UNITED STATES V. TOBEY.
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McKENNAN, C. J. The question upon which the decision of this ease turns is said to be one of great commercial importance, but I do not think it is difficult of solution. It involves the applicability of the act of congress of March 2, 1837, to the pilotage laws of coterminous states situated upon the same navigable waters, but which are not the separating boundary between them. If such states are within its purview, it is admitted that the libel must be sustained. That the act of congress is operative upon the la.wsof states so situated I have no doubt. Such a construction is clearly within the reason of the act, and such was held to be its effect by the supreme court of Pennsylvania in Flanigen v. Ins. Co. 7 Po.. St. 306, in reference to the law of that state, which is in question here. But I do not propose to do more than state the conclusion which I have reached. The opinion of the lea,rned judge of the district court, in deciding this esse, is so satisfactory that I adopt it ItS showing the reasons for the jndgment of this court. There must, then, be a decree in favor of the libellant for the amount / of his claim, viz., $97.50, and costs.
UNITED STATES '0. TOBEy.1Il (Di8trict Oourt, E. D. Penn8yZfJania. DEATH OF SEAMAN SALE OJ' HIS EFFEOTS -
February 27, 1882.) RIGHT OJ' MAsTER TO DEDUCT
AMOUNT DUE SHIP.
Where the master of a vessel sells at the mast the effects of a deceased seaman, and accounts to a shipping commissioner for the proceeds, in accordance with section 4538, Rev. St., he cannot deduct from such proceeds the amount due the ship by the sailor for wages advanced but not earned.
Motion for judgment non obstante veredicto. This was a suit by the United States against the master of a vessel to recover the proeeedsof a seaman's effects. On the trial it appeared that Petel; Rouel, a seaman on the ship Santa Clara, died during a voyage from San Francisco to Queenstown. He had at the time of his shipment at San Francisco received $75 advance wages. After his death his effects were sold by the master according to law, at the mast, under section 4:538, Rev. St. At this sale his effects, including a $20 gold .Reported by Frank P. Prichard, Esq., of the Philadelphia bar.
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FEDERAL REPORTER.
piece in decedent's possession, amounted to $4:9.60. Upon the arrival of the ship at Philadelphia the master reported the sale to a shipping commissioner and stated the seaman's accounts as follows: Amount of advance, Duration of :>e1' vlee, 1 month and 21 days, at $25 per month, · $75 00 42 50 $32 50
Amount received from effects, Amount due ship, · Paid to shipping commissioner,
The shipping commissioner denied the rightof the master to make any deduction from the proceeds of the seaman's effects, and to test the right to make such deduction this suit wa.s brought. The court directed a for plaintiff for the whole proceeds, reserving the point whether the master should have paid the whole sum of $49.60 to the shipping commissioner for payment into court, or was entitled to deduct the amount due by the seaman. Defendant moved for judgment non obstante veredicto. John K. Valentine, U. S. Dist. Atty., for plaintiff. Henry R. Edmunds, for defendant. BUTLER, D. J., (ora,lly.) Judgment must be entered for the plain"the total amount of deduction, if tiff on the verdict. The any, to be made therefrom," found in specification 3 of section 4538, applies only to wages due the deceased mentioned in tHis specification. The proceeds of the effects of the deceased must be paid to the shipping commissioner or accounted for, as provided by the section. No deductions from such proceeds can be made on account of any claim due the vessel by the deceased. The question stated in the opinion of the district judge was argued also before Circuit Court Judge Me KENNAN, as if on a writ of error from the circuit court, who said: I am entirely satisfied that the judgment directed by the, district judge is right, and therefore concur with him in the construction given to the act of congress.
NOTES OF DECISIONS.
349
Mortgage-Fraudulent Preference. In 1'e B. F. ALLEN. This case was decided by the supreme court of the United States at the October term, 1881. Mr. Justice Woods delivered the opinion of the court, affirming the decree of the circuit court. Except as forbidden by the.bankrupt law, a debtor has the right to prefer one creditor over another, and the vigilant creditor is entitled to the advantages secured by his watchfulness and attention to his own interests. Neither can it be denied that the mere failure to' record a mortgage is not a ground for setting it aside for the benefit of subsequent creditors, who have acquired no specific lien on the property described in the mortgage. But where a mortgagee, knowing that his mortgagor is insolvent, for the purpose of giving him a fictitiQUS credit, actively conceals the mortgage, which covers the mortgagor's entire estate, and withholds it from the record, and while so concealing it represents the mortgagor as having a large estate and unlimited credit, and by these means others are induced to give credit to the mortgagor, who fails and is unable to pay the debts thus contracted, the mortgage will be declared fraudulent and void at common law, Whether the motive of the mortgagee be gain to ·himself or advantage to his mortgagor. It is not enough, in order to support a settlement against {lreditors, that it be made for a valuable consideration. It must be also bona fide. If it be made with intent to hinder, delay, or defraud creditors, it is void alii against them, although there may be in the strictest sense a valuable, or even an adequate, consideration. A. P. Hyde and Coles, Morris & Nourse, for appellants. Bisbee & Ahrens and J. S. Polk, for appellee. The cases cited in the opinion were: That a preference may be void although there be a valuable or even adequate consideration. Twyne's Case, 3 Coke, SI; Holmes v. Penney, 3 Kay & J. 99; Gragg v. Martin, 12 Allen, 498; Brady v. Briscoe. J. J. Marsh. 212; Bosman v. Draug-hn, 3 Stew. 343; Farmers' Bank v. Douglass, 11 Smedes & M. 469; Root v. Heynolds, 32 Vt. 139; Kempner v. Churchill, 8 Wall. 362. A deed may become fraudulent by concealment; Hungerford v. 'Earle, 2 Vern. 260; Hildreth v. Sands, 2 Johns. Oh.· 35; Scrivener v. Scrivener, 7 B. Mon. 374; Bank of U. S. v. Hineman, 6 Paige, 526; as by Withholding deed from record; Coates v. Geriach, 44 Pa. St. 43; Hilliard v. Cagle, 46 Miss. 309; Gill v. Griffith, 2 Md. Ch. 270; Hafner v. Irwin, 1 Ired. 490; Hildeburn v. Brown, 17B. Mon. 779; Neslin v. Wells, 25 Alb. Law J. 249; Wotseley v. De Mattos,.l Burr. 467; Tarback v. Marbury, 2 Vern. 510. Administration of Trust Funds. INTERNATIONAL IMPROVEMENT FUND OF FLORIDA V. GREENOL"GH. Appeal from the circuit court of the United States for the northern district of Florida. The question in this case is one of costs, expenses. and allowances awarded to the complainant below out of a trust fund· under control of the court. The case was decided in the United States supreme court in April, ISS2. Mr.·Justice Bmdley delivered the opinion of the court atlirming the decree of the circuit court. Mr. Justice Miller dissenting.