creditor, so that, at the time of the
passage of the Bankruptcy Act, no pro-
ceeding was pending in that suit except
the appeal from the order above men-
tioned, and thereafter the judgment
debtor filed his petition in bankruptcy
and obtained an order from the Bank-
ruptcy Court that the creditors show
cause why they should not be re-
strained from enforcing their claim,
with a stay of proceedings meantime,
and before the order to show cause
was returnable, the appeal in the
State Court above referred to was
called in its order and dismissed by
the plaintiffs' attorney, he having had
notice of the stay granted by the
Bankruptcy Court, and a motion was
thereupon made for an attachment
against the judgment creditor and his
attorney for disobedience of the stay:
Held, That as that appeal, if suc-
cessful, would not have affected the
judgment which had been recovered
against the bankrupt, or replace the
money which had been paid to the
creditor, or give the assignee in bank-
ruptcy any right which he would not
otherwise possess, the dismissal of the
appeal could not be said to be a viola-
tion of the order of this court forbid-
ding proceedings to enforce the plaint-
iff's claim. Hirsch's Case,
and in due course of such suit it was
delivered to the plaintiffs, and a war-
rant in bankruptcy having been issued
in proceedings against D., the marshal,
under such warrant, took the property
from the plaintiffs' possession, and de-
livered it to the assignee in bankrupt-
cy, and they applied on affidavits for
an order directing the assignee to de-
liver it back to them:
Held, That the case was not one of
any conflict between the marshal and
the officers of the State Court ;
That the remedy of the parties was
by a suit against the marshal or the
assignee, or by bill in equity or peti-
tion;
That the motion must be denied,
but that the assignee should make no
disposal of the property for ten days,
to enable the parties to take proceed-
ings to protect themselves. David
son's Case,
Where a proof of debt was filed, the
debt being for unliquidated damages,
and the creditor made no application
to have the amount fixed by an assess-
ment, and the bankrupt objected that
the debt was not duly proved:
Held, That the objection was well
taken, and that the court was not
called on to order an assessment of
damages, unless the creditor applied
for it. Clough's Case,
sel which they had bought, at Nassau,
N. P., to be used in getting the vessel
off, at so much a day, the vessel to be
responsible for the hire and for the
safe return of the blocks:
Held, That he had no claim to re-
cover, as a salvor, the price agreed
upon, or for the loss of the blocks,
either in personam against the parties
who owned the wreck, or against prop-
erty saved from her;
That the clause making the vessel
responsible for the blocks and for their
hire, did not create any hypothecation
of her which a court of admiralty can
enforce. Squire v. One Hundred Tons
of Iron, &c., and Walter Rahming et
al.,
2. Where a railway company received
freight in New York, which must be
carried to New Jersey to be put on
the railroad trains, and had made a
contract with one A. to carry such
freight from a dock in the East River
to the station in Jersey City, A. agree-
ing to assume the risk of the trans-
portation across the river, and a barge
belonging to the company, loaded with
such freight, was transporting it across
the river, under the direction of A. or
his employees, the barge, with another
barge, being towed by a steamboat,
and the hawser parted, and the one
barge was left to drift, while the steam-
boat took care of the other; and while
she was so drifting, a large field of ice
came up the river, and carried her
along with it in such a direction that
the barge was in imminent danger of
being crushed between the ice and a
pier above, and thereupon a steam-tug,
on the call of those on board the barge,
went to her, and pulled her out of the
ice, and got her into one of the slips,
till the field drifted by, the value of
the barge and cargo being from
$30,000 to $15,000, and of the tug
$10,000, and the service occupying
about half an hour:
Held, That the service was a salvage
service;
That the railway company were
personally liable for the salvage;
That $500 was a reasonable salvage,
besides $50 for injury to a hawser.
Seaman v. The Erie Railway Co., 128
3. Labor in unloading the cargo of a
ship, which is on fire and in danger of
destruction, attended with danger to
life, and of unusual severity by reason
of the danger to the ship, is not sim-
ple stevedore's service, and would be
ground for sustaining an action in
admiralty to recover compensation for
it.
