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If this claim is supported by the facts, no new supersedeas is now necessary. That already obtained will operate to stay any further proceedings which may be had under the judgment.

them on a different footing from other govern-1, for the allowance of a supersedeas; and 2, ment lands for sale at $1.25 an acre. Such a for a writ which shall command the Marshal of purpose would conflict with the general land the Territory to restore Ben. T. Davis to the system, and disturb its harmony, and cannot office of assessor and tax collector of Boise be imputed to Congress in the absence of an ex-County, from which he has been removed by the press declaration to that effect. This system re- execution of the judgment in the court below. quired that all lands should be brought into They claim that before the judgment had market, after proper notice, so as to afford been enforced by the execution, it had been competition before being subject to private en- stayed by supersedeas. try. It is true the lands in question were once offered at public sale at $2.50 an acre, but the reason of the rule required that they should be again offered to the highest bidder, because their condition as to price had been changed, and there had been no opportunity for compe- The real object of this motion is to avoid the tition at the reduced price. Congress meant effect of the alleged improper execution of the nothing more than to fix $1.25 as their mini-judgment, and restore Davis to his office. Such mum price, and to place them in the same cate- a motion cannot be entertained, except after gory with other public lands not affected by reasonable notice to the opposing party. land grant legislation. When they were with such notice has been given in this case. drawn from the operation of this legislation, This motion is, therefore, overruled, but withand their exceptional status terminated, the out prejudice to its renewal after reasonable nogeneral provisions of the land system attached tice to the defendant in error. to them, and they could not, therefore, be sold at private entry, until all persons had the opportunity of bidding for them at public auc

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JOHN GORMAN. Supersedeas-motion to restore plaintiff to of fice, when not entertained-renewal of motion.

Where a judgment has been stayed by supersedeas before it has been enforced by execution, no new supersedeas is necessary.

A motion to avoid the effect of an improper execution of the judgment and restore the plaintiff in error to an office, cannot be entertained except after reasonable notice to the opposite party.

In this case no such notice having been given, such motion is overruled, but without prejudice to its renewal after reasonable notice to defendant in error, the court saying that in case it is renewed, the plaintiff in error, in order to obtain the relief asked, will be required to show to the satisfaction of the court that the judgment below was in fact executed after he had become entitled to a stay of proceedings.

[No. 717.]

No

In the event of its renewal, the plaintiffs in error, in order to obtain the relief asked, will be required to show, to the satisfaction of the court, that the judgment below was in fact executed after they had become entitled to a stay of proceedings.

THE STEAMSHIP PENNSYLVANIA, Her Engine, etc., The National Steamship Company, Claimant, Appt.,

v.

JACOB V. TROOP et al., Owners of the Bark
Mary R. Troop, Libelants.

(See S. C., "The Pennsylvania," 19 Wall., 125-138).
Rules of navigation—fault of steamer-of sail-
ing vessel-immaterial fault-violation of
statutory rule-burden of proof-rule of
damages.

1. The rules of navigation require every steamship, when in a fog, to go at a moderate speed ; what is such speed must depend upon the circumstances of each case.

2. Where a steamer was going at an undue rate of speed, and it was her fault that she came into a position from which she could not escape without colliding with a bark, she was held liable for the damages.

3. The bark held in fault for violation of the rules of navigation, which required her to blow a fog-horn when under way.

4. If it clearly appears that such fault could have had nothing to do with the disaster, the liability for damages is upon the ship whose fault caused the injury.

5. But when a ship at the time of a collision is in actual violation of a statutory rule intended to prevent collisions, it is a reasonable presumption that the fault, if not the sole cause, was at least a contributory cause of the disaster.

6. In such a case the burden rests upon the ship to show, not merely that her fault might not have Motion filed Mar. 6, 1874. Decided Mar. 16, been one of the causes, or that it probably was not, but that it could not have been.

1874.

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Mr. Chief Justice Waite delivered the opinion of the court:

The plaintiffs in error moved in this cause,

7. Where both vessels were in fault, the damages, according to the admiralty rule, should be divided. [No. 213.]

Argued Jan. 29, 1874. Decided Mar. 16, 1871⁄2.

