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The Brig Eledona,

Guy, in the Circuit Court for the Eastern District of New York, on appeal (September, 1867), Judge Nelson upholds the soundness of the decision in Pratt v. Reed, as above defined, and holds that, in every case, the question of the necessity for the repairs or supplies, as well as the question of the necessity for creating a lien on the vessel for them, must depend on the facts and circumstances of the case. Again, in the case of Ross v. The Steamboat Neversink, in the Circuit Court for this district, on appeal (November, 1867), Judge Nelson refers to the cases of Thomas v. Osborn and Pratt v. Reed, and says, in regard to those cases, that the decisions in them were placed upon ancient and settled authority; that those decisions extend no rule beyond its ancient strictness, and lay down the principles which are to govern cases of the kind ; that no fixed rule can be laid down in advance as to what will be sufficient proof of an apparent necessity for giving credit to a vessel, but the question must rest in the sound judgment of the tribunal before which the proof is presented; that good faith and fair dealing must be exacted, in every case, on the part of the person furnishing the supplies or repairs ; and that the absent owner ought to be guarded against any collusion of the master with the material man or the furnisher of supplies, and against an unnecessary tacit incumbrance upon his vessel. In that case, Judge Nelson upheld the lien on the vessel, because the supplies were furnished at a place where the owners of the vessel were not present, and, in the sense of the maritime law, in a foreign jurisdiction, and because the master had no means wherewith to pay for the supplies. He held, therefore, that there was an apparent necessity for a credit to the vessel. In the case of Bickford v. The Brig Caroline, in the District Court for the District of Massachusetts (November, 1867), it was held, by Judge Lowell, on the authority of Pratt v. Reed, that the material man had no lien on the

The Brig Eledona.

vessel for the supplies, the evidence being, that the supplies were furnished to her at Boston, she being a foreign vessel, on the order of her master, who was also her owner, under circumstances not sufficient to satisfy the court that the supplies could be obtained only upon a pledge of the credit of the vessel.

Now, in the present case, the mast was necessary for the vessel, but there was clearly no real necessity, and not even an apparent necessity, for pledging the credit of the vessel to procure the mast. The master had the money to pay for the mast, and did pay for it. On the evidence, he paid the party who furnished it to him, and, although the libellant has not been paid for the mast, yet his own negligence is the cause. He could have learned, by the exercise of due diligence, that the master had the means of paying for the mast, and that there was no necessity for pledging the credit of the vessel to pay for it. But he made no inquiry on that subject. It may be that the conduct and language of the master were such, on his interview with the libellant, as to make the master personally liable to the libellant for the value of the mast; but neither the owner nor the vessel is liable. This case is one fully illustrating the propriety of adhering strictly to the rule laid down in Thomas v. Osborn and in Pratt v. Reed. The master had the money to pay for the mast, and did pay for it to the party with whom he contracted for it, and who procured it from the libellant; and, although it may have been furnished by the libellant, under circumstances which led him to suppose that he was furnishing it to the vessel on the direct order of the master to him for it, yet no facts existed which authorized the master to pledge the credit of the vessel to the libellant for the mast. To allow the lien in this case would be to create an unnecessary incumbrance on the vessel, and to open the door for collusion between masters and material

In the Matter of George W. Kimball, a Bankrupt.

men-evils which the law, as expounded in the cases referred to, aims to cure.

The libel must be dismissed, with costs.

DECEMBER, 1867.

IN THE MATTER OF GEORGE W. KIMBALL, A

BANKRUPT.

ARREST OF BANKRUPT UNDER STATE PROCESS.- PRIVILEGE OF WIT

NESS.-Debt CONTRACTED BY FRAUD.

a

Where a suit was commenced against a bankrupt in a State court, the complaint

being simply for goods sold and delivered, but, on affidavits showing a fraudulent contrac of the debt, an order of arrest was issued against him, and he was

arrested : Held, That the bankrupt was not exempt from such arrest, under the twenty-sixth

section of the Bankruptcy Act. The words “ the same,” in that section, refer

to the arrest, and not to the action. But as the bankrupt, when arrested, was on his way to the register's office, for the

purpose of being examined, under an order (Form No. 45) which had been served

upon him:

Held, That that order was substantially a subpæna, and that the bankrupt was

entitled to be considered as a witness; That, as such witness, and also as being a party to the bankruptcy proceedings, he

was entitled to protection from arrest at the hands of any other tribunal; That this court, whose process had been interrupted, had power to give him that

protection, and that he must be discharged from this arrest, on the ground that it was a breach of bis privilege ; but that, as soon as the privilege should cease, he would be liable to be rearrested.

