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or

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dictment, have been convicted of the

L
offence embraced in the later one, and
whether the evidence necessary to sup-
port the later indictment was suffi-

LEVY.
cient to produce a legal conviction on the receipt by a sheriff of a second ex-
the earlier one. The United States v.

ecution after a levy made, operates as
Christopher Flecke, John Flecke and

456
Henry Hildebrand,

a constructive levy under the second
execution, and an actual levy under it

is unnecessary. Smith & Sinith's Case,
8. Where property was seized as for.

432
feited for an alleged violation of the
Internal Revenue Law, and, in the suit

LIEN.
brought to enforce the forfeiture, a
motion had been made to bond the 1. Where the libellant furnished a mast
property, which had been denied, and

for a foreign vessel in the port of New
thereupon a mortgagee intervened,

York, supposing that the master of the
and made an application on his own

vessel was ordering it for the vessel,
behalf to bond the property:

and rendered a bill against the vessel
Held, That the mortgagee stood in

and owners on the same day that he

furnished it, but had made no inquiry
no better position, in relation to the

and received no information as to
alleged forfeiture, than the mortgagor;

whether the vessel needed the mast,
That it was the thing itself which
was forfeited by the statute in ques-

to whether the master had
tion, and not the right, title, and in-

means or credit, or as to whether it
terest of the mortgagor;

was necessary for him to obtain it on
That the motion must, therefore, be

the credit of the vessel ; and where it
denied. England & Evans' Distillery,

appeared that the master had at the
486

time means to pay for the mast, and

had contracted with parties other than
See BANKRUPTCY, 31.

the libellant to furnish the mast, and
INFORMER

actually paid them for it on the day it
was put into the vessel :

Held, That there was neither a real
nor an apparent necessity for pledging

the credit of the vessel, and that the
J

libellant, therefore, had no lien on the

vessel ;
JUDGMENT.

That the twelfth Admiralty Rule of

the Supreme Court was only intended
Bona fide judgments entered against a

to regulate the practice of joining
bankrupt before a petition in bank-

ship, freight, owner, and master in
ruptcy is filed against him are liens on

one suit; and that the question of the
the real estate of the bankrupts, as

right to sue ship, or freight, or master,
against the assignee in bankruptcy,

or owner, for supplies or repairs, does
and come within the saving clauses of

not depend on the twelfth Rule, but
sections fourteen and twenty of the

on the general Admiralty and Mari-
time Law. The Eledona,

31
Bankruptcy Act. Smith & Smith's
Case,

432

2. The fact that a vessel which is re-
See BANKRUPTCY, 1, 2, 6, 8, 13,

paired or supplied is not in her home
18, 22, 27.

port, in the absence of other circum-
stances, makes a case of apparent ne-

cessity for the credit of the vessel.
JURISDICTION.

This apparent necessity may be

dispelled by proof of other circum-
See BANKRUPTCY, 16.

stances, showing that the necessity for
CONSUL.

the credit did not exist, and did not
PLEADING, 6.

appear to the material man to exist,
Tow-BOAT.

at the time of his employment.
UNITED STATES OFFICER, 1. An agreement for delay of payment,

in most cases, is additional evidence | 6. Where articles are furnished toward
of the existence of an apparent neces- the building of a vessel, no lien for
sity for the credit of the vessel.

their value is given by the general
An agreement to do the work on maritime law. The Antelope, 405
the personal credit of an agent of the
vessel, would be sufficient to defeat 7. Where a vessel was built at New-
the claim of the material man against burgh, New York, in 1855, and arti-
the vessel.

cles were furnished by the libellant
The existence of such an agreement there for such building, and the vessel
is a fact which must be clearly proved. left Newburgh and went to New York
The Washington Irving,

318 city, and the libellant then filed his

libel, in 1855, to recover the value of
3. Where the agent of a vessel, some the articles :

months after repairs were done on her, Held, That he had no lien under the
and after part payment, gave a draft lien law then in force in the State, be-
on a third party for the remainder,

cause he had not filed specifications of
which was never paid or accepted, his lien within twelve days after the
and was surrendered on the trial:

vessel left the port of Newburgh, as
Held, That that did not amount to

was required by such lien law;
payment, nor did it go to show that

That he had no lien otherwise, and
the agreement for the work looked to

the libel must be dismissed. id.
the personal credit of the agent alone.

