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creditor, so that, at the time of the and in due course of such suit it was
passage of the Bankruptcy Act, no pro- delivered to the plaintiffs, and a war
ceeding was pending in that suit except rant in bankruptcy having been issued
the appeal from the order above men- in proceedings against D., the marshal,
tioned, and thereafter the judgment under such warrant, took the property
debtor filed his petition in bankruptcy from the plaintiffs' possession, and de-
and obtained an order from the Banki. livered it to the assignee in bankrupt-
ruptey Court that the creditors show cy, and they applied on affidavits for
cause why they should not be re- an order directing the assignee to de-
strained from enforcing their claim, liver it back to them:
with a stay of proceedings meantime, Held, That the case was not one of
and before the order to show cause any conflict between the marshal and
was returnable, the appeal in the the officers of the State Court ;
State Court above referred to was That the remedy of the parties was
called in its order and dismissed by by a suit against the marshal or the
the plaintiffs' attorney, he having had assignee, or by bill in equity or peti.
notice of the stay granted by the tion;
Bankruptcy Court, and a motion was That the motion must be denied,
thereupon made for an attachment but that the assignee should make no
against the judgment creditor and his disposal of the property for ten days,
attorney for disobedience of the stay: to enable the parties to take proceed.

Held. That as that appeal, if suc- ings to protect themselves. David-
cessful, would not have affected the son's Case,

506
judgment which had been recovered
against the bankrupt, or replace the 48. Where a proof of debt was filed, the
money which had been paid to the

debt being for unliquidated damages,
creditor, or give the assignee in bank-

and the creditor made no application

to have the amount fixed by an assess.
ruptcy any right which he would not
otherwise possess, the dismissal of the

ment, and the bankrnpt objected that
appeal could not be said to be a viola-

the debt was not duly proved :
tion of the order of this court forbid-

Held, That the objection was well

taken, and that the court was not
ding proceedings to enforce the plaint-

called on to order an assessment of
iff's claim. Hirsch's Case, 494

damages, unless the creditor applied
45. In proceedings in involuntary bank-

for it, Clough's Case,
ruptcy, no replication is necessary to 49. Where creditors had filed proof of
the denial by the debtors, according

debt in a bankruptcy proceeding, al.
to Form No. 61, of the allegations of

leging that the debt was contracted
the petition. Dunham & Orr's Case,

by fraud, and, on the examination of
488

the bankrupt, proposed to inquire as
46. Where an application was made to

to the facts constituting the alleged
a register verbally, by a creditor who

fraud :
had proved his debt, for an order for Held, That the inquiry was irrel-
the examination of the bankrupt, and

evant. Wright's Case,

509
the register held that the application 50. After the examination of a bankrupt
was insufficient:

has commenced under an order applied
Held, That such application ought
to have been made on petition or affi-

for by the assignee, the order will not

be vacated, because it was not applied
davit, duly verified, showing good for on affidavits. JcBrien's Case, 513
cause for the granting of the order.
Adams' Case,

See BANKRUPTCY.
503

Costs, 1, 2.
47. Where property had been levied on

by the sheriff as the property of D.,
and was duly taken from his posses

S
sion in a suit of claim and delivery
brought in a State Court by other

SALVAGE.
parties who claimed to own it, and who 1. Where the libellant, who owned some
gave the usual undertaking for its re-
turn, if such return was adjudged,

blocks, let them to parties who were
endeavoring to get off a wrecked ves-

508

sel which they had bought, at Nassau, destruction, attendeď with danger to
N. P., to be used in getting the vessel life, and of unusual severity by reason
off, at so much a day, the vessel to be of the danger to the ship, is not sim-
responsible for the hire and for the ple stevedore's service, and would be
safe return of the blocks:

ground for sustaining an action in
Held, That he had no claim to re- admiralty to recover compensation for
cover, as a salvor, the price ngreed it.
upon, or for the loss of the blocks, The contract to render such services is
either in personam against the parties none the less a maritime contract, be-
who owned the wreck, or against prop- cause the compensation did not depend
erty saved from her;

on the result. The Circassian, 171
That the clause making the vessel
responsible for the blocks and for their 4. Where a bark bound to New York,
hire, did not create any hypothecation which had lost her rudder in a gale,
of her which a court of admiralty can was fallen in with, off the New Jersey
enforce. Squire v. One Hundred Tons coast, by a brig bound to Boston,
of Iron, d'c., and Walter Rahming et which took off from the bark the cap-
al.,