NOTE. Collision; rights of steam and sailing vessels with reference to each other, and in passing and meeting-see notes 13 L. ed. U. S. 537; 35 L. ed. U. S. 453.

Measure of damages in cases of collision-see notes 4 L. ed. U. S. 456; 11 L. ed. Ú. S. 35.

Speed of steamers in fog-see note, 28 C. C. A. 532.

A

PPEAL from the Circuit Court of the United States for the Eastern District of New York.

The appellees, who are owners of the British bark Mary R. Troop, filed their libel in this cause, in the U. S. District Court for the Eastern District of New York, June 21, 1869, against the steamship Pennsylvania.

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wholly without fault in respect to the time at which the bark was discovered.

Second Point. The steamer was wholly without fault in respect to every act done after the presence of the bark in her neighborhood was first indicated. The evidence is conclusive that those on duty and in charge of her used every means in their power to avoid the collision.

Fourth Point. The court erred in holding the steamer at fault in any particular, in respect to any order given or act done by those in charge of her in the brief and inappreciable interval between the first sound of the bell and the collision.

The libel averred, in substance, that on or Third Point. The evidence clearly estababout June 15, 1869, while the bark Mary R. lished the fact that the bell of the bark was not Troop was on a voyage from Ardrasson, Scot- heard and could not have been heard until the land, to the Port of New York, loaded with a bark was within three hundred feet of the cargo of pig-iron, she was run into by the steam-steamer, and that this proximity was not due ship Pennsylvania and sunk, and became a to any fault of the steamer. total loss. The libel alleged that the collision occurred off Georgia Shoals, about two hundred miles from Sandy Hook, at nine and a half o'clock A. M.; that a dense fog was prevailing, accompanied with squalls; that the bark was hove to on the starboard tack, with a competent lookout, her bell being constantly rung; that the steamship came, head on, under full headway, etc.; and charged that the collision was caused solely by the fault of the steamship in running at such a rate of speed, in not having a proper lookout, and in not changing her Fifth Point. The bark was clearly in fault in course in time to avoid the bark, by going un-not complying with the rule which required the der her stern, as she might and could have done.

The weight of the evidence is overwhelming that all was done by them which discipline, duty and good seamanship demanded, and the theory of confused or vacillating orders is wholly without foundation in fact.

use of a fog-horn while she was under way; and the presumption of culpable negligence raised by this conceded violation of law, is not removed by the evidence. On the contrary, it is so strengthened that the bark, upon a fair view of the evidence, must be held chargeable with the close and fatal proximity to the steamer in which she was when her presence was first indicated.

Act, Apr. 29, 1834, art. 10, subd. b, 13 Stat. at L., 60, 61.

Sixth Point. The court below erred in holding the steamer at fault on account of her rate of speed at the time of the collision.

The answer puts in issue the several allegations of the libel, and in respect to the facts of the collision, avers that the steamer Pennsylvania was going at reduced speed, only sufficient to keep her course, with a competent look out, the weather being so foggy that a vessel could not be seen more than a length off, and all attention paid to sounds; that the sound of a bell was heard and immediately the bark hove in sight, too near for the steamship to avoid a collision; that The Pennsylvania's engines were at once stopped and backed, and her helm ported; but the bark having her helm Seventh Point. The court below erred in atlashed and being unable to port, came into The tempting to speculate upon the question whethPennsylvania and, being loaded with iron, sank.er the established negligence and violation of The answer charges the fault of the collision to the bark, in not keeping a proper lookout, not blowing a fog horn, as she should have done, and in using only a bell placed on a stay; and that the collision was caused, notwithstanding all that was possible was done by the steamship to avoid it.

The U. S. District Judge condemned the steamer.

See Op. of Benedict, J., The Pennsylvania, 4 Ben., 257.

The U. S. Commissioners, to whom it was referred to ascertain the amount due libelants, reported the sum of $24,466.50, with interest from Jan. 26, 1871, as the amount so due. Exceptions to the report were taken which were overruled and a decree entered Aug. 9, 1871. from which an appeal was taken to the U. S. Circuit Court.

