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In re O'DONNELL et al.

(District Court, D. Massachusetts. July 22, 1904.)

No. 8,573.


An assignment by an insolvent to a creditor of earnings to become due under a building contract, where recording was essential to the validity of such assignment under the laws of the state, and it was so recorded within four months prior to the filing of a petition in bankruptcy against the assignor, was a transfer with intent to prefer the creditor, which constituted an act of bankruptcy, and warrants an adjudication under Bankr. Act, July 1, 1898, c. 541, § 3b, 30 Stat. 546 [U. S. Comp. St. 1901, p. 3422]. 2. SAME-CREDITOR-ACCOMMODATION INDORSER.

An accommodation indorser of notes, even before payment, is a creditor of the maker, and a transfer of property to him as security by such maker while insolvent constitutes an act of bankruptcy.

In Bankruptcy. Hearing on involuntary petition.

Berry & Upton, for petitioning creditors.
H. H. Folsom, for Reichenbacher.

LOWELL, District Judge. Involuntary petition filed February 6, 1904, against O'Donnell and Ferguson as partners. The acts of bankruptcy alleged were (1) a conveyance to hinder, delay, and defraud creditors, and (2) a conveyance with intent to prefer Reichenbacher. I find the facts as follows: The firm had a contract to build a house. On July 11, 1903, O'Donnell assigned the payments coming due thereunder to Reichenbacher. At that time Reichenbacher had indorsed for accommodation the firm notes for $1,265. On October 2d, O'Donnell disputed the validity of the assignment. Another was signed by both partners, expressly recognizing and confirming the first. At that time the firm was indebted to Reichenbacher by way of his indorsement of their paper and otherwise to the amount of $3,090. The assignments were recorded October 6th and 9th respectively. When the petition was filed the firm owed Reichenbacher about $3,763, and he held as security from $3,500 to $3,800 by virtue of the above-mentioned assignments of moneys coming due under the contract. At the time the assignments were made the respondents were insolvent. The writings and agreements of the respondents shown in evidence establish the existence of a partnership, and I find accordingly. The first act of bankruptcy alleged was not proved. The second assignment of earnings, made October 2, 1903, and recorded October 9th, can hardly be treated as a superfluous recognition of the validity of the first assignment. There was admitted doubt of its validity, and payment had been refused thereunder. Even if the later assignment be disregarded, however, the decision is not affected, for the earlier assignment was no less invalid as a preference. The assignments required record. Rev. Laws Mass. c. 189, § 34; Somers v. Keliher, 115 Mass. 165; Tracy v. Waters, 162 Mass. 562, 39 N. E. 190. In Chester v. McDonald (Mass.) 69 N. E. 1075, the Supreme Court of Massachusetts said, indeed, that the cases first cited cannot be sustained if they cover the price to be

paid for the construction of a building into which enters no service by way of manual labor or of personal supervision, direction, or control of the assignor. In the case at bar the contract calls for no supervision from the contractors, and O'Donnell was not fitted to give any, but Ferguson became a partner expressly to give this supervision, and so Chester v. McDonald must be deemed inapplicable. It follows that the giving of these conveyances was an act of bankruptcy if either gave a preference to the assignee. Bankr. Act July 1, 1898, c. 541, §§ 3b, 60a, 30 Stat. 546, 562 [U. S. Comp. St. 1901, pp. 3422, 3446] as amended by Ray Bill (Act Feb. 5, 1903, c. 487) § 13, 32 Stat. 799 [Supp. U. S. Comp. St. 1901, p. 416].

Was Reichenbacher a creditor preferred by the assignments? He was then an indorser of the respondents' paper. His liability was contingent. In Moch v. Market Bank, 107 Fed. 897, 47 C. C. A. 49, a noteholder was held to have a provable claim against a bankrupt indorser, and in Swarts v. Siegel, 117 Fed. 13, 54 C. C. A. 399, it was said that an accommodation indorser, even before payment, is a creditor of the bankrupt debtor whose paper he has indorsed. See pages 17, 18, 117 Fed., and pages 404, 405, 54 C. C. A. Reichenbacher was, therefore, the bankrupt's creditor at the time of both assignments. If the assignments stand, Reichenbacher will receive a greater percentage of his debt than other creditors. Whether he can hold the assignments by paying to the estate the amount he has been preferred, need not now be determined.