The contract to render such services is
none the less a maritime contract, be-
cause the compensation did not depend
on the result. The Circassian,
171
Where a bark bound to New York,
which had lost her rudder in a gale,
was fallen in with, off the New Jersey
coast, by a brig bound to Boston,
which took off from the bark the cap-
tain's wife and family and a sick
sailor, and agreed to keep by her, and
the brig accordingly kept in company
of the bark for six days, at times
towing her, in the course of which
the brig lost two hawsers and an
anchor, and her master had his leg
and two fingers broken by the towing
hawser, the command thus devolving
on the mate; and on the sixth day
they made land, which turned out to
be Absecom, and thereupon, though
the wind and weather were favorable
for keeping on, the mate ordered the
hawser, by which he was towing the
bark, to be cast off, and directed the
bark to anchor, and she lay at anchor
all night; and the next morning, be-
fore she came back to the bark, the
latter engaged a tug to tow her to
New York; the bark and the cargo
be ng worth $70,000 or $80,000.
Held, That the case was clearly one
of meritorious salvage service on the
part of the brig;
That the same law which gives to
salvors a reward exceeding any value
of the labor bestowed, exacts of them
all diligence, and is careful to mark
any relaxation of that anxious solici-
tude for the safety of a vessel in dis-
tress, the encouragement of which is
the object of all salvage reward;
That the action of the mate in not
keeping on with the vessels when off
Absecom, but anchoring the bark, was
a mistake;
That the court would allow twenty
per cent. of the value of the bark and
her cargo as salvage, less $3,500, de-
ducted on account of such mistake;
That the court would allow to the
owners of the brig the expenses in-
curred in performing the salvage, and
one half the remainder, by reason of
the increased hazard to their vessel
in consequence of the disabling of the
master;
That the master was also entitled
to a liberal portion by reason of his
injuries, and that the mate's share
must be diminished in consequence of
his mistake. The John G. Paint and
her Cargo,
5. Where a tow-boat, while towing a
vessel, saw another vessel on fire
at a wharf, and went to her, and,
with a steam-pump, helped to put
the fire out, being delayed in all
from three to four hours, and, about
six weeks afterward, without any
notice to the owner of the vessel
saved, the owner of the tow-boat
filed a libel for himself alone, claim-
ing a salvage of seventy-five per cent.
of the value of the vessel saved:
Held, That, as the owner of the
tow-boat was not personally present
at the service, there could be no
award of salvage remuneration to
him; but, as owner, he was entitled to
an equitable compensation for the use
of his vessel;
That, as the usual compensation for
.her services in towing was $10 an
hour, and as she gave the use of her
steam-pump, the sum of $150 was
sufficient compensation;
That, under the circumstances, the
award would be without costs. The
Jack Jewett,
464
6. Where a libel, claiming $1,000 as sal-
vage, for service rendered by a steam-
tug in towing a schooner away from
a slip where there was a fire, was filed
by the owner of the tug, who was not
personally present when the service
was rendered:
Held, That the case was not one of
salvage, but that the libellant was en-
titled to reasonable compensation for
the use of his vessel. The Arlington,
It appearing that the service occupied
but two or three hours, that another
vessel was towed out at the same
time, that the steam-tug was not di-
verted from any other occupation, that
her usual compensation was from $10
to $15 an hour, and that the master of
the schooner had refused to pay mor
than $50:
Held, That that sum was sufficient,
and that the libellants should recover
that sum without costs. That, if the
$50 had been tendered or brought
into Court, the Court would have
awarded costs to the claimants. id.
See BILL OF LADING, 2.
BOTTOMRY, 1.
SEAMEN'S WAGES.
Where seamen served a few days on
board a vessel in the port of New
York, but did not sign shipping arti-
ticles, and were paid for the time
they served and were discharged, and
left the vessel without objection, but
libelled the vessel to recover damages
for the breaking up of a voyage for
which, as they alleged, they had been
hired, and process was issued in their
favor against the vessel without their
giving security for costs, and the
claimants applied for an order that
they file security for costs:
Held, That their claim was not a
claim for wages, within the meaning of
Rule 45 of this court, and that, there-
fore, they must file security for costs.
The Caroline and Cornelia,
Where a seaman shipped in New
York for a voyage to Tampico and
back, and, on the voyage back, the
vessel put in at Key West for repairs,
and, when she was ready to sail, he
was not to be found, having gone
ashore, without leave, to get some arti-
cles belonging to the vessel, which he
had previously taken ashore to be
washed, and the master shipped an-
other man in his place and sailed
without him, and he afterward came
to New York, brought the articles to
the vessel, and demanded his wages:
Held, That, on the facts, the libel-
lant had no intention of deserting the
vessel, and did not desert, so as to in-
cur a forfeiture of his wages under
the twenty-fifth section of the Act of
August 18th, 1856.
