In the Matter of Peter Rado, an Alleged Bankrupt.

way of the ferry-boat, ought to have stopped and reversed long before she did. There would then have been no collision. It is also insisted that the ferry-boat should have slowed, stopped and backed before she did. But she would have been in fault if she had done so, especially after the single blast in response from the propeller, which indicated that the propeller expected the ferry-boat to keep going on in the course she was on.

It was conceded by the counsel for the propeller, in argument, that, if the propeller had paid no attention to the signal from the ferry-boat, and had kept on her course without slackening her speed or porting her helm, there would have been no collision. The propeller was free to choose the means of keeping out of the way of the ferry-boat, and was not bound to port her helm, because of the single blast from the ferry-boat.

There must be a decree for the libellants, with costs, with a reference to a commissioner to ascertain the damages sustained by the libellant.*

W. R. Beebe and J. C. Jackson, for the libellants.

C. Van Santvoord, for the claimants.

NOVEMBER, 1872.

IN THE MATTER OF PETER RADO, AN ALLEGED BANKRUPT.

PLEADING. PREFERENCE.

A petition in involuntary bankruptcy, which states the giving to the petitioner of an unlawful preference in respect to the debt, but does not surrender the preferwill be dismissed.

ence,

This decision was affirmed by the Circuit Court, on appeal, in January, 1874.

In the Matter of Richard H. Hinsdale and Edward E. D. Doughty, Bankrupts.

THIS was a petition in involuntary bankruptcy, which set forth a debt due to the petitioners, for tobacco sold and delivered by them to the bankrupt, to the amount of $2,027 16, and alleged that on account of that he had returned to them tobacco worth $1,140 10, at such a time as to make such return an unlawful preference of their debt to such amount.

For the petitioners, R. S. Newcombe.

For Rado, Peter Cook.

BLATCHFORD, J. The petitioners, having accepted an unlawful preference in respect of the debt set forth in their petition, cannot maintain the petition, so long as they do not, by the petition, surrender such preference. An opportunity will be allowed them to move, on notice, for leave to amend the petition in that respect. If no such motion is made, the petition must be dismissed.

NOVEMBER, 1872.

IN THE MATTER OF RICHARD H. HINSDALE AND EDWARD E. D. DOUGHTY, BANKRUPTS.

REGISTER'S FEES.-SECOND MEETING.-TRUSTEE.

If a trustee, who has been appointed under the 43d section of the bankruptcy Act, call a second general meeting of the creditors, the fees of the register incident to such meeting are not chargeable against the estate.

THE register in this case certified to the Court that the property of the bankrupts had been, pursuant to the

In the Matter of Walter S. Derby, a Bankrupt.

43d section of the bankruptcy Act, conveyed to a trustee, to be distributed under the direction of a committee of the creditors; that the question had arisen whether the estate was liable for the fees of the register incident to a second general meeting of the creditors; and that, in his opinion, the estate was not so liable.

BLATCHFORD, J. Assuming, though it is not so stated in the certificate of the register, that the second general meeting was called by the trustee, I find in the Act no authority or direction for the calling of such meeting by the trustee. I see nothing, therefore, in the facts certified that can warrant the charging against, or paying out of, the estate of the bankrupts, the fees of the register upon or incident to such meeting.

NOVEMBER, 1872.

IN THE MATTER OF WALTER S. DERBY, A BANKRUPT.

JURISDICTION.-INFANT.-RATIFICATION.

Infants, in respect to their general contracts, are not embraced within the provisions of the bankruptcy Act, as subjects of either voluntary or involuntary bankruptcy.

On the 7th of December, 1871, a petition in involuntary bankruptcy against D. was filed by S., who alleged, as the act of bankruptcy, the making by D. of a chattel mortgage to B. A. & W., on November 14th, 1871, he being then insolvent. D. was adjudged a bankrupt, and an assignee was appointed. On the 1st of December, 1871, an action was commenced in a State Court by P., as guardian ad litem of D., as an infant, against B. A. & W., to recover for an alleged conversion by them of the goods covered by the chattel mortgage. The assignee in bankruptcy, after his appointment, filed a bill in equity against B. A. & W. to recover for the alleged conversion of the same goods. Thereupon

In the Matter of Walter S. Derby, a Bankrupt.

