Fred. Waldorf et al. v. The Prop. New York, S. D. Caldwell, Claimant. without any abatement of the propeller's speed, was the result of recklessness or ignorance, or of both combined. That the second mate was totally incompetent to have command of the propeller, is perfectly apparent by a reference to his own testimony. To the question, as to "what course a sailing vessel could steer with a green light, the wind being N. N. W.," his reply is: "Cannot tell, exactly; she could sail S. E. by E. Can't tell whether she could steer any other course or not." And to the question, "What course could a sail vessel steer and carry a red light, the wind being N. N. W.," he reveals his ignorance in the reply, and bluntly says "The fact is, I cannot tell." He further says, on cross-examination, that if he had been approaching a red light, when and where he saw the white light of the Dawn, he should have concluded the schooner was going across the lake, and he would have put the vessel astarboard; and he gives it as his opinion, as an expert, that such a light would not, if the wind was N. N. W., entitle a sail vessel to steer west. He finally reveals the true cause of the disaster, when he swears, that he had no idea that the course of the Dawn crossed that of the propeller, and that if he had supposed the lines of progress of the two vessels crossed each other, he would not have done' as he did. Now, the most ignorant deck hand on the propeller ought to have known, that if the wind was N. N. W., the white light of the Dawn indicated her course southerly of the point W. S. W., and that the courses of the two vessels must necessarily cross each other. The exhibition of the vessel's white light told as plainly as could the compass in the schooner's binnacle. The ignorance and unskillfulness on the part of the officer in charge of the propeller, and his incapacity to understand and perform the most important duties of his post, beyond Fred. Waldorf et al. v. The Prop. New York, S. D. Caldwell, Claimant. question, brought about the collision. This view of the case renders it unnecessary for us to examine and pass upon sev eral other points brought to our attention, and ably argued by the learned counsel on both sides. We are clearly of the opinion that the propeller was in fault, and that, consequently, she must be held liable for the damages sustained by the owners of the schooner. It only remains to consider the question of damages. The schooner Dawn was built at Milan, in the winter of 1846-7, and was put into commission in May, 1847. She was constructed under the immediate supervision of James P. Gay, and at a cost of $9,500. Gay testifies that the materials used in the workmanship upon her, generally, were superior to those of other vessels of her class. That a considerable amount of money was expended in salting; and also in protecting her upper works by means of oil and white lead. He says every precaution was taken in her construction necessary to prolong her life, and for this purpose one thousand dollars more were expended than is ordinarily bestowed on vessels of her class. He overhauled and examined her when she was seven years old, and found her hull and masts sound. He again examined her hull about three years since, and he says he found it entirely sound, and the vessel itself in better condition than many of those of half her age. In his opinion, her value in 1859 was from $2,500 to $3,000. In 1855, the Dawn sprung a leak in a gale and was sunk off Long Point, in Lake Erie. In about a week afterwards, she was pumped out, towed to Buffalo, and put on the dry dock for repairs. By the accident, the vessel's beams were raised off the clamps at one end, the centre box started, and some damage done to the plankshire. Vincent Bidwell testifies that he carefully examined her hull while on the dry dock, and found no decay in her timbers, Fred. Waldorf et al. v. The Prop. New York, S. D. Caldwell, Claimant. and that after the repairs were made, the vessel was in as good condition as before the accident. Charles A. Gardner, marine inspector for the Board of Underwriters, examined the Dawn in 1858, for the purpose of knowing what rate to charge for insurance on her hull. He reported her then value to be $3,000. But his valuation was reduced by the board, and put on the books of the association at $2,500, for the year 1859. A large amount of testimony has been taken in this case, showing a general depreciation in the market value of vessel property since 1855, and also the ordinary depreciation from age and