BLATCHFORD, J. This is an application to discharge from imprisonment the bankrupt in this case, who is confined in close custody, in Ludlow-street Jail, by virtue of an arrest made by the sheriff of the city and county of New York. The bankrupt was declared a bankrupt by this court, on the 16th of November, 1867, on the petition of one of his creditors. By the order of

In the Matter of George W. Kimball, a Bankrupt.

adjudication, the case was referred to one of the Registers in Bankruptcy, Mr. Isaiah T. Williams; and Mr. Williams, in pursuance of the authority granted by the Bankruptcy Act, issued an order, under the twenty-sixth section of the Act, according to Form No. 45 of the Forms in Bankruptcy, requiring the bankrupt to attend before him, to submit to an examination, on the 6th of December, 1867. After the bankrupt had been served with this order, and a few moments before the hour appointed for the examination, and while the bankrupt was on his way to the office of the register, and was in the same building in which the office of the register is situated, with the order for such examination upon his person, he was arrested by the sheriff, upon an order of arrest issued as mesne process in a civil suit in the Supreme Court of the State of New York; and he applies now to this court to be discharged from his imprisonment, upon the ground that he was arrested while he was on his way, under the process of this court, to be examined thereunder. There is no statute of the United States, as there is of the State of New York, giving protection to a witness from being arrested in a civil suit, while he is in process of obeying a subpæna, issued from a competent court, for his examination as a witness. I have heretofore decided, that a bankrupt, in all matters relating to his examination under the twenty-sixth section of the Bankruptcy Act, is substantially a witness, and that he is to be examined and cross-examined as a witness, and is enti led to be considered as a witness in all respects. The order, or summons, according to Form No. 45, which is issued and served upon him, commanding him to appear and be examined, is substantially a subpæna. The twenty-sixth section of the Act provides, that the court may require him to attend, upon reasonable notice, and submit to an examination on oath, and that, if he neglects to obey any order of the court, he may be committed and punished as for a contempt of court. He must, therefore, when served

In the Matter of George W. Kimball, a Bankrupt.

a

with such order or summons, be regarded as a witness under a subpæna, and as entitled to the same protection to which any other witness, subpænaed to attend before a court, or an officer of the court, is entitled. He is also a party to the bankrupt proceedings, and is entitled to all the protection which any party to any suit is entitled to under like circumstances. Such protection was decided by the Circuit Court of the United States for the District of Pennsylvania (Hurst's Case, 4 Dallas, 387, and 1 Wash. C. C. R. 186) to be a protection thrown around him by the court from which the subpæna issues. In that case, the party was in attendance at Philadelphia, having gone there from his residence at New York, for the purpose of being present at the trial, in that court, of a suit to which he was a party, and he was also under process of subpæna from that court to attend it as a witness in another suit, when he was arrested at his lodgings, at a tavern in Philadelphia, by a State sheriff, on a capias ad satisfaciendum, issued out of the Supreme Court of Pennsylvania. An application was made to the Circuit Court of the United States to discharge him from imprisonment, and it was granted by Mr. Justice Washington and Judge Peters, holding the court, who decided that the Circuit Court of the United States had competent authority to discharge the party from arrest, because of the breach of his privilege which had been committed, in order that the proceedings of the court might not be impeded ; and that the order for such discharge would be a justification and protection to the sheriff in discharging him. In the present case, as the order or summons was issued by this court, the application is made to it to discharge the party from his imprisonment. Although there is no statute of the United States upon the subject, yet the law is well settled, that a party and a witness is, under such circumstances, entitled to be protected by the court whose process has been interrupted. The plaintiff, at whose

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