21 tain's wife and family and a sick

sailor, and agreed to keep by her, and
2. Where a railway company received the brig accordingly kept in company

freight in New York, which must be of the bark for six days, at times
carried to New Jersey to be put on towing her, in the course of which
the railroad trains, and had made a the brig lost two hawsers and an
contract with one A. to carry such anchor, and her master had his leg
freight from a dock in the East River and two fingers broken by the towing
to the station in Jersey City, A. agree- hawser, the command thus devolving
ing to assume the ri-k of the trans- on the mate; and on the sixth day
portation across the river, and a barge they made land, which turned out to
belonging to the company, loaded with be Absecom, and thereupon, though
such freight, was transporting it across the wind and weather were favorable
the river, under the direction of A. or for keeping on, the mate ordered the
his employees, the barge, with another hawser, by which he was towing the
barge, being towed by a steamboat, bark, to be cast off, and directed the
and the hawser parted, and the one bark to anchor, and she lay at anchor
barge was left to drift, while the steam- all night; and the next morning, be-
boat took care of the other; and while fore she came back to the bark, the
she was so drifting, a large field of ice latter engaged a tug to tow her to
came up the river, and carried her New York; the bark and the cargo
along with it in such a direction that be ng worth $70,000 or $80,000.
the barge was in imminent danger of Held, That the case was clearly one
being crushed between the ice and a of meritorious salvage service on the
pier above, and thereupon a steam-tug, part of the brig;
on the call of those on board the barge, That the same law which gives to
went to her, and pulled her out of the salvors a reward exceeding any value
ice, and got her into one of the slips, of the labor bestowed, exacts of them
till the field drifted by, the value of all diligence, and is careful to mark
the barge and cargo being from any relaxation of that anxious solici.
$30,000 to $15,000, and of the tug tude for the safety of a vessel in dis-
$10,000, and the service occupying tress, the encouragement of which is
about half an hour :

the object of all salvage reward ;
Held, That the service was a salvage That the action of the mate in not
service;

keeping on with the vessels when off
That the railway company were Absecom, but anchoring the bark, was
personally liable for the salvage; a mistake;

That 8500 was a reasonable salvage, That the court would allow twenty
besides $50 tor injury to a hawser, per cent. of the value of the bark and
Seaman v. The Erie Railway Co., 128 her cargo as salvage, less $3,500, de-

ducted on account of such mistake;
3. Labor in unloading the cargo of a That the court would allow to the

ship, which is on fire and in danger of owners of the brig the expenses in-

curred in performing the salvage, and the schooner had refused to pay moru
one half the remainder, by reason of than $50:
the increased hazard to their vessel Held, That that sum was sufficient,
in consequence of the disabling of the and that the libellants should recover
master;

that sum without costs. That, if the
That the master was also entitled $50 had been tendered or brought
to a liberal portion by reason of his into Court, the Court would have
injuries, and that the mate's share awarded costs to the claimants. id.
must be diminished in consequence of

See Bill of LADING, 2.
his mistake. The John G. Paint and
her Cargo,

BOTTOMRY, 1.
174

SEAMENS WAGES.
5. Where a tow-boat, while towing a

vessel, saw another vessel on fire 1. Where seamen served a few days on
at a wharf, and went to her, and, board a vessel in the port of New
with a steam-pump, helped to put York, but did not sign shipping arti-
the fire out, being delayed in all ticles, and were paid for the time
from three to four hours, and, about they served and were discharged, and
six weeks afterward, without any left the vessel without objection, but
notice to the owner of the vessel libelled the vessel to recover damages
saved, the owner of the tow-boat for the breaking up of a voyage for
filed a libel for himself alone, claim- which, as they alleged, they had been
ing a salvage of seventy-five per cent. hired, and process was issued in their
of the value of the vessel saved : favor against the vessel without their

Held, That, as the owner of the giving security for costs, and the
tow-boat was not personally present claimants applied for an order that
at the service, there could be no they tile security for costs:
award of salvage ' remuneration to iled, That their claim was not a
him ; but, as owner, he was entitled to claim for wages, within the meaning of
an equitable compensation for the use Rule 45 of this court, and that, there.
of his vessel ;

fore, they must file security for costs.
That, as the usual compensation for The Caroline and Cornelia, 105
her services in towing was $10 an
hour, and as she gave the use of her 2. Where a seaman shipped in New
steam-pump, the sum of $150 was York for a voyage to Tampico and
sufficient compensation;

back, and, on the voyage back, the
That, under the circumstances, the vessel put in at Key West for repairs,
award would be without costs. The and, when she was ready to sail, he
Jack Jewett,