wear. Mr. Bidwell puts this general depreciation, from 1855 to 1859, at 35 per cent. And many of the witnesses estimate the annual depreciation from ordinary wear and age, to be about ten per cent. Though the testimony, as to the value of the Dawn, in 1859, is conflicting, yet from a careful examination of all the evidence on this branch of the case, giving due weight to the testimony of those witnesses who have the best means of knowledge, we have come to the conclusion that her value, at the time of the collision, was $2,000. A decree will accordingly be entered in favor of the libellants for that amount. Burt, Wilcox & Barton v. Henry Keyes et al. BURT, WILCOX & BARTON v. HENRY KEYES, ET AL. CIRCUIT COURT-NORTHERN DISTRICT OF OHIO-NOVEMBER TERM, 1861. IN CHANCERY. 1. RELATION OF STATE LAWS TO UNITED STATES COURTS SITTING AS COURTS OF LAW AND EQUITY-JURISDICTION.-The State Laws constitute a rule of decision to the courts of the United States when sitting as courts of law in civil matters within a particular State, but this rule does not apply to a Circuit Court of the United States when sitting as a Court of Chancery. It is governed by the general principles of equity in the exercise of its equitable powers. 2. JURISDICTION OF THE DISTRICT COURT OF THE UNITED STATES TO DECLARE ASSIGNMENT FRAUDULENT, NOTWITHSTANDING SPECIAL PROVISIONS OF STATE STATUTE.-The Circuit Court of the United States has jurisdiction to declare void a fraudulent assignment, notwithstanding the special provisions of a State statute, as to setting aside assignments made by a debtor in contemplation of insolvency, and it can direct the application of the fund assigned. 3. FEDERAL COURT MAY DECLARE PRIORITY OF SATISFACTION, THOUGH STATE STATUTE PROVIDE OTHERWISE -The Ohio statute provides that a fraudulent assignment so made shall enure to the benefit of all the creditors of the assignor in proportion to the amount of their respective claims, prescribing a specific mode of making distribution through the agency of an assignee appointed by the Probate Judge. Notwithstanding the Circuit Court of the United States has jurisdiction in equity, and in that court a particular creditor, who sues for himself alone, will entitle himself to a prior equity to the payment of his entire debt, and the court will direct the application of the residue of the fund. 4. AS BETWEEN A COURT OF UNITED STATES AND STATE COURT— WHICH HAS JURISDICTION, AND WHEN.--Where a question of jurisdiction arises as between a court of the United States and a State court, the court, which first acquires possession of the fund, or subject of the action or jurisdiction over the matter by process against the person, has exclusive jurisdiction. Burt, Wilcox & Barton v. Henry Keyes et al. 5. VIGILANT CREDITOR.-The vigilant creditor acquires, by pursuing his claim a preferable equity, which attaches and becomes a specific lien by the filing of his bill. 6. RULE OF PROPERTY-Whenever the State court acquires possession and control of the insolvent debtor's property, it has the unquestioned power to dispose of it and give a good title. To this extent the State law is a rule of property. Henry Keyes was a partner in the firm of Keyes, White & Co. His son, Martin Keyes, was also a member of that firm. Henry Keyes, being a man of wealth, loaned his name in order to obtain credit for the firm. The other members had but little financial standing. On the 8th of February, 1858, their liabilities were $54,800, when the firm failed. On the 28th of February, 1858, Henry Keyes conveyed to his two sons, Henry and Elias H. Keyes, all his unencumbered real estate, and gave them ten years in which to pay for it. He well knew of the embarassed condition of the firm, for he had prior to that time obtained an extension for as much as $20,000 of the firm debts and had secured the same; besides had joined in an assignment to a trustee of the firm assets to secure debts. The complainants here, Burt, Wilcox and Barton, had obtained judgments in the months of August, 1858, and April, 1859, and filed this bill on the 11th day of May, 1859, in the Circuit Court of the United States, to set aside the conveyance made by Henry Keyes to his two sons, alleging that such conveyance was made to hinder, delay and defraud his creditors. The act of the Ohio Legislature, regulating assignments, of April 6, 1859, on which some of the pleadings are based, is fully explained in the opinion. This is especially so with regard to the 17th section of that act. Keith & Coon, for plaintiff. J. Q. Farmer, for defendant. |