it possibly could be, and when it was too late for the Elizabeth English to do any thing to avoid the collision. She was, therefore, not at all in fault. Her not showing a light did not at all contribute to the collision, for she was plainly seen by the Ella, in season for the Ella to have exhibited her own light, or to have insured an avoidance of the collision by keeping her course. The Ella failed to show a light. Such failure prevented her position from being made known to the Elizabeth English, in season for her to have ported her helm sooner than she did. According to the testimony of the master of the Ella, the Elizabeth English being to the leeward when first seen, if her helm had been ported sooner than it was (and the presumption, from what was, in fact, done, is, that it would have been, if the light of the Ella had been sooner seen), she would have gone still further to the leeward, and there would have been no collision, even with the change of course to the leeward which the Ella made by falling off. The Ella was in fault in falling off with the wind, when her master clearly saw that, if he kept his course, the Elizabeth English would go clear of him to the leeward.

The view thus taken is entirely independent of the question as to whether the wind was west northwest, as claimed by the Ella, or north northwest, as claimed by the Elizabeth English, and of the question as to which of the two vessels had the wind free. But I am satisfied that the weight of the evidence is, that the Elizabeth English was close-hauled, and that the Ella had the wind from two to three points free. This being so, the Elizabeth

In the Matter of William H. Magie, a Bankrupt.

English was entitled to the right of way, and to keep her course, even though she was on the port tack, and it was the duty of the Ella, seeing the other vessel nearly ahead, and having herself the wind free, to put her helm a-port, even though she was on the starboard tack (The George, 5 Notes of Cases, 368). Instead of doing this, the Ella did the very opposite, and bore down against the other vessel, and brought upon herself the calamity which ensued. The collision occurred wholly from the incompetence and mismanagement of the master of the Ella. There must be a decree dismissing the libel, with costs.

C. Donohue and W. J. Haskett, for the libellant.

Benedict & Benedict, for the claimant.

APRIL, 1868.

IN THE MATTER OF WILLIAM H. MAGIE, A BANKRUPT.

JURISDICTION.PLACE OF RESIDENCE.-DOING BUSINESS.

Where a bankrupt filed a petition in bankruptcy in this district, not averring any place of residence, and, on his examination, it appeared that he resided with his father, in New Jersey, and had done so since he came from Chicago, four years previous, that he had been engaged in looking after a private matter, with a view to returning to Chicago, and that, for about six months back, he had been keeping books for a firm in New York city, and, thereupon, the register declined to make an adjudication of bankruptcy, as having no jurisdiction of the case: Held, That the register's decision was correct.

In this case, a petition in bankruptcy was filed by the bankrupt on March 3d, 1868, which was referred to a register. It stated that he had been "a general agent and clerk for twelve months next immediately preceding the filing of the petition, at New York city." The register

VOL. II.-24

In the Matter of William H. Magie, a Bankrupt.

examined the petitioner on oath, and he deposed that he resided with his father, in New Jersey, and had done so since he came from Chicago, Illinois, about four years before, where he had been in business; that he had been engaged in looking after a personal matter since he came from Chicago, with the intent of returning there; and that, since about the middle of October, 1867, he had been engaged in keeping books with a firm in New York city, but had not been engaged with any other persons in New York city, nor had any business connection save as thus stated, nor been engaged in business otherwise for himself.

The register thereupon declined to make an adjudication of bankruptcy, on the ground that this court had no jurisdiction of the case, inasmuch as the petition was not "addressed to the judge of the judicial district in which such debtor has resided, or carried on business, for the six months next immediately preceding the time of filing such petition."

On request of the bankrupt, the question was certified to the court.

BLATCHFORD, J. I think the register was correct in his decision. The principles laid down by this court, in In re Kinsman (1 N. Y. Legal Observer, p. 309), in reference to a kindred provision in the Bankruptcy Act of 1841, make it improper for this court to assume jurisdiction in this case.