The United States v. Fullerton. THE UNITED STATES vs. WILLIAM FULLERTON. On the trial of an indictment for a misdemeanor, after testimony had been given on both sides, and the evidence was closed, the Court directed the jury to acquit the defendant, on the ground that the evidence did not warrant a conviction. (Before WOODRUFF and BLATCHFORD, JJ., Southern District of New York, March 16th, 1870.) In this case, which was an indictment for a misdemeanor, after testimony had been given, at the trial, on the part of both the prosecution and the defence, and the evidence was closed, the counsel for the defendant requested the Court to instruct the jury to acquit the defendant, the ground of the request being that the evidence was such as not to warrant a conviction. The Court, after hearing a discussion by the respective counsel as to the power of the Court to give such an instruction in any case, and thus take the case from the jury, held that, inasmuch as the Court would have the power, if the defendant were convicted by the jury on the evidence, to grant him a new trial, if it should be of opinion that the verdict was against the evidence, it had the power, if it was of opinion that a verdict of guilty would not be warranted by the evidence, to direct the jury to acquit the defendant on that ground. The Court, being of opinion that the evidence did not warrant a conviction, directed the jury to acquit the defendant, which was done. Edwards Pierrepont (District Attorney) and Benjamin F. Tracy, for the United States. Edwin W. Stoughton, John K. Porter, John E. Burrill, Grenville T. Jenks and Clarence A. Seward, for the defend ant. VOL. VII.-12 In re The New York Mail Steam Ship Company. In re THE NEW YORK MAIL STEAM SHIP COMPANY. Where, as the result of proceedings in involuntary bankruptcy, a large amount of property was in the hands of the assignee subject to distribution to creditors, this Court allowed to the petitioning creditor who instituted the proceedings, to be paid out of the fund in the hands of the assignee, a reasonable sum for the expense incurred by him in employing counsel to conduct such proceedings to an adjudication. (Before WOODRUFF, J., Southern District of New York, March 19th, 1870.) WOODRUFF, J. The petition of the National Bank of the Commonwealth in this proceeding having been presented to the District Court of this District, and the District Judge, as a stockholder in the said bank, being concerned in interest, the proceeding has been certified to this Court, pursuant to section 11 of the Act of May 8th, 1792, (1 U. S. Stat. at Large, 278, 279.) This petitioner was the petitioning creditor upon whose application the above-named debtor was decreed bankrupt. In the proceeding, the property of the debtor was protected for the benefit of creditors, an adjudication declaring the debtor bankrupt was had, an assignee was appointed, and a large amount of property came to, and is now in the hands of, such assignee, subject to distribution to creditors. For the institution and conduct of those proceedings the petitioning creditor was obliged to and did employ counsel, and incur the expense of such employment, and the amount of such expense is shown to have been reasonable. Such petitioning creditor now asks, in substance, that, in making distribution of the fund in the hands of the assignee, this expense, incurred for the common benefit, shall be charged on the fund, so that, practically, the creditors who come in to share the benefit of the decree in bankruptcy, and the fruits thereof, may share also in the said expense of procuring them. The mere statement of the application shows the eminent In re The New York Mail Steam Ship Company. justice and equity of the relief sought. No reason can possibly be suggested why this petitioning creditor should pay these expenses without chance of reimbursement, and thereby, to this extent, lose, for the greater advantage of the other creditors, the benefit of the proceeding. Independently of any adjudications already had upon the subject, I should say that the principles governing a Court of equity in dealing with a fund brought within its jurisdiction for the purpose of distribution, or in lending its advisory aid for the purpose of guiding or controlling the administration of such a fund, sanction the allowance of this expense; and yet there, as truly as in proceedings in bankruptcy, the ordinary fee bill providing for taxable costs does not provide for it. I concur in the conclusion of several of the District Judges who have passed upon the question; and the sanction of those decisions by Chief Justice Chase renders extended discussion unnecessary. (In re Williams, 2 Bankrupt Register, 28; In re Waite, Id., 146; In re Schwab, Id., 155; Ex parte Plitt, 2 Wallace, Jr., 453; In re Mitteldorfer, 3 Bankrupt Register, 