The circuit judge affirmed the decree.
See Op. of Woodruff, J., The Pennsylvania,
9 Blatchf., 451.

The claimants appealed to this court.
The facts appear in the opinion.
Messrs. John Chetwood, C. Donohue and
William Allen Butler, for appellant:

First Point. The presence of the bark was discovered by the steamer's lookout at the earliest possible moment, and the steamer was

law on the part of the bark, was or was not the cause of the disaster. The fact of such violation without excuse, and the extent to which it operated as a proximate cause of the collision not being ascertained, it was error to impose the burden of the disaster upon a vessel which was complying with the law in all respects.

The North Star, 8 Blatchf., 209: The Ariadne, 13 Wall., 475, 20 L. ed. 542; The Scotia, 14 Wall., 170, 20 L. ed., 822; The Continental, 14 Wall., 345, 20 L. ed. 801; The Queen, 8 Blatchf., 234.

Even if the steamer erred (which we deny) in not reducing her speed more than she did, it is settled by the court, that errors committed by one of two vessels, approaching each other from opposite directions, do not excuse the other from adopting every proper precaution required by the special circumstances of the case, to prevent a collision, as the Act of Congress provides that, in obeying and construing the prescribed rules of navigation, due regard must be had to the special circumstances rendering a departure from them necessary, in order to avoid imminent danger.

13 Stat. at L., 61; The Maria Martin, 12 Wall.. 31, 20 L. ed., 251, see per Mr. Justice Clifford, p. 47 (255); The Sapphire, 11 Wall., 164, 20 L. ed., 127; The Ariadne, supra.

Eighth Point. This case is not within the rule sometimes applied, that this court will not reverse, in cases where the district and circuit courts have concurred in opinion on the fact. The Hypodame, 6 Wall., 216, 223, 18 L. ed., 794, 796.

The evidence is mainly by deposition, and not ore tenus; the gravest doubts are expressed by the learned circuit judge as to the correct ness of the conclusions reached by the district court.

See, opinion, 9 Blatchf., 451; The Ariadne, supra, per Swayne, J.

Ninth Point. It may be argued that the delinquency of duty on the part of those in charge of the bark was simply a contributing cause of the collision and, therefore, that the loss should be apportioned.

Chamberlain v. Ward, 21 How., 548, 16 L. ed., 211; The Gray Eagle, 9 Wall., 505, 19 L. ed., 741.

It is respectfully submitted that the clear weight of the evidence shows that the bark was wholly in fault.

Tenth Point. The District Court for the Eastern District of New York never acquired jurisdiction in this cause. The steamer being attached to a wharf in the City of New York, in the North River, was not within the Eastern District at the time of the filing of the libel.

U. S. Supreme Court Rules, Admiralty Rule, XXIII.; Act Feb. 25, 1865, creating Eastern Judicial District of N. Y., 13 Stat. at L., 438.

Eleventh Point. The court below erred in fixing the value of the bark, and the appellant's exceptions to the commissioner's report should

have been allowed.

Messrs. R. D. Benedict and E. E. Benedict, for appellee:

First Point. The evidence before this court is the same as it was before the district and circuit courts. And both those courts have given decrees against The Pennsylvania. This court would be slow to reverse those decrees, if they stood alone, as it has repeatedly said.

The Water Witch, 1 Black, 500, 17 L. ed., 156; The Potomac, 2 Black, 583, 17 L. ed., 364; Newell v. Norton, 3 Wall., 267, 18 L. ed., 273; The Grace Girdler, 7 Wall., 204, 19 L. ed., 116; The Quickstep, 9 Wall., 669, 19 L. ed. 768.

Second Point. The Pennsylvania was in fault for running at too high a speed.

The Europa (Jenk. Rule of the Road, 52); The Magna Charta, 1 Mar. Law Cas., 153; The Louisiana, 2 Ben., 371; The City of New York, 8 Blatchf., 197; The Bridgeport, 7 Blatchf., 214; The Bridgeport, 14 Wall., 116, 20 L. ed., 787.

Third Point. The Pennsylvania was in fault, in that her second officer, Nicoll, who was in charge of her navigation, was so negligent as not to hear the first announcement of the bark's presence.