Adjudication to be made.


(District Court, S. D. New York. June 10, 1904.)


Federal courts can only grant a writ of mandamus in aid of an existing jurisdiction.


Where a receiver in bankruptcy was authorized to carry on the business of publishing a newspaper with a view to preserving its good will as an asset of the bankrupt's estate, but pending such publication the postmaster, by direction of the Postmaster General; prohibited the circulation of the paper through the mails as unmailable matter, mandamus would not be granted to reverse such determination, though the question whether the publication was objectionable might be the subject of a difference of opinion.

Michel Kirtland, for petitioner.


Charles D. Baker, Asst. U. S. Atty., opposed.

HOLT, District Judge. It is well settled that the United States courts can only grant a mandamus in aid of an existing jurisdiction. It is usually granted to enforce the collection of a judgment. In this case this court, as a court of bankruptcy, has made an order authorizing

1. See Courts, vol. 13, Cent. Dig. § 803.

a receiver in bankruptcy to carry on for a short time the business of publishing a newspaper, with a view of preserving its good will as an asset of the bankrupt estate. Under these circumstances I should hesitate to hold without further consideration that this court would have no power in a proper case to issue a mandamus in furtherance of the order in bankruptcy to carry on the business. But I think in this case the general principle applies that a mandamus will not be issued to interfere with the legitimate discretion of an executive officer. The postmaster, by direction of the Postmaster General, under the statute, has prohibited the circulation through the mails of the paper in question as unmailable matter. The question whether the contents of the publication in question come within the prohibition of the statute is one upon which there might be a difference of opinion, but the articles and pictures in the paper which are objected to are of such a character that, in my opinion, it cannot be said that the postmaster, in deciding that it is unmailable, has abused his discretion.

I think, under these circumstances, that the motion must be denied.


(Circuit Court, D. Vermont. June 30, 1904.)


The federal courts have jurisdiction of an action for death of a servant only where it is between citizens of different states or between citizens and aliens.


In an action in the federal courts for the wrongful killing of a servant, an averment that the defendant is a corporation organized under the laws of the commonwealth of Massachusetts, and that the plaintiff was "of Brattleboro, in the county of Windham and state of Vermont, executrix" of the will of the deceased, late of Brattleboro, was insufficient to show diversity of citizenship, since the allegation of plaintiff's residence did not negative the fact that she was only temporarily residing in the state of Vermont, and was not a citizen of the same state as the defendant.

'At Law.

Clarke C. Fitts, for plaintiff.

Win. B. C. Stickney, for defendant.

WHEELER, District Judge. This cause has been heard upon a demurrer to the plaintiff's declaration. A declaration that does not set forth a cause of action within the jurisdiction of the court is insufficient. This court has jurisdiction of suits of this nature only when they are between citizens of different states, or between citizens and aliens. The declaration should, therefore, show by direct allegation, without ambiguity, either in itself or in connection with the writ, the required diversity of

12. Averments of citizenship to show jurisdiction in federal courts, see note to Shipp v. Williams, 10 C. C. A. 261.

citizenship or alienage. There is no mention of either in this declaration or writ. The defendant is set up as a corporation organized under the laws of the commonwealth of Massachusetts, which may well enough show that it is a citizen of the state of Massachusetts; but the plaintiff is only set up as "of Brattleboro, in the county of Windham and state of Vermont, executrix" of the will of Walter D. Stockwell, late of Brattleboro. This may be true and she not be a citizen of Vermont, but only a temporary resident or inhabitant, and a citizen of the same state as the defendant. Shaw v. Quincy Mining Co., 145 U. S. 444, 12 Sup. Ct. 935, 36 L. Ed. 768. This leaves the court now without jurisdiction of the question discussed by counsel as to maintaining a suit upon the New Hampshire statute. Demurrer sustained.


(Circuit Court, D. Vermont. July 11, 1904.)