id. 8. Where a vessel had been libelled by
4. In an action against a vessel for supplies an owner of cargo, shipped on board
furnished to her in a foreign port,

and sold by her master for the neces-
where the libel alleged that they were

sities of the vessel, and was condemned
furnished on her credit, and the an-

by default and sold, and the proceeds
swer denied that they were furnished

were insufficient to pay the libellant's
on the request of the owner, or the

claim, and thereafter å material-man,
credit of the vessel, and averred that

who had furnished supplies to the ves-

sel before the sale of the cargo, ap-
the owner was in good credit in the
foreign port:

plied to stay proceedings and open the
Held, That the admission that the

default as to him:
vessel was in a foreign port, was an

Held, That the lien for the cargo
admission of an apparent necessity for

sold was prior to that for the materials
the credit of the vessel;

previously furnished;
That, on the plearlings, the only

That the owner of the cargo, there.
question was whether the supplies

fore, ought not to be put to the expense
were furnished. The Washington Irv-

of contesting the material-man's claim,
ing,

323 and that the petition must be denied.

The Proceeds of the Grapeshot, 527
5. Where repairs were furnished in

April, 1866, at New Brunswick, N. J., 9. A sheriff has a lien on property cov.
to a canal-boat, whose owner resided ered by an assignment in bankruptcy,
at Albany, N. Y.; and no steps were for fees under an attachment previous-
taken to enforce a lien upon the boat ly issued and served up to the date of
for the repairs until August, 1867, al- the assignment, but no farther. Hous-
though the vessel was several times at berger & Zibelin's Case,

504
New Brunswick in the intervening

See ASSIGNMENT, 2, 3.
period; and where the then owner,

CHARTER Party, 1.
after the repairs were made, had mort-

FREIGHT.
gaged the boat, and she was sold, un-

SALVAGE, 1.
der that mortgage, to a bona fide pur-
cbaser, who claimed her in the suit
brought to enforce the material-man's

M
lien :
Held, That the lien had been lost by

MARKET VALUE.
the failure of the libellant to enforce
it for so long a period. The John See DAMAGES, 3.
Love,

394

IMPORT ACTS, 2, 3, 4.

MASTER.

does not aver that the false swearing
See BOTTOMRY, 1, 2.

was willful, and that the fact was s
LIEN, 5.
material one.

id.
MORTGAGE.

4. An allegation that the bankrupt " is

entitled” to certain real estate is a
A strict foreclosure of a mortgage is a sufficient specification to show that

payment of the debt. Sugory v. Wise- the bankrupt has been guilty, under
man,

240 section twenty-nine, of negligence in
See BANKRUPTCY, 30.

delivering to the assignee property
FRAUDULENT NATIONALITY.

belonging to him.
INTERNAL REVENUE Acts, 7.
PRACTICE IN ADMIRALTY, 7.

6. Where a petition in involuntary

bankruptcy alleged that the delitor
had, “in contemplation of bankrupt-

cy,” given a confession of judgment,
P

but it did not allege that the act was

done when the debtor was insolvent,
ÞARTIES.

an adjudication could not be made
The only parties to bankrupt proceed.

upon it as it stood, but inasmuch as

the fact that he was insolvent ap-
ings are the bankrupt and the credit-
ors. Fredenberg's Case,

133

peared, and there was no surprise op

the debtor, the case was a proper one
See PRACTICE IN ADMIRALTY, 3. for an amendinent of the petition in

that particular. Craft's Case, 214
PASSENGER ACT.
The provisions of the second section of 6. Where a suit at common law was
the Passenger Act of March 3d, 1855

brought against the defendant, a for-
(10 U. S. Suut, at Larye, 715), do not

eign consul, the declaration being in

debt, on a bond for $40,000 executed
apply to steamships. The Manhat-

by the defendant to the plaintiff, Sep-
tan,

88

tember 30th, 1851; and the defend-
PAYMENT.

ant's plea set up that the bond was
See LIEN, 3.

secured by a mortgage on lands in
PLEADING, 6.