Fourth Point. The Pennsylvania also was in fault in the contradictory orders which were given as to her helm. It was first ported, then starboarded, and then again ported. This shows that, as Lord Romilly says, "There was considerable confusion on the part of the steamer." Such confusion is a fault.

Fifth Point. These faults of the steamer were the all-sufficient cause of this collision. There was an abundance of time for the steamer to

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avoid the bark after her presence was known by either starboarding or porting, if the steam er had been properly managed.

Sixth Point. The principal charge that is made against the bark, viz.: that she was ring ing a bell instead of blowing a fog-horn, if a fault at all under the circumstances, was only a technical, not a substantial fault, and did not in any way contribute to the collision.

Seventh Point. It is urged that the courts be low should not have considered the question, whether or not the ringing of the bell contrib uted to the collision.

Doubtless it would simplify the trial of colli sion cases, if the courts were only called upon to inquire whether each vessel had complied with all the requirements of the law, and not to inquire whether any failure to comply with them had anything to do with the collision.

But that would be an unheard of mode of disposing of these cases. The question always is: "Did the vessel commit a fault which contributed to the collision?"

The Farragut, 10 Wall., 334, 339, 19 L. ed., 946, 947; Cohen v. The Mary T. Wilder, Taney, 573.

Mr. Justice Strong delivered the opinion of the court:

It may be that when the bark was discovered by those on board the steamer it was too late to avoid a collision. The two vessels were then not more than three or four hundred feet apart, and the steamer had the bark almost across her bow. Yet it is possible that if her helm had been put to starboard instead of to port when the lookout announced, "Bell on the starboard bow," and had been kept starboarded, the collision might either have been avoided or have been much less disastrous. By porting her helm she was turned toward the point where the bell indicated the bark was, and this apparently increased the danger of a collision.

But if this is not to be attributed to her as a fault, there is no excuse to be found in the evidence for the high rate of speed at which she was sailing during so dense a fog as prevailed when the vessels came together. The concurrent testimony of witnesses is that objects could not be seen at any considerable distance, probably not farther than the length of the steamer; and yet she was sailing at the rate of at least seven knots an hour, thus precipitating herself into a position where avoidance of a collision with the bark was difficult, if not impossible, and would have been, even if the bark had been stationary. And she ought to have apprehended danger of meeting or overtaking vessels in her path. She was only two hundred miles from Sandy Hook, in the track of outward and inward bound vessels, and where their presence might reasonably have been expected. It was, therefore, her duty to exercise the utmost caution. Our rules of navigation, as well as the British rules, require every steamship, when in a fog, "to go at a moderate speed." What is such speed may not be precisely definable. It must depend upon the circumstances of each case. That may be moderate and reasonable in some circumstances which would be quite immoderate in others. But the purpose of the *requirement being to guard against [*134 danger of collisions, very plainly the speed

should be reduced as the risk of meeting vessels is increased. In the case of "The Europa," Jenkins, Rule of the Road at Sea, 52, it was said by the Privy Council: "This may be safely laid down as a rule on all occasions, fog or clear, light or dark, that no steamer has a right to navigate at such a rate that it is impossible for her to prevent damage, taking all precaution at the moment she sees danger to be possible, and if she cannot do that without going less than five knots an hour, then she is bound to go at less than five knots an hour." And we do not think the evidence shows any necessity for such a rate of speed as the steamer maintained. It is true her master, while admitting she was going seven knots, states that he don't consider she could have been steered going slower-could not have been steered straight. And two other witnesses testify that, in their opinion, she could not have been navigated with safety and kept under command at a less rate of speed than seven miles an hour. These, however, are but expressions of opinions based upon no facts. They are of little worth. And even if it were true that such a rate was necessary for safe steerage, it would not justify driving the steamer through so dense a fog along a route so much frequented, and when the probability of encountering other vessels was so great. It would rather have been her duty to lay to. But there is the evidence of one who had been a ship-master, and who once crossed the Atlantic as a passenger in this steamer. He states that on the passages he did not, to the best of his knowledge, average over four knots during twenty-four hours, and that he noticed no difficulty in her steerageway at that low rate of speed. As he was in the habit of going to sea he would probably have noticed difficulty if there had been any. This is a fact of more weight than any mere opinions unsupported by observation or trial. We think, therefore, it must be concluded that the steamer was going at an undue rate of speed, and that it was her fault that she came into a position from 135*] *which she could not, or certainly did not, escape without colliding with the bark.