B. A. & W., in April, 1872, filed a petition in the bankruptcy Court, praying that the adjudication of bankruptcy against D. might be set aside, allegi' g, among other things, that D. was an infant when the petition was filed against him, which fact was, on a reference, established to be true. On the hearing, D., who had now become of age, presented a petition praying, among other things, for the confirmation of the bankruptcy proceedings against him:

Held, That B. A. & W. were in a position to entitle them to ask the interposition of this Court to vacate the adjudication;

That, as D. was an infant at the time of the filing of the petition, the Court had no jurisdiction to make the adjudication;

That the petition filed by D., after he came of age, for a confirmation of the bankruptcy proceedings, could not give the Court jurisdiction;

That, as D. was an infant, the giving of the mortgage to B. A. & W. was not an act of bankruptcy, because it was not an absolute transfer, but was subject to his election to affirm or disaffirm it when he came of age;

That the adjudication, and all the proceedings had thereupon, must be vacated.

BLATCHFORD, J. On the 7th of December, 1871, Frederick Stevens filed in this Court a petition in involuntary bankruptcy against Walter S. Derby. The debt set forth in the petition was alleged to be for goods sold to Derby in October and November, 1871. The act of bankruptcy alleged was the execution by Derby, while insolvent, on the 14th of November, 1871, to the firm of Barton, Alexander & Waller, of a chattel mortgage, to secure a claim of $2,100, payable on demand, of his entire stock of goods and the fixtures in his store, with intent to give a preference to them, of which mortgaged property, it was alleged, they took possession three days afterwards. On the petition, an order to show cause was issued, returnable December 16th, 1871. On proof of the service of the order and of a copy of the petition on Derby on the 9th of December, 1871, an adjudication of bankruptcy was made against him on the 18th of December, 1871, to which day the matter had been adjourned. The proof of service was to the effect that the person making it went to the dwelling-house which was the last and usual place of abode of Derby in this District, and rang the door bell; that a woman of mature age came to the door, who appeared to be, and acted as if she was,

In the Matter of Walter S. Derby, a Bankrupt.

mistress of the house; that the person inquired for Derby by his full name; that she answered that he was not in, and declined to give any further information concerning him; and that the person then delivered to and left with her a copy of the petition and of the order, and stated to her that they were for Derby. Neither on the return day, nor on the adjourned day, did Derby appear, although called in open Court, and the Court was not advised that he was not of full age. The case was referred to a register, and a warrant was issued, and Frederick Dodsworth was elected assignee.

On the 5th of April, 1872, the said Barton, Alexander & Waller filed in this Court a petition, setting forth the execution of the mortgage to them by Derby, on a part of his stock, to secure $2,199 40, due for the purchase money of the greater portion of the mortgaged goods; that the mortgage was not taken in violation of the bankruptcy Act, or to obtain a preference; that, on the 27th of November, 1871, Derby carried away and converted to his own use all his stock and goods, except some show cases and rubbish, which rubbish the petitioners afterwards sold under their mortgage, but realized nothing above expenses of sale; that, on the 1st of December, 1871, one Purdy, as guardian ad litem of Derby, as an infant, appointed by a State Court on the 29th of November, 1871, brought a suit in that Court against the petitioners, to recover $4,000, as damages for the alleged conversion by them of the goods covered by the mortgage, claiming that the mortgage was void by reason of the infancy of Derby; and that said cause proceeded to an issue on the 12th of March, 1872, by complaint, answer, and reply, and was still pending. The petition then sets forth the filing of the petition in bankruptcy, and the issuing of the order to show cause, and alleges that said order was not left at the last or usual place of residence of Derby; that Derby did not reside, at the time, at the house where it was left; that the party serv