In the Matter of John Mansfield and Nathan K. Mansfield, Bankrupts.

itors and inventory of the estate, which is required by section 41, and for these services the attorneys now ask to be paid out of the bankrupts' estate. I incline to the opinion that services performed in preparing the schedules and inventory required by section 41 may be considered as having been rendered for the benefit of the estate, in a case like the present, where the employment of counsel was unquestionably necessary. As to the services made necessary by reason of the arrest of the bankrupt, I think they can also be compensated out of the fund in such a case as this is stated to be. The Court was entitled to be aided by counsel on the part of the bankrupt in the examination as to the foundation for the warrant of arrest and its continuance, and the amount of bail to be required. The injunction having deprived the bankrupt of the means to employ counsel, such services may, without injustice, be considered a part of the bankrupt proceedings. They were made necessary by the action of the creditors, and could only be obtained by a resort to the fund. It would have been more proper for the bankrupt to have applied to the Court in the first instance for leave to employ counsel, and such previous application should be insisted on, as a general rule. Here it may be dispensed with, the mode of proceeding being unsettled and no question made as to the propriety and necessity of the services in question. But I must require that it be made to appear that the bankrupt is now without means, and that there is no reason to doubt that he has surrendered all his property to the assignee. It must also be shown that the efforts of the counsel were not directed towards obtaining delay or hindering the bankruptcy proceedings. This being made to appear, I shall feel inclined to allow a moderate compensation for services rendered in preparing the schedules and inventory, and those made necessary by reason of the warrant of arrest.

If not desired otherwise by the assignee, in order to

In the Matter of Parker & Peck, Bankrupts.

save expense, the facts may be made to appear by affidavits, and the extent and value of the services shown in the same way; but if asked for by the assignee, a reference will be ordered to take proof of the facts.

DECEMBER, 1872.

IN THE MATTER OF PARKER & PECK, BANKRUPTS.

PREFERRED DEBTS.-TAXES.

Bankrupts occupied land under a lease, in which they covenant to pay the taxes on the land. They failed to pay them, and the lessors paid them:

Held, That the lessors were not entitled to claim the amount of such payment, as a preferred debt, under the 28th section of the bankruptcy Act.

BENEDICT, J. I am of the opinion that the payment by the petitioners of taxes and assessments on their own land gives them no right to claim that amount out of the bankrupt's estate as a preferred debt under section 28 of the bankruptcy Act, notwithstanding the fact that the bankrupts were the occupants of the land under a lease in which the lessee covenanted to pay a yearly rent, and "all such taxes, water rents and penalties as shall during said term grow due and payable out of said demised premises." The failure by the lessee to perform this covenant gave the lessors a right of action from the breach thereof, and nothing more. The prayer of the petitioners that their demand be declared entitled to be paid out of the estate of the lessee, in preference to the other creditors, must, therefore, be denied. Upon being properly proved, their demand is, however, entitled to share with the other creditors of the lessee in the distribution of his estate.

The Brig Belle.

DECEMBER, 1872.

THE BRIG BELLE.

PLEADINGS.-SEAMAN'S WAGES.

An admission, in the answer to a libel for seaman's wages, that the seaman shipped for the voyage and performed the service described in the libel, though coupled with a denial that any amount is due to him, and an allegation that the seaman was guilty of smuggling, by reason of which the vessel was subject to penalties and the seaman forfeited his wages, is sufficient, in the absence of evidence, to entitle the seaman to a decree for the amount of his wages.

THIS was a libel by John Armstrong for seaman's wages. The libel alleged that Armstrong shipped as mate on the vessel, and signed articles for a specified voyage at $50 a month, and served on board from January 7th, 1872, to June 3d, 1872, when he was discharged, and there was due him from the vessel $195, payment of which had been demanded and refused.

The answer admitted these allegations, except that it denied that anything was due to the libellant. It further alleged that Armstrong, while he was mate, smuggled segars on shore from the vessel, whereby she became subject to penalties, by which conduct he forfeited his wages.

The case was submitted on the pleadings.

For libellant, Wilcox & Hobbs.

For claimant, Beebe, Donohue & Cooke.

BENEDICT, J. The admissions in the answer are sufficient to entitle the libellant to recover the amount of his claim for wages as stated in his libel, to wit, $195, for which amount, with costs, let a decree be entered.

The Steamship Cortes.

DECEMBER, 1872.

THE STEAMSHIP CORTES.

SEAMAN'S WAGES.-INJURY TO SEAMAN ON BOARD SHIP.-COSTS.

A seaman, who had shipped in New York for a voyage to New Orleans and back, after the vessel had started on her return voyage from New Orleans fell from the yard and broke his arm. The owners of the steamer sent him at once to a hospital, paying his wages till the date of his leaving the ship, and afterwards brought him to New York. The seaman having filed a libel to recover wages for the rest of the voyage, and damages for the injury, the owners of the vessel paid the amount of the wages into Court, which the libellant drew out. Held, that the libellant was entitled to the wages for the rest of the voyage, and as there was no proof or allegation of a tender of the amount, he was entitled to a decree for his costs.

THIS was a libel by William Price, who alleged that he shipped on the Cortes in New York for a voyage to New Orleans and back; that, after the vessel had started on her return voyage, he fell from the yard and broke his arm, and was sent to a hospital in New Orleans, and, after a few days, was brought to New York in another steamer and sent to the hospital in New York; and he claimed to recover $18, a balance of wages due, and $400 damages for the broken arm.

The owners of the steamer answered that they had paid the man up to the time when he left the ship, and were willing to pay him up to the time of the arrival of the Cortes in New York. His claim for damages they denied. And they paid into Court the amount of the wages which they offered to pay.

For libellant, A. Nash.

For claimant, Man & Parsons.

The Mayor, &c. of New York City v. Hichland.

BENEDICT, J. The libellant having incurred no expenses in his cure is entitled to recover no more than the wages which the claimants have heretofore paid into Court.

In the absence of any proof or allegation of a tender of this or any sum, the libellant is also entitled to his taxable costs. The sum paid into the registry having been heretofore withdrawn by the libellant, he is now entitled to a decree for his costs only.

Southern District of New York.

JANUARY, 1873.

THE MAYOR, &c. OF NEW YORK CITY v.
WILLIAM HICHLAND.

A libel to recover damages for injury to a pier by overloading it, which states that the pier is within navigable waters from the ocean and within the ebb and flow of the tide, and does not show that the pier is part of the land, is not liable to exception, as failing to state a case within the jurisdiction of the admiralty.

THE libel in this case alleged that the libellants were owners of Pier 46, East river, in the city of New York; that the pier was within navigable waters from the ocean, and within the flow of tide water; and that the respondent was the owner of the bark Maggie L. Carvill, which, while lying alongside such pier, negligently discharged cargo on the pier and damaged it to the amount of $10,000. The respondent excepted to the libel, because the cause of action was not of admiralty cognizance.

BT. VOL. VI.-19