464 was not to be found, having gone

ashore, without leare, to get some arti.
6. Where a libel, claiming $1,000 as sal- cles belonging to the vessel, which he

vage, for service rendered by a steam- had previously taken ashore to be
tug in towing a schooner away from washed, and the master shipped an-
a slip where there was a fire, was filed other man in his place and sailed
by the owner of the tug, who was not without him, and he afterward came
personally present when the service to New York, brought the articles to
was rendered:

the vessel, and demanded his wages:
Held, That the case was not one of Held, That, on the facts, the libel-
salvage, but that the libellant was en- lant had no intention of deserting the
titled to reasonable compensation for vessel, and did not desert, so as to in-
the use of his vessel. The Arlington, cur a forfeiture of his wages under

511 the twenty-fifth section of the Act of

August 18th, 1856.
It appearing that the service occupied That, as neither the name of the

but two or three hours, that another seaman, nor the fact that he was ab.
vessel was towed out at the same sent without leave, were entered in
time, that the steam-tug was not di- the log book, the libellant had not
verted from any other occupation, that forfeited his wages under the fifth sec-
her usual compensation was from $10 tion of the Act of July 20th, 1790.
to $15 an hour, and that the master of The Catawanteak,

189

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,

212

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.

SHERIFF.
See Levy,

Lien, 9.
PRACTICE IN BANKRUPTCY, 39.

SUNDAY LAW.
See Collision, 3.

U

UNITED STATES OFFICER.
T

1. A receiver of a national bank, ap-

pointed under the thirty-first section
TOWBOAT AND TOW.

of the National Banking Act (13 Stats.
Where a canal-boat was taken in tow, at Large, p. 99), is an officer of the
with other boats, by a steamboat, at

United States;
Albany, to be towed to the foot of This court, therefore, bas jurisdic-
North Moore street, in the city of New tion of an action at common law,
York, and, on their arrival there, the brought by such receiver (Act of
steamboat ran in near the dock to drop March 3d, 1815, sec. 4), to collect a
off the canal-boat, and signalled her

claim which was due to the bank at
to drop off, which she failed to do, and the time of his appointment. Platt,
the steamboat kept on with her, there Reev'r, &c., v. Beach,

303
being many vessels at anchor in the
harbor, leaving only a narrow channel 2. A clerk, appointed by the direction
near the piers, down which the tow

and with the approbation of the Sec-
passed, till near the Battery, when,

retary of the Treasury, for the frac-
owing to the sudden anchoring of two
vessels ahead, the steamboat was com-

tional currency counter of the Trea-

sury Department, at Louisville, is an
pelled to stop, and the canal-boat was

officer of the United States, within the
carried, by a strong northeast wind
and an ebb tide, against pier 2, North

meaning of the Constitution of the

United States, and of the statutes of
river, and sunk, and the owner of the

the United States in regard to officers
cargo filed a libel against the steam-
boat to recover the damages:

charged with the safe keeping of the
public money.

The U. S. v. Bloom-
Held, That the Court of Admiralty

gart,

356
had jurisdiction of the case as one of
a tort committed on navigable waters,
even though both vessels were navi.

USAGE.
gating between ports of the same
State;

See Bill OF LADING, 1.

W

tendered him at the time of the sert.
ice of the summons or subpena.

If there is an adjournment, he is en-
WITNESS.

titled to be paid his attendance fee for
1. A witness in bankruptcy proceedings

the adjourned day, and travel fees, if

it is reasonable for him to return home.
cannot take the opinion of the judge,
on a certificate by a register, or be

If the fees are not paid and the wit-

ness attends, the fees are to be col-
represented by counsel, except in a

lected as in ordinary actions. id.
proceeding against him for contempt.
Fredenbery's Case,

133

4. A bankrupt under examination as a

witness, has no absolute right to con-
2. The wife of a bankrupt, attending un-

sult with his counsel respecting the
der an order, and being examined as

answer to be made to a question pro-
a witness, is entitled to witness and
travel fees, calculated according to the

pounded to him, and to put in, as such
third section of the fee bill Act of Feb-

answer, an answer prepared by such

counsel, as the result of such consulta.
ruary 26th, 1853. Griffin's Case, 209

tion; but he may advise with his coun.
If a witness in bankruptcy proceed-

sel concerning his answers when the

register can see cause therefor. Juil.
ings is, by the adjournments of the ex-

son's Case,

210
amination, obliged to attend at inter-
vals, and it is reasonable for him to 5.: A creditor is not entitled to witness
return home during the intervals, he

fees for attendance under an order that
is entitled to travel fees, at five cents

he be examined as to his debt. ky
a mile, for going and returning each

ler's Case,

414
time, and to $1.50 for each day's at-
tendance.

id.

See ARRE 2.

BANKUPTCY, 11.
3. The fees of a witness must be paid or

PRACTICE IN BANKRUPTCY, 12.

a

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