1.) Such allowances should be guarded by the most cautious regard for the rights and interests of the creditors at large, lest, under the form of necessary expenses, undue liberality to counsel should be sanctioned, in reduction of the fund; and, if there was any suggestion, in this case, that the charge was in any degree unreasonable, I should deem it proper, by a reference or otherwise, to cause further enquiry to be made. Let an order be entered directing the allowance, to the petitioning creditor, of the expense of counsel, as prayed for, being the expense in conducting the proceedings to an adjudication. James Emott, for the application. The Elizabeth English. THE ELIZABETH ENGLISH. Where, at night, and with a strong wind from the northwest, the true course of one vessel was northeast by north, but she was in fact running northeast, closehauled on the wind, and the true course of another vessel was southwest, but, to prevent lee-way, she was in fact headed southwest by west, and it was so dark towards the northeast that a vessel without a light could not be seen at a greater distance than 50 or 60 feet, and it was so light towards the southwest that a vessel without a light could be seen from 300 to 500 yards distant, and the latter vessel saw the former vessel about one point on her leebow, and about 300 yards distant, and the former did not see the latter, but suddenly a light was seen by the former, over her lee-bow, to flash from the latter, at a distance of 50 or 60 feet off, and the two vessels came into collision, the stem of the former striking the latter on the port side, forward, and the owners of the latter sued the former for the damage: Held, that the former was not in fault. (Before WOODRUFF, J., Southern District of New York, March 19th, 1870.) THIS was an appeal in Admiralty from the decree of the District Court dismissing the libel, in a case of collision. Charles Donohue, for the libellants. Erastus C. Benedict and Robert D. Benedict, for the claimant. WOODRUFF, J. On the night of the 16th of February, 1858, shortly before nine o'clock, at sea, a few miles southeasterly from Absecom Light, the schooner Ella, belonging to the libellants, and the schooner Elizabeth English came into collision, the stem of the latter coming in contact with the former on the port side, just abaft the fore-rigging. The Ella was sailing on a course or bearing southwest by west, with a strong wind from a northwesterly direction, and such bearing was kept, as alleged by the libellants, although one point to the westerly of her true course, because of the leeway of the schooner, her true course being southwest; and The Elizabeth English. such lee-way is testified by all of the libellants' witnesses to have been about one point. The officers and men on board of the Ella saw the Elizabeth English when about 300 yards distant, and she appeared to be about one point on the lee or port bow of the Ella, and they testify that they supposed she would pass them on the port or leeward side. The night was not clear, but, towards the south and west, it was suffi ciently light to enable them to see a vessel without a light, as these witnesses, with some variance among them, testify, from three hundred to five hundred yards distant. The Elizabeth English was on a voyage to New York, and her true course was northeast by north. Her master, who had been at the wheel, testifies that the vessel could not get within one point of her course, and, therefore, was running northeast. When he left the wheel, he gave the course to the man who took his place, northeast by north, by the wind, that is, as close to the wind as she would lie without shaking. The man at the wheel also testifies to those instructions, and that he obeyed them. It is, I think, established by the evidence, that, to the north and east, the clouds were very black, and that, in the direction the Elizabeth English was sailing, it was so dark that a vessel without a light could not be seen at more than a few feet distance-fifty or sixty feet-or, as inferrible from the testimony of one of the witnesses, not the length of the schooner. At a distance of fifty or sixty feet from the Elizabeth English, a light was suddenly seen to flash upon the eye, indicating the proximity of a vessel; and her mate and two of her seamen testify, without contradiction from any other witness, that the light was seen off the lee-bow. How these vessels came together and through whose fault, if either was in fault, is certainly in great doubt, upon the testimony. But it must be borne in mind that the libellants have the burthen of proof, and must establish fault on the part of the Elizabeth English, or they can have no decree condemning her for the damages sustained. They insist, therefore, that, after they saw the Elizabeth English over their port |