The Bark New York.

I must therefore dismiss the libel for want of preponderating proof of the averments it contains, and it becomes unnecessary to determine the question, whether a tender by a pilot of services, sufficient to afford foundation for a charge of half pilotage, within the meaning of the law, can be made without an actual presence at the side of the vessel sought to be piloted, with the intention and present ability at once to enter upon the service if accepted.

Let the libel be dismissed, and with costs.

For libellant, F. A. Wilcox.

For claimant, Beebe, Donohue & Cooke.

Southern District of New York.

APRIL, 1873.

THE BARK NEW YORK.

COLLISION AT PIER.-PROPER MOORING.-FENDERS.

A canal-boat lying at a pier was sunk by injuries received by her during the night, in consequence of her coming in contact with a bark, which was also moored there. A libel was filed to recover damages for the injury, which alleged negligence on the part of those in charge of the bark, in not putting out fenders between the canal-boat and the bark and in not having the bark properly moored. The evidence showed that the wound on the canal-boat which caused her to sink was such a one as would have been caused by a fender, and that there was nothing on the outside of the bark which could cause the injury except a fender. As to whether a fender was put out or not, the evidence was contradictory:

Held, That, on the evidence, the presence of the fender was proved, and the charge of negligence, in not putting out a fender, was not established;

That the bark was properly moored and out of contact with the canal-boat; that the canal-boat drove against the bark, and the bark then did all that could be required of her, by putting out the fender and keeping it there;

That the bark was not in fault.

The Bark New York,

THIS was a libel by William A. Graham, owner of the canal-boat Elias Tremaine, to recover damages for the sinking of the canal-boat while lying at Pier 62 East river, by a collision between her and the bark New York, which was also moored at the same pier.

For libellant, Scudder & Carter.

For claimant, Beebe, Donohue & Cooke.

BLATCHFORD, J. The libel does not allege that the bark, when moored, was lying in contact with the canalboat of the libellant. It alleges that the bark was moored so negligently, that, at some time during the night, she chafed against, or cut into, the canal-boat, causing her to leak; and that the damage was caused by the negligence of those on the bark, "in that they did not take the proper precautions, nor make use of proper seamanship, in putting down fenders" between the canal-boat and the bark, and making use of proper means to keep the bark from crushing in the side of the canal-boat, and in mooring a vessel so large and heavy in the manner they did alongside of the canal-boat.

The evidence as to the character of the wound found in the side of the canal-boat, and which was under water, shows that it was such a wound as would be made by the pressure of a fender. The evidence also shows that there was nothing on the outer side of the bark which could have made such a wound, or any wound, in the place where the wound was, except a fender. The wound was in the place on the canal-boat where a fender, put over the bark's side in the place where the bark's mate says he put a fender over her side, between the bark and the canal-boat, would have come. This tends to corroborate the testimony of the mate, that he did put such a fender over. He says that, during the evening, the wind commenced blowing fresh; that, between 8 and 9 o'clock in the evening, the stem or bow of the canal

In the Matter of Edward Hagan, a Bankrupt.

boat was driven up under the quarter of the bark; and that he put a fender over between the quarter of the bark and the canal-boat. It is true that the master of the canal-boat denies that the mate of the bark put a fender over. But, unless there was a fender there, it is impossible to see how the canal-boat was injured. If there was a fender there, it is plain that the injury arose from the pressure of the fender. I am satisfied that there was a fender there, and that the injury was thus caused.

The presence of the fender disposes of the allegation in the libel, that the bark was negligent, in not putting down fenders. I am also satisfied that the libellant has not established that there, was any negligence in the manner of mooring the bark, or in respect to the precautions adopted by the bark to keep her from injuring the canal-boat. The weight of the evidence is that the bark was properly moored, and out of contact with the canalboat; that it was the canal-boat that was allowed to move and drive against the bark, and not the bark that was allowed to move and drive against the canal-boat ; and that, when the canal-boat so moved, the bark did all that could be required of her, by putting out the fender and keeping it there.

The libel must be dismissed, with costs.

APRIL, 1873.

IN THE MATTER OF EDWARD HAGAN, A BANKRUPT.

INTEREST ON CLAIMS PROved.

Creditors, who have proved their claims against the estate of a bankrupt, are entitled to interest on their claims from the filing of the petition to the date of payment, if the bankrupt's estate is sufficient to pay the same to all.

