iN BE CADWELL.
693
not to be held liable in such case." 1 And it is to be inferred from other portions of the opinion in the case just cited, that, where notices are posted in compliance with such a statute, the consent of the conductor to the act of the passenger in riding in an improper and dangerous place would not exonerate the latter from the imputation of contributory negligence. It has been held in New York that the company must strictly comply with the terms of such a statute in order to secure its benetit. 2 A notice that" passengers are forbidden to get on or off the car while in motion; or on or off the front platform; or on or off the side, except nearest the sidewalk,"-manifestly does not exempt the company from liability to a passenger for an injury sustained while merely riding upon the front platform. 3 SEY:lIOUlt D. THO:IIPSON. St. Louis. 1Higging v. Hannibal, etc., R. Co. 36 1\10.418, 435. 2Carroll v. New York, etc., R. Co. 1 Duer, 571; Clark v. Eighth Ave. R. Co. 32lJaru. 607; S. C. 36
N. Y.13:;; Colgrove v. Harlem, etc., R. Co 6 Duel', 382; S. C. 20 N. Y. 492. 3Nolaa v. Brooklya CIty, etc., R. Co. &1 N. Y.63.
In re
CADWELL
and others, Bankrupts. 1883,) ACTUAL AXD COX-
(Di,ltrict Court, N. D. New York. CREDITOR PnOYIXG CLABI-FnAUDULENT STRUCTIYE FHAUP-.
A crcditor who is gllllty of no actual fraud is not debarred from proving his debt for the reason that his preference has l.;cen set aside by the judgmcnt of the court for constructivc fraud only.
In Bankruptcy. George IV. Adams, for assignee. John Lansing, for creditor. COXE, J. 'fhis is an appeal from an order of the regIster expunging the proof of debt filed by the Jefferson County Nation:tl Bank, founded upon three judgments which had previously been declared preferential and void for constructive fraud only. Brown v. J(j[erson Co. Nat. Balik, 19 Blatchf. 315; S. C. 9 FED. REP. 258. The sale question is whether a creditor, who is guilty of no actual fraud, is debarred from praying his debt for the reason that his preference has been set aside by the judgment of the court. In August, 1877, the district court for the southern district of New York decided that there was no conflict between section 5084 of the Reyised Statutes and section 12 of the act of June 22, 1874; that a person who surrenders his preference under sectron 50.:34 may, even then, under section 12, be prevented from proving more than a moiety of bis debt, if guilty of actual fraud; that section 12 placecl another limitation upon the proof of debts, and did nothing more. In other words, that the amendment, instead of relaxing, made still harsher the terms of the original act. In re Stein, 16 N. B. R. 56D.
694:
FEDERAL REPORTER.
The register rests his decision wholly upon this authority. I fillll but one case decided subsequently in which a similar view is taken.. In re Gmres, 9 FED. REP. 816, (district court of Delaware, 1881.) See, also, In re Cramer, 13 N. B.n. 225, (district court of Minnesota, 1876.) On the contrary, the following authorities-two of them circuit court decisions-hold that it was the intention of congress, by the amendment of 1874, to distinguish between actual and constructive fraud, and remove the existing limitation upon the proof of debts by honest creditors. Burr v. Hopkins, 12 N. B. n. 211, (circuit court of Wisconsin;) In re Black, 17 N. B. n. 399, (district court of Massachusetts, 1878;) In re Newcomer, 18 N. B. R. 85, (district court of Illinois, 1878;) In re Kalt{man, 19 N. B. R. 283, (district court of New Jersey, 1879;) In re Reed, 3 FED..REP. 798, (circuit court of Massachusetts, 1880.) All of these decisions, with the exception of the first named, were rendered after the decision in the Stein Case. The reasoning of the learned judge in that case is referred to, reviewed, and disapproved. The construction contended for by the assignee, is, with great unanimity, rejected. It would hardly be profitable to restate the arguments upon this subj ect pro and con; they are very clearly and ably reviewed in the opinions referred to. The question is not free from doubt; each interpretation is surrounded with difficulties; but I am inclined to concur in the views expressed by Judges DRumIOND, LOWELL, BLODGETT, NIXON, and CLIFFORD, as giving the most reason· able construction of the law. If the amendment had been stated affirmatively,-"and such person, if a creditor, shall, 'except' in cases of actual fraud on his part, be allowed to prove * * '" bis debt,"-there would be little difficulty in giving it force and effect, even though in conflict with some of the earlier provisions of the act. But is not the meaning the same, though the proposition is stated negatively? The law says that a guilty party shall "not be allowed to prove for more than" half his debt; is not the implication wellnigh conclusive that an innocent party may prove his entire debt? If this is not the meaning of the amendment, it is indeed difficult to imagine what the intention of congress was in adopting it. The order of the register should be reversed and the expunged proof reinstated.