Virginia, conditioned that, if the bond

were not paid, the plaintiff might
PLEADING,

enter into the lands and sell them,

and retain his debt out of the pro-
1. Specifications of opposition to a dis- ceeds, and that, on the 6th of April,

charge, under section thirty-one of 1858, after the debt became due, the
the Bankruptcy Act, and General Or- plaintiff did enter on the lands, they
der No. 24, must be as specific as the exceeding in value the amount of the
grounds for avoiding a discharge after debt, to sell and dispose of them, and
it is granted, required by section that he might have sold and disposed
thirty-four of the Act. The allega- of them, and paid his debt, but, in-
tions must be allegations of fact, and stead of so doing, he had remained in
must be distinct, precise, and specific, possession, whereby the debt was
so as to advise the bankrupt what paid and satisfied; and the plaintiff
facts he must be prepared to meet replied to the plea, setting up that
and resist. Rathbone's Case, 138 the defendant, on the 4th of July,

1855, filed a bill in Chancery, in a
2. An allegation that a statement in State Court in Virginia, against the

one of the bankrupt's schedules was Buckingham Gold Company, alleging
false is insufficient. Such a state. that he, as owner of the lands subject
ment must be willfully false to afford to the mortgage, had contracted to
ground of objection.

id, sell the lands to them, and they had

taken possession, but had not paid the
3. An allegation that the bankrupt price, and praying a sale of the lands

falsely testified as to a certain matter by decree of the court, and afterward
on his examination is insufficient, if it filed a supplemental bill against the

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plaintiff, praying that he might be to prevent its coming into the hands
made a party, and that afterward, in of the assignee:
June, 1857, after default in the pay- Held, That they were too vague,
ment of the mortgage, the plaintiff and should have specified the prop-
filed a bill, in the nature of a cross- erty. Mawson's Case,

332
bill in chancery, in the same court,
against the defendant and others, for 8. A specification stated that the bank.
the purpose of selling the premises to rupt had procured the assent of cer-
pay the debt, and the defendant ap- tain named creditors to his discharge,
peared and answered the bill, and but did not state that such assent
afterward the bills came on to be was procured by a pecuniary consid-
heard together, and the court made a eration or obligation.
decree of sale, under which the lands Held, That it was insufficient. id.
were sold to the plaintiff, leaving a
deficiency of $18,399, and that the 9. The same specification stated that
plaintiff's entry into the land was the bankrupt bad influenced the ac-
under that sale, and not otherwise ; tion of “the said creditors,” since the
and the defendant rejoined, (1.) That filing of his petition, by a pecuniary
the court in Virginia bad no jurisdic- consideration and obligation:
tion of the cause, inasmuch as the de- Held, That it was sufficient. id.
fendant was a foreign consul; and,

See Bill of LADING, 8.
(2.) That the plaintiff's bill in that

Collision, 16.
court was not a cross-bill; and the

Consul, 1.
plaintiff demurred to the rejoinder:

Costs, 4.
Held, That the court of Virginia

INTERNAL REVENUE Acts, 6.
had jurisdiction of the suit brought

LIEN, 4.
by the defendant; but that the suit

PRACTICE IN ADMIRALTY, 5.
brought there by the plaintiff was

BANKRUPTCY, 13,
not a part of the defendant's suit, but

14, 22, 23, 37.
was an original suit, and therefore

SEAMAN's Wages, 3.
not within the jurisdiction of that
court;
That the first rejoinder was there-

PORT.

See CHARTER PARTY, 4.
That the second rejoinder was bad,
it averring that the bill of the plaint-

POWER OF THE COURT.
iff was not a cross-bill, whereas the
replication averred that the bill was 1. The court has power, if a bankrupt
in the nature of a cross-bill;

is arrested in violation of the twenty-
That a strict foreclosure of a mort. sixth section of the Act, to release
gage is a payment of the debt, but the him from imprisonment, by habeas
entry alleged in the defendant's plea corpus, under the Act of February 5th,
was not a strict foreclosure, but an 1867 (14 U. S. Stat, at Large, 385).
entry to sell and pay the plaintiff's Glaser's Case,

180
debt; and such an entry was no de-,
fence to the bond;