It is next to be considered whether any fault of the bark contributed to the collision. That she was in fault is beyond controversy. She was in plain violation of the rules of navigation, which required her to blow a fog-horn. Both our own and the British shipping Acts enact that sailing ships, when under way, shall use a fog horn and, when not under way, shall use a bell. The British merchants' shipping Act expressly declare that owners and masters of ships shall use no other fog signals than such as are required by the regulations, and that if in any case of collision it appears to the court before which the case is tried that such collision was occasioned by the non-observance of any regulation made by the Act, or in pursuance thereof, the ship by which the regulation has been infringed shall be deemed to be in fault, unless it is shown to the satisfaction of the court that the circumstances of the case made a departure from the regulation necessary. Our own statute does not contain this provision expressed, but its meaning is the same. The bark in this case was a British ship, as was the steamer. She was under way, moving slowly, indeed little, if any, more than a

mile an hour, with her helm lashed three quar ters to port, but on her starboard tack, carrying two close reefed topsails, foresail, foretopmast and mizzen staysails, and with no sails aback, so far as it appears. She was constantly changing her position. It was her duty, therefore, to blow a for-horn, and not to ring a bell. By ringing a bell, as she did, she gave a false signal and, so far as she could, assured all approaching vessels that she was not under way. There is some evidence that a bell can be heard as far as can a fog-horn, and some that it can be heard farther. On the other hand, there is evidence that a fog-horn can be heard farthest. However this may be, the bark had no right to substitute any equivalent for the signal required by the navigation rules. In the case of "The Emperor," Holt's Rule of the Road, 38, it was said: "It is not advisable [*136 to allow these important regulations to be satisfied by equivalents, or by anything less than a close and literal adherence to what they prescribe." In addition to this it may be remarked that a bell can never be an equivalent for a fog-horn. It gives different information. Both may notify an approaching vessel that the signalling ship is in the neighborhood, but the one gives notice that the ship is moving, and the other that the ship is stationary.

Concluding, then, as we must, that the bark was in fault, it still remains to inquire whether the fault contributed to the collision, whether in any degree it was the cause of the vessels coming into a dangerous position. It must be conceded that if it clearly appears the fault could have had nothing to do with the disaster, it may be dismissed from consideration. The liability for damages is upon the ship or ships whose fault caused the injury. But when, as in this case, a ship at the time of a collision is in actual violation of a statutory rule intended to prevent collisions, it is no more than a reasonable presumption that the fault, if not the sole cause, was at least a contributory cause of the disaster. In such a case the burden rests upon the ship of showing not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been. Such a rule is necessary to enforce obedience to the mandate of the statute. In the case of "The Fenham," 23 Law Times, 329, the Lords of the Privy Council said: "It is of the greatest possible importance, having regard to the admiralty regulations, and to the necessity of enforcing them, to lay down this rule: that if it is proved that any vessel has not shown lights, the burden lies on her to show that her noncompliance with the regulations was not the cause of the collision." In some cases it is possible to show this with entire certainty. In others it cannot be. The evidence in the present case leaves it uncertain whether if a foghorn had been blown on the bark, it would not have been heard sooner than the bell was heard, and thus earlier warning *have been [* 137 given to the steamer-seasonable warning to have enabled her to keep out of the way. It was not without reason that the statute required a fog-horn for ships under way, and a bell for those not under way. The Legislature must have known it was important ships should have the earliest possible notice of the proximity of other moving vessels. They might be ap

proaching each other. If so, they would come together sooner than they could if one of them was not under way. It may be assumed, therefore, that the Legislature acted under the conviction that a fog-horn could be heard at a greater distance than a bell, and required the use of one rather than that of the other for that reason. To go into the inquiry whether the Legislature was not in error-whether, in fact, a bell did not give notice to the steamer that the bark was where she was as soon as a fog-horn would have done-is out of place. It would be substituting our judgment for the judgment of the law-making power. It would be admitting the validity of an equivalent for that which the statute has made a positive requirement. Then how can it be shown on the part of the bark that the failure to use a foghorn certainly contributed in no degree to the collision? How can it be proved that if a foghorn had been blown, those on board the steamer would not have heard it in season to have

enabled them to check their speed or change their course, and thus avoid any collision?

