The Brig Wiley Smith.

schooner took place at a time and in a position when and where the propeller, discovering the fact as soon as she ought to have discovered it, could not avoid the collision. This point I must, on the evidence, resolve in favor of the propeller and against the schooner.

The libel is dismissed, with costs.

D. A. Hawkins, for the libellants.

R. D. Benedict, for the claimants.

OCTOBER, 1872.

THE BRIG WILEY SMITH.

BILL OF LADING.-SALE OF CARGO.-GENERAL AVERAGE.

The master of a vessel, which had been driven ashore by a peril of the sea, and got off, being unable to raise money to pay the salvage claims, sold a portion of the cargo for that purpose:

Held, That the vessel was not liable for non-delivery of such cargo, under the bill of lading;

But that, as the owners of the vessel offered to pay the amount of their contribution in general average, the holders of the bill of lading might recover such amount in this action, on the bill of lading.

THIS was an action by the consignees of a quantity of satin wood and mahogany, to recover for the failure of the brig to deliver part of it, in accordance with the bill of lading which she had given therefor. The owners of the brig set up, that, after the cargo was received on board, the brig was driven ashore by a peril of the sea, and was got off again, but, in doing so, part of the cargo in question was lost, and the vessel and cargo became liable for salvage, which the master was unable to pay, and, being unable to raise it on bot

In the Matter of Theodore E. Baldwin and Edward W. Burr, Bankrupts.

tomry, he was compelled to sell the rest of the cargo in question, and that the vessel was, therefore, not liable for the non-delivery of the cargo; and they offered to pay to the libellants their contribution in general average.

T. Scudder, for the libellants.

W. W. Goodrich, for the claimants.

BLATCHFORD, J. The evidence satisfactorily shows, that the vessel was driven ashore by a peril of the sea, within the exception in the bill of lading, and that, in taking the measures he did to save vessel and cargo, including the throwing overboard of such cargo as was lost thereby, and in selling what was saved from the cargo, the master acted in good faith, and under a sufficient necessity, for the best interests of all concerned, and with reasonable discretion. The libellants must, therefore, fail in their claim on the bill of lading, but they are entitled to avail themselves of the offer in the answer, made by the claimants, to pay their contribution in general average.

OCTOBER, 1872.

IN THE MATTER OF THEODORE E. BALDWIN AND EDWARD W. BURR, BANKRUPTS.

CONTRACTING.-PROOF OF DEBT.

On the petition of a creditor, showing that he and the assignee objected to the claim of B., another creditor, an order was made referring it to a referee to examine into the facts. Before any evidence was taken before the referee, the assignee appeared before the referee and objected to the proceedings, on the

In the Matter of Theodore E. Baldwin and Edward W. Burr, Bankrupts.

ground that, since the assignee was elected, B. had made proof of his claim in form satisfactory to the register, and that the proof had been delivered to the assignee, and registered by him, and that, since the election of the assignee, the petitioning creditor had not renewed his objection, and the assignee had never objected to the claim. B., however, insisted upon proceeding with the reference:

Held, That the reference should not have been proceeded with, and that the order of reference should be vacated, leaving the parties to pay their own costs and expenses.

BLATCHFORD, J. However proper the order of reference of the 10th of February, 1872, may have been, on the assumption, that, prima facie, from the facts set forth in the petition on which it was made, the petitioning creditor and the assignee objected to the claim of Brewster, yet, when, before any testimony had been taken under the order of reference, the assignee appeared before the referee and objected to all proceedings under the order, on the ground that, since the assignee was elected, Brewster had made proof of his claim in form satisfactory to the register, who had received the same, and that the proof had been delivered to the assignee, and duly registered by him, and that, since the assignee was elected, the petitioning creditor had not renewed his objection to the proof of such claim, and no other creditor had made any objection to it, and that the assignee had never made any objection thereto, the reference should not have been proceeded with on the part of Brewster. There was no occasion for proceeding with it. The expense of proceeding with it was needlessly incurred. Nothing done in the course of it, after that, could bind the assignee. He did not afterwards appear on the reference, or produce any witnesses, or cross-examine any of the witnesses produced by Brewster. The original order of reference was granted ex parte, without due notice to the assignee, and only authorized the referee to take, on due notice to the proper parties, proof of the claim of Brewster, and such proof as might be offered in opposition thereto. When, in re

In the Matter of Theodore E. Baldwin and Edward W. Burr, Bankrupts.

sponse to a notice, the assignee then appeared, and made the objection he did, in the terms above stated, the reference ceased to be one to which the assignee and the creditors generally of the estate, represented by him, could be considered as parties, so as to bind him and them as parties, or make him or them responsible for any expenses of the reference, if the assignee thereafter took no part in the proceedings. On such objection being made by the assignee, Brewster ought to have brought the matter before the Court for instructions. Not having done so, he took the risk of going on. The entire aspect of the case, as it stood when the order of reference was made, on the facts set forth in the petition of Brewster, was changed, by the statement of the assignee that he had never objected to the proof of debt of Brewster, and had registered it as duly proved, and that no objection had, since the election of the assignee, been made to the proof of the claim, by any creditor. It was not the duty of the assignee to bring the matter before the Court. He was not a party to the order of reference, and he discharged his entire duty by making the objection he did. The Court must now do what it would have done, if, on the making of such objection by the assignee, the matter had been brought to its attention. It would have vacated the order of reference. There would have been no propriety in permitting the reference to proceed as between Brewster and the petitioning creditor, when it could not proceed as between Brewster and the body of creditors represented by the assignee. Although, where one creditor applies for an investigation, under section 22, of the claim of another creditor, it may be proper to hold the latter bound, as respects all the creditors, by the result of the investigation, yet, where, as in this case, a creditor applies for the investigation of his own claim, and the assignee, in response, says he has received proof of the claim, and registered it, and has never objected

Nine Thousand Six Hundred and Eighty-one Dry Ox Hides, &c.

to it, it is not proper to permit an investigation of it to be had, as between such creditor and another creditor, against the objection of the assignee, when the estate cannot be bound by the result..

The order of reference is vacated, leaving the parties respectively to pay their own costs and expenses.

J. K. Murray, for Brewster.

T. M. North, for the assignee.

Eastern District of New York.

OCTOBER, 1872.

NINE THOUSAND SIX HUNDRED AND EIGHTYONE DRY OX HIDES, &c.

FREIGHT.-WEIGHT BY INVOICE.-EXPENSE OF WEIGHING.--COSTS.

The owner of a bark filed a libel against her cargo of hides to recover freight. The hides were shipped in Buenos Ayres, to be delivered at New York on pay. ment of freight at so much per pound. They arrived in good order, and were tendered to the consignee, to be delivered on payment of $1,515 79, freight. This amount was arrived at by taking the weight stated in the invoice and entry presented by the consignee at the Custom House on his entry of the goods. The bill of lading did not state any weight. As the consignee refused to pay the amount claimed, the owner of the ship filed a libel against the hides to recover the freight, and the consignee gave a stipulation for value, and took them. On the trial, the consignee proved an actual weighing of the hides after they were delivered, in accordance with which the freight would be $1,417 01: Held, That, in the absence of a statement of weights in the bill of lading, the ship was entitled to freight only on the weight delivered, and that the weight stated in the invoice and entry was not conclusive on the consignee;