2. Whether a Bankruptcy Court has
That the defendant's plea was, there- power to enforce the protection of the
fore, bad; and that," although the bankrupt against suits pending out-
plaintiff bad replied to it, the defect side of the district, and brought by
was not cured thereby, and the plaint- parties residing and being outside of
iff was, therefore, entitled to judg- the district, or how obedience to its
ment. Sagory v. Wissman, Adminis- orders is to be enforced outside of the
trator, &c.,

240 district, Quere? Hirsch's Case, 494
7. Specifications of opposition to a bank- 3. Where bankruptcy proceedings had

rupt's discharge were filed, which been commenced and were pending in
stated that he had concealod part of Louisiana, and, thereafter, à suit was
his estate, and had not delivered all commenced against the bankrupts, in
his property to the assignee, and had a court of the State of New York, to
made a travsfer of part of his property

collect a debt provable in bankruptcy,

fore good;

and the bankrupts applied to this ceedings, and it appeared that he had
court, on petition, for an injunction not passed upon the matter, the mo-
staying proceedings in that suit until tion would be denied.

id.
the close of the bankruptcy proceed-
ings in Louisiana:

3. A suit to recover damages for a col-
Held, That a District Court of the lision cannot properly be brought
l'nited States had no power to grant against a vessel in rem, and her own-
such relief, independently of the Bank- er in personam, unless her owner is
ruptcy Act :

also master.
That no such power was conferred All the owners of a vessel injured
on any District Court, by the Bank- by a collision should be joined as li-
ruptcy Act, except that one in which bellants. The Propeller Richard
the bankruptcy proceedings were Doane,

111
pending. Richardson's Case, 517
See ARREST, 3.

4. Where an application was made for

a commission to examine a witness in
PRACTICE IN BANKRUPTCY, 17.

the East Indies, it appearing that no

one was known who could be named
PRACTICE.

as commissioner, except the wife of

the witness, she was named as com-
1. IN ADMIRALTY.

missioner. The Ship Norway, 121
1. The proceedings, on a reference to a

commissioner to compute damages, 5. Where a libel had been dismissed on
are to be conducted in the usual man- exception, but leave had been given
ner in which they are conducted be- to amend, and a new libel was filed
fore a referee or a master in chancery. setting out a valid cause of action, but
The Ship E. C. Scranton,

81 adding a second cause of action,

which was substantially a repetition
2. Where, on such a reference, the libel. of the first libel which had been dis-

lant was examined and partially cross- missed :
examined, and the libellant's counsel, Held, That this was an irregular
claiming that the cross-examination and improper mode of pleading, and
had been closed, refused to produce the libel must be dismissed, as not
the libellant for further cross-examin- within the spirit of the order giving
ation, and thereupon the claimants leave to amend. The Circassian, 171
applied to the court for an order stay-
ing all proceedings before the com- 6. Where a possessory libel was filed
missioner until the libellant was so by one B., claiming to be the owner
produced, but it did not appear that of a propeller, and that she had been
the matter had been in any way taken from him by H. and others, and
brought up before the commissioner: process was issued against the pro-

Held, That where important ques- peller, and against such persons, un-
tions as to leading principles arise on der which process the marshal, on
a reference, it is proper practice for March 2d, 1868, took possession of
the commissioner to apply to the the vessel, taking her by force from
court for directions, but this is always the representative of H. and the oth-
to be done on his certificate;

ers, who claimed to hold her by bills
That where a commissioner is pro- of sale and mortgages, and, on

March
ceeding irregularlı, or refuses to al- 10th, no appearance having been en-
low necessary testimony to be taken, tered in the cause, the libellant dis-
it is proper to apply to the court, on continued the suit, and the clerk of
a certificate from the commissioner as the court notified the marshal to dis-
to his proceedings, for relief;

charge the vessel from custody, where-
That it is not proper to make such upon the marshal withdrew from the
application to the court unless the vessel, and B., who had been allowed
question is one on which the commis- by the marshal to come on board the
sioner has passed one way or another, vessel, took possession of her, and
or has refused to pass ;

took her out of the district, and there-
That, as there was here no certificate after H. and the others presented a
from the commissioner as to his pro- petition to the court praying that the

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