LIVERPOOL
&
Gl\EAT
STEA?I CO.
V.
SU1TTEU.
695
LIVERPOOL & GREAT 'VEsTEnN STEHr CO. v. SUITTER and others. l (Di,trict Courl, E. D. New York. 1.
June 7, 1883.)
The steamer 'V. arrived at New York on Friday, December 30,1881, having on hoard various consignments of fruit, which, on tbe following day, were charged on a covered pier, except part of the ddelHlant'sconsignment, and were all removed on that day, except the defendant's consignment. Sunday being the first of .Janu'H.\', and .Monday kept as a holiday, it remained in the custody of the steamer till Tuesrlay, when the fruit whieh had remained on the pier during f'unday and Monday was found to be injured hy frost, owing to the severity of the weather, although the steamer had covered it up and protected it agaitbt fr.ost as well a.'; could bc reasonably expected. In an action against the consignees to rccover the freight on the fruit, the defendants set up hy way of recoupment the damage to the frnit caused hy frost. The evidence showed that on the arrival of fruit cargoes, it was usual for consiplees to sell the same at auction at 12 o'clock on the day of its discharge hefore it was removed from the pier, and by a certain firm of auctioneers; that such a sale took plaec of nearly all the fruit brought by the 'V. on Dccember 30th, at which all wa, sold except that in question; and that all that arrived by the 'V. was removcd from the pier on that day, except the defendants' consignment, which was not removed because the defendants did not learn that their fruit was in the 'V. till too late to get it advertised for the sale of that day. lleld, that the contention of the (jl'fendants that they were not bound to receive their fruit on Saturday, because the weather on that day was so cold as to render it lin unsuitable day, was untenable, because other fruit was discharged and removed on that day without Leing injured by frost; that, even if the defendants learned of the arrival too late to put their fruit into that day's sale, still that fuct did not give them the right to compel the ship-owner to retain the fruit in his custody as eOlllmon carrier over two ensning holidays, and that the ship-owncr's responsibilityas common carrier tcrminated 'when the fruit was dischl1l'ged, with notice to the consignee in time to remove it on that day; and that in the absence of proof showing neglect on the part of the shiwowner as "'arehouse'man, he could not be held liable for the damage by frost. S.UlE-CS.\GE.
OARRIER-'VATIEITOUSJDfAN-DELIVERy-PERISIIABLE CARGO.
2.
A usage in respect to cargoes of fruit to delay the delivery until a day whcn the con,ignee should he a1cle to have it sold on the pier, by ,t certain single tirm of auctioncers, could not be upheld, even if shown to exist, it being !!'lreasonable and contrary to public policy to permit the time of a vessel's discharging her cargo to depend npon the ability of a single auction house, in the accumulation of business and other cngageme:lts, to elIcct a sale of such cargo.
In Admiral!y. Beebe, Wilcox d: Hobbs, for libelant. Charles E. Cro/cell, for respondents. J. This action is brought to recover freight, amounting to $879.75, alleged to be due for the transportation, in the steam-ship Wyoming, of a shipment of oranges and lemons consigned to the defendants. Against the demand for freight the defendants set up, by 'lVay of recoupment, damage to the fruit, caused by frost while on the pier, after it had been landed from the steamer, exceeding the freight in amount. Whether the ship-o'IVner is liable for the damage referred to is the question to be determined. 1 Reported by R. D. & Wyllys Benedict, of the Kew York l1ar.