The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1874-05-13
NEW YORK HERALD WEDNESDAY MAY b. B74-TRIPLE SHEET.

Mr.. Alexander T. stewart, taken from the decree
OF Judge Blatchford. settlng aside the conveyances
made by the bankrupts. Messrs. Leland, formerly
proprietors OF the Metropolitan Hotel, TO Mr..
stewart, OF the above mentioned real estate The
grounds OF this notion as stated by counsel, were
that Mr.. Stewart had taken the property prema-
turely inasmuch as the District Court had ordered
an accounting to be had OF the rents and profits OF
charged therewith. Mr. Stewart, 1t was alleged,
without waiting for the accounting or having the
amount ascertained, took an appeal to the Circuit
Court oil tile United States.
Mr. Henry 4. Davies, ST., counsel for Mr..
Stewart, opposed the motion Ia q Heightened argu-
ment, asserting that the decree oil the District
Court was in state TO be appealed from to the
or the right and title Of Mr. Stewart To- the prop
erty IN question. The learned gentleman cited
large number or authorities and several cases de-
support OF his views
Judge Hunt intlmated to counsel that he would
suspend argument on the ap peal until he mad de-
cided this particular question. Counsel might
look for decision at an early day, and should be
ready to go on in case he determined that the ap-
peal must De heard.
Decisions-The Case or the Pennsylvan mia.
Before Judge Woodruff
In the matter Of the Pennsylvania Judge Wood
run yesterday rendered the following decision -
Upon the decision made in this case by the
Supreme Court 1t Is altogether just that the dam
ages sustained by the Pennsylvania should be
brought into the app0rtionment which, by the rules
OF admiralty, follow where both vessels are guilty
OF fault which contributes to the disaster regard
the decision OF the Supreme Court IN the case OF
The Sapphire AS plain recognition OF the compe-
tency OF this Court to allow the owners oI the
Pennsylvania to bring their damages to the atten-
ton OF the Court III tins stage oil tine proceed ngs
with view TO including them in such apporii0n-
ment. 1t is Just that 1t should be so.
The mandate directs proceedings here In conformity
to the opinion The opinion finds facts upon
which the damages should be directed. But the
privilege now gwen should not disturb the pro-
ceedings IN any other respect nor work any dlsad-
vantage to the loeilants beyond the ascertalnment
and allowance of those damages In the apporton-
ment on these terms and conditions let tae an
swer be amended by an averment taat The Penn
sylvania was injured by the COLLISION mentioned IA
the llDel and let order OF reference be entered
| TO ascertain the amount OF such damages On the
! coming in and confirmation OF the report such
/ damages will be brought into the apportlonment,
with the damages already found to nave been sus-
tanned by the hbellantS.
| Motion for Attac hment-Taking of TIES.
timony on Notice and ON Commission.
The creditors OF r. A. de Forest and others filed
petition in bankruptcy in the United states DIS
trlct Court for the Northern district OF Ohlo There
was q trial which ulted in a verdict Tor the al
legged debtors. That verdict was set aside and
proceedings were continued for the purpose of
/ having new trial. In the petition the creditors
wanted to take testimony de Oene esse in the
Southern district OF New York under the act OF
1859 and tn thrtieth section OF the act of 1917.
They applied to a commissioner for this district,
ana he issued the required suDp9nas, but the wit
nesses did not attend. motion was made III the
United States Circuit Court before Judge Wood
run for an attachment against them. Ontnis mo-
ion saying, "Whlle on tue one hand,
am Of opinion, that mad the act to
been silent upon the SUBJECT, proceedings under
that statute must nave been deemed a civil cause
the meaning OF section 30 OF the act OF 1889. Yet,
on the other hand l am decidedly OF opinion that
sucn proceedings nave py me baanrups act pegn
proceeding tnat. as TO matters winch are the SUBJ
ject OF SPECIFIC regulation, its PROVISION must be
held exclusive. Section 80 OF the Bankrupt act In
terms declares how evidence may be taken to be
used In ''any OF the proceedings under the act.
! And to meet the precise OF the creditor now
applying IN this Court 1t authorizes the taking OF
testimony on commission. BY that means these
vision excludes the taking OF testimony mere
notice. as provided In the act OF l7ss and that It
was so intended. rhe applicant should resort to
a commission. The motion Is cenied.
/ Action Against Wrecking Company.
Before Judge Nathaniel Shipman.
Yesterday the case of william @. Bartlett and
others We. The Coast Wrecking Company OF the
| city OF New York was commenced. The plaintiffs
owned the schooner Niagara She was built at Coop.
er's Point, ~ j., and was worth, according to the
cain OF her owners, about $4,000 This schooner,
having on board a cargo OF cotton, which she ship
ped at Mobile was wrecked on the coast OF Cape
hatteras In January, 1871 1t Is alleged by the pla
tlfTs that the defendants. being aware Of The cond-
| ton OF the schooner, represented to them that
with reasonable skill ana diligence, the vessel
could be SAT- ely got or the defendants promising
| TO supply ali proper and necessary wreckIng mate
rails Tor the prompt aud iaith I'll performance OF
this work, and that they would restore the vessel
and cargo to ner owners. Under this promise or
statement, as alleged, tine schooner was surren-
/ dered to the Defendants who, In consideration OF
certain salvage money to be paid them, engaged to
| furnish wrecking materials and commence at once
| the work OF saving the schooner and her cargo.
4 The case oil the plantlfs is that the defendants
/ Jailed to supply proper and necessary wrecklng
/ IN Achinery; that they did not at once begin the
/ work. as agreed upon, and that as the result OF
this neglect the schooner was lost. The defendants
pleaded the general issue. Tns 1t see IS the first
case brought I'D this court against wreckIng COM
pany LOT alleged noncompliance WI Its agree
ment to save u vessel. owen, Nash and Gray ap-
pear as counsel fOr plaintiffs and Mr.. r. ID. Ben
edlct and Mr.. Hand for the defendants. The case
/ Is still at hearing.