That, as neither the name of the
seaman, nor the fact that he was ab-
sent without leave, were entered in
the log-book, the libellant had not
forfeited his wages under the fifth sec-
tion of the Act of July 20th, 1790.
The Catawanteak,
3. Where a libel was filed for seaman's
wages, and the answer set up that the
libellant had been paid in full before
suit brought, and had released the
vessel and her master and owners
from all claim by a release under seal,
and the libellant excepted to the an-
swer because the date of the release
was not set forth, nor the time when
it was made, nor the consideration
for which it was given:
Held, That the defence was pay-
ment, and the release was only evi-
dence of it, and it was not necessary
to state its date or consideration, or
when it was given. The Western
Metropolis,
PRACTICE IN BANKRUPTCY, 39.
SUNDAY LAW.
See COLLISION, 3.
That the duty of the steamboat not
to injure the canal-boat did not arise
out of the towage contract, but was
imposed by the law, and she was lia-
ble in the Admiralty for negligent
navigation, amounting to a breach of
such duty;
That that duty was the same after
the boats had passed North Moore
street as before;
That the steamboat was guilty of
negligence in navigating through the
anchored vessels in such a narrow
channel, instead of going out into the
more open part of the harbor. The
sudden anchoring of the vessels ahead
of her was a circumstance which she
should have anticipated. The Brook-
lyn,
547
See COLLISION, 5, 7, 20.
SALVAGE, 5, 6.
UNITED STATES OFFICER.
1. A receiver of a national bank, ap-
pointed under the thirty-first section
of the National Banking Act (13 Stats.
at Large, p. 99), is an officer of the
United States;
Where a canal-boat was taken in tow,
with other boats, by a steamboat, at
Albany, to be towed to the foot of
North Moore street, in the city of New
York, and, on their arrival there, the
steamboat ran in near the dock to drop
off the canal-boat, and signalled her
to drop off, which she failed to do, and
the steamboat kept on with her, there
being many vessels at anchor in the
harbor, leaving only a narrow channel 2.
near the piers, down which the tow
passed, till near the Battery, when,
owing to the sudden anchoring of two
vessels ahead, the steamboat was com-
pelled to stop, and the canal-boat was
carried, by a strong northeast wind
and an ebb tide, against pier 2, North
river, and sunk, and the owner of the
cargo filed a libel against the steam-
boat to recover the damages:
Held, That the Court of Admiralty
had jurisdiction of the case as one of
a tort committed on navigable waters,
even though both vessels were navi-
gating between ports of the same
State;
This court, therefore, has jurisdic-
tion of an action at common law,
brought by such receiver (Act of
March 3d, 1815, sec. 4), to collect a
claim which was due to the bank at
the time of his appointment. Platt,
Reev'r, &c., v. Beach,
1. A witness in bankruptcy proceedings
cannot take the opinion of the judge,
on a certificate by a register, or be
represented by counsel, except in a
proceeding against him for contempt.
Fredenberg's Case,
133
2. The wife of a bankrupt, attending un-
der an order, and being examined as
a witness, is entitled to witness and
travel fees, calculated according to the
third section of the fee bill Act of Feb-
ruary 26th, 1853. Griffin's Case, 209
If a witness in bankruptcy proceed-
ings is, by the adjournments of the ex-
amination, obliged to attend at inter-
vals, and it is reasonable for him to
return home during the intervals, he
is entitled to travel fees, at five cents
a mile, for going and returning each
time, and to $1.50 for each day's at-
tendance.
id.
3. The fees of a witness must be paid or
tendered him at the time of the serv
ice of the summons or subpoena.
If there is an adjournment, he is en-
titled to be paid his attendance fee for
the adjourned day, and travel fees, if
it is reasonable for him to return home.
If the fees are not paid and the wit-
ness attends, the fees are to be col-
lected as in ordinary actions. id.
4. A bankrupt under examination as a
witness, has no absolute right to con-
sult with his counsel respecting the
answer to be made to a question pro-
pounded to him, and to put in, as such
answer, an answer prepared by such
counsel, as the result of such consulta-
tion; but he may advise with his coun-
sel concerning his answers when the
register can see cause therefor. Jud-
son's Case,
210
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