L FEDERAL COURTS-DIVERSITY OF CITIZENSHIP—ÂMendment of RECORD. Where a demurrer to a declaration in a federal court was sustained because of an insufficient averment of diversity of citizenship on which jurisdiction depended, plaintiff was entitled to amend the writ to show diversity of citizenship according to the fact.


Where intestate was domiciled in Vermont at the time he was killed in New Hampshire, the cause of action for his alleged wrongful death accrued to him in Vermont, and not in New Hampshire.


A cause of action for wrongful death would not survive, as authorized by Pub. St. N. H. 1901, c. 191, in any place where an administrator should be appointed merely for the purpose of recovering damages for such wrongful death as an asset of decedent's estate, but survived only in the state where deceased had his domicile at the time of his death, where the cause of action accrued.

At Law.

Clarke C. Fitts, for plaintiff.

Wm. B. C. Stickney, for defendant.

WHEELER, District Judge. As the writ has been amended according to the fact, which is allowable in such cases, the plaintiff now stands as a citizen of this state, and this court has now jurisdiction to consider the cause of action set up in the declaration as challenged by the de


The intestate was domiciled in Vermont, and, although he was killed in New Hampshire, here is the place where transitory causes of action would accrue to him and survive, if by law survivable. The action is for causing his death, and by the statute of New Hampshire is made to survive for the benefit of the widow and of the children, if any; but the statute does not provide to what personal representative the cause

¶ 1. Averments of citizenship to show jurisdiction in federal courts, see note to Shipp v. Williams, 10 C. C. A. 261.

of action shall survive. That is left to the operation of general law. Pub. St. N. H. 1901, c. 191. It would not survive in any place where an administrator should be appointed merely for recovering this liability as an asset. Lyon v. Boston & M. Railroad Co. (C. C.) 107 Fed. 386. As no cause of action would accrue to the deceased in such a jurisdiction, there would be none to survive; but wherever it should accrue to him, there it would be to survive. Dennick v. Railroad Co., 103 U. S. 11, 26 L. Ed. 439; Stewart v. Baltimore & Ohio Railroad Co., 168 U. S. 445, 18 Sup. Ct. 105, 42 L. Ed. 537. The right of action seems by the statute to be intended to survive where it would accrue to the deceased, which would be at the place of his domicile and principal administration, which is here; and the plaintiff seems to be his personal representative here, to whom it would survive if it existed. Demurrer overruled.


(District Court, D. Maryland. June 28, 1904.)


Defendant steamer, while seeking anchorage in Chesapeake Bay during fog, collided with libelants' schooner, laden with cord wood, with such force as to cut into the schooner's hull, though her deck was loaded 8 feet high, with wood which extended about 10 inches beyond her hull. At slow speed, with her engines full speed astern, the steamer could have stopped her headway in not more than twice her length, yet, when those on the steamer heard the schooner's fog horn, and the pilot gave orders to reverse, the vessels were so close that a collision could not be averted. The only lookout maintained on the steamer was in the crow's-nest on the foremast, 60 feet above deck, and over a flock of sheep laden on deck, the bleating of which tended to neutralize signals. There was evidence that the schooner was going at a speed not exceeding four miles an hour, and that she blew proper fog signals at very frequent intervals. Held, that the collision was caused either by the immoderate speed of the steamer, or by her failure to seasonably hear the schooner's foghorn, caused by failure to maintain a lookout in the bow, and that the steamer was therefore liable.

In Admiralty.

Robert H. Smith, for libelants.

Arthur George Brown, Charles W. Field, and R. E. Lee Marshall, for respondents.

MORRIS, District Judge. This was a collision in a fog off Smith's Point, in the Chesapeake Bay, between the steamer Vedamore and a small schooner-rigged sail vessel loaded with wood. The fog was of such density that vessels could not be seen more than 200 or 300 feet off, and the master of the steamship considered it was unsafe to navigate a vessel of the great size and momentum of the Vedamore in the Chesapeake Bay, and had urged the pilot to come to anchor. The pilot

¶ 1. Collision rules, speed of steamers in fog, see note to The Niagara, 28 C. C. A. 532.

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