Cushing v. Laird.

In this case, the register certified to the Court that, the bankrupt's estate being sufficient therefor, he had directed payment of all claims proved against the estate, with interest up to the date of the filing of the petition; that the payment had been made; that there was enough of the estate left to pay interest on all the claims from that date till the date of payment; and that the bankrupt had objected to this latter payment. Thereupon he certified the question to the Court, with his opinion that the interest should be paid.

BLATCHFORD, J. I concur in the view of the register.

APRIL, 1873.

JOHN N. CUSHING et al. v. JOHN LAIRD, THE YOUNGER.

FOREIGN ATTACHMENT.-GARNISHEES.-EFFECT OF A DECREE IN A PRIZE CASE.--NOTICE TO MASTER.--PARTY.-ESTOPPEL.-PRACTICE. ANSWERS TO INTERROGATORIES.--EVIDENCE.

A libel in prize was filed, in June, 1865, against the steamer Wren, in the District of Florida. The master, S., appeared and filed a claim, as bailee for the owner, alleging that L., a British subject, was the owner, as appeared by the register of the steamer. The District Court condemned the vessel as enemies' property, and a writ of venditioni exponas was issued, and the vessel was sold, and the proceeds were deposited with the Assistant Treasurer of the United States, in New York, subject to the order of the Court. An appeal was taken from that decree to the Supreme Court of the United States, which reversed the decree, and directed restitution of the vessel to the claimant. F. and T., attorneys, in New York, directed and had charge of this appeal, and paid the expenses of it, and obtained the mandate of the Supreme Court. They then obtained a power of attorney from L. and S., authorizing them to collect the pro

Cushing v. Laird.

ceeds of the Wren, and receive the restitution decreed.

After the decree in the Supreme Court, but before the mandate was filed, C. and others, the present libellants, by their proctor, W., filed a libel, in the District Court of Florida, against L., and issued a foreign attachment against the proceeds of the Wren, as his property. F. and T. thereafter employed an attorney in Florida, who filed the mandate and a copy of the power of attorney from L. and S. to them, and entered a final decree in the prize case, directing the payment of the money to L., claimant. The same attorney also entered a special appearance for L., as respondent, in the suit brought by C. and others, and moved to dissolve the attachment. In the mean time, negotiations took place between W., the attorney for C. and others, at New York, and F. and T., looking to a removal of that second litigation to New York, and it was agreed that W. should make no objection to the removal of the fund to New York, and that F. and T. ahould receive it under their power from L. and S., and hold it long enough to enable W. to take such legal steps as he might be advised. Accordingly, instructions to that effect were sent to Florida, the attachment there was dissolved on the entry of an absolute appearance for L., and the funds were paid to F. and T., in New York. Thereupon this suit was commenced by W., for C. and others, against L., and a foreign attachment was issued against these funds in the hands of F. and T., as the property of L., and the funds were duly attached. F. and T. thereupon appeared, on the return of the attachment. Interrogatories to them were filed, to which they filed answers, denying that they had any funds of L. in their hands, and setting up, that, before the commencement of the prize suit, the Wren had been sold by L. to one P.; that they had acted, in all that they had done, as attorneys for P., and had never been retained by L., and that the proceeds in question were the property of P., and not of L. This issue being brought to trial, the libellants offered in evidence the complete record in the prize case, and the record in the other suit in the Florida Court, and proof of the agreement between W. and F. and T. F. and T. then offered in evidence their own answers to the libellants' interrogatories, and a bill of sale of the Wren from L. to P., dated and recorded before the commencement of the prize suit, and proof of their retainer by P., and not by L. P. was a member of the firm of Fraser, Trenholm & Co., agents of the Confederate States, at Liverpool: Held, That the answers of F. and T. to the interrogatories addressed to them by the libellants were not evidence in their favor;

That the final judgment in the prize case was a judgment that the Wren was the property of L.;

That neither P. nor F. and T., who had procured that judgment to be rendered, could be heard now to allege the contrary of the fact there adjudged; That F. and T. were estopped by what had taken place between them and W., from saying, in this suit, that the proceeds of the Wren were not the property of L.

Notice of a prize suit against a vessel, given to her master, is notice to her real owner, and he is a party to such prize suit.

The claimant of a vessel, seized as prize of war, is allowed to give the papers of the vessel in evidence, and is, therefore, bound to see that they are true papers.