(District Court, E. D. New York. 1IIay 19, 1883.)
AmIIRAT.TY-'VRECKAGE-l'RIVATE SALE WITIIOUT NOTICE
on 'Vhere a boih·r removed from the wrMk of a vessel injured by collision was sold at priva.te sale without the knowledp:e of those sought to be charged with its value,and without appraisement, the commissioner appointed to fix the amount of the damages credited the lihelant with the full value of the boiler, as proved on the reference, instead of the price so i and, on exceptions to the commissioner's report, his findinl!" w-as sustained.
In Admiralty. Jas. K. Hill, Wing « Sh01Uly, for libelant. Beebe, Wilcox J; Hobbs, for claimants. BENEDICT, J. The commissioner's report as to the value of the libelant's boat was made after hearing the testimony given by many witnesses, and upon a serious conflict of evidence. I have examined the evidenGe, and am unable to conclude that any injustice will be done to either party by confirming the report of the commissioner in that particular. In regurd to the value of $3,500 put by the commissioner upon the boiler removed from the wreck and sold by the libelant at private sale for $1,700, I should be induced to take the price realized for the boiler as its value, instead of the sum reporied by the commissioner, if the libelant had given the claimants notice of his intention to sell the' boiler, or afforded them an opportunity to examine it and determine its value. But the sale was a private sale, made without the knowledge of the parties who were to be charged with its value, and without any appraisement, and the sum realized is proved by the libelant himself to be less than the intrinsic value of the boiler, which he says was as good as new. Upon such facts the finding of the value of the boiler to be $3,500 is justified. The exceptions of both sides are, therefore, overruled, and the report confirmed.
See The Warren, 11 FED. REP. 443.
lRoporled!lY R, D ok Wyllya Benedict, oCthe New York
SMITH 11. CRAFT.
October 16, 1882.l
(Circuit Court, D. California.
HEMOVAL OF CAUSES.
The clause of section 639 of the Hevi"ed Statutes was repealed by the act of congress of 3, 1875.
SAWYER, J. This action was brought in the state court of Santa Barbara county, and removed by R. S. Den as to himself, under the second clause of section 639 of the Revised Statutes, on the ground of citi7.enship, and that there was a controversy which could be wholly determined as to him, without the presence of other parties. At the last term of the supreme court of the Umted States it was held, in Hyde v. RulJle, that "the second clause of section 639 of the Revised Statutes was repealed by the act of 1875." H.I/de v. Ruble, 104 U. S. 407. rrhe law under WhICh the removal was had having been repealed long before the removal, it was not removable. The case must, therefore, be remanded to the state court for want of jurisdiction, and it is so ordered.
As to repeal of first clause of section 639 of tlle Revised Statutes, see State v. Lewi8, 14 FED. REP. 65; and as to repeal of third clause, Miller v. Chicago. B. d': Q. R. Ga., ante, 97.-fED.
and others v.
(Circuit C(Jurt, D. Indiana.
September 14, 1883.)
1 · .u<t;OT.VEKCY-OBTAINL'iG CREDIT-PROMTSE TO SECURE CREDITOR.
The mere fact that a horrower, lit the time of procnring a loan or credit, makes an oral statemcnt or promise that if he should !Jecome insolvent he will secure or prefer the one who gives such credit over others, will not dis4.ua1uy him from giving, and the creditor from receiving, the promised favor; and a transfer of property made in pursuance of such promise will not be set aside as fraudulent, at the instance of the other creditors, except when a fraud was intended, or the circumstances within the knowledge of the creditor preferred were such tbat he must have known that injury to others would probably result. 2.
OF IKSOLVE1-,,- TO MANAGE PnOPERTY.
Xor will the fact that the insolvent, in the writing by which the RgTeement was effected, was employed to manage the property conveyed, in the absenco of proof of fraud, be sufficient to avoid such transfer
lJ'rom Eth Sawyer.