*WILLIAM A. COIT, Appt., [*274

v.

EDWARD ROBINSON and Enoch Chamber

lin.

(See S. C., 19 Wall., 274-286.)

Review, in this court, of cases under Bankrupt Act-appeal in cases of supervisory jurisdiction.

1. Cases arising under the 3d clause of the 2d section of the Bankrupt Act, where the amount is sufficient, are within the 9th section of the Bankrupt Act, and as such. may be removed here for re-examination by writ of error or appeal.

2. Suits in equity and cases at law, under the jurisdiction created by that Act, may be removed to the circuit court for re-examination, as provided by the 8th section of the Act.

3. An appeal does not lie to this court from a

decree of the circuit court rendered in the exercise
of the supervisory jurisdiction conferred upon that
Bankrupt Act.
court by the 1st clause of the 2d section of the

[No. 677.]

Submitted Jan. 30, 1874. Decided Mar. 16, 1874.
PPEAL from the Circuit Court of the Unit-

Though there were two lookouts on the steam-A ed States for the Southern District of New

York.

The case is stated by the court.

Messrs. J. W. Moore and C. Tracy, for appellant.

Mr. G. A. Seixas, for appellee.

Mr. Justice Clifford delivered the opinion of the court:

er, each in his proper place, the bark's bell was not heard until the vessels were close upon each other. Who can say the proximity of the vessels would not have been discovered sooner if the bark had obeyed the navy regulations? If it be said this is speculation, it may be admitted; but it is a speculation rendered necessary by a certain fault of the bark. It is equally speculative to conclude that the collision would District courts have original jurisdiction, in have taken place if a fog-horn had been used in their respective districts, of all matters and prostead of a bell, and infer therefrom that the ceedings in bankruptcy, and are authorized to fault of the bark had no relation to the disas- hear and adjudicate the same according to the ter. The truth is, the case is one in which, provisions of the Bankrupt Act. 14 Stat. at L., while the presumption is that the failure to 517. Circuit court have a general superintendblow a fog-horn was a contributory cause of ence and jurisdiction of all cases and questions 138*] the collision, and while the burden of arising under that Act, within and for the disshowing that it was in no degree occasioned by tricts where the proceedings under the Act are that failure rests upon the bark, it is impossi-pending; and, except when special provision is ble to rebut the presumption. It is a well otherwise made, may, upon bill, petition or othknown fact that in some states of the atmos-er proper process, of any party aggrieved, hear phere a fog-horn can be heard at much greater distances than in others. How far it could have been heard when this collision occurred can never be known. Nor can it be known what precautions the steamer would have adopted if the true and proper signal had been given her. Hence, it appears to us, the bark has not proved that her failure to obey the shipping regulations was not a concurrent cause of the injury she received; and, consequently, as both vessels were in fault, the damages, according to the admiralty rule, should be divided.

We have not overlooked the fact that in a libel by the owners of the cargo of the bark against the steamer for damages resulting from the same collision, it was held by the Judicial Committee of the Privy Council in England, that the disaster was chargeable to the steamer alone. The Pennsylvania, 23 Law Times Rep., 55. But with great respect for the tribunal that thus decided, we do not feel at liberty to surrender our judgment, especially in view of the fact that the case is now more fully presented and the evidence is more complete than it was in the British court.

The decree of the Circuit Court is reversed, and the cause is remanded, with instructions to enter a decree in accordance with this opinion.

and determine the case as in a court of equity; the provision also being that the circuit court, or any justice thereof, mav exercise the powers and jurisdiction granted by that clause, “in term time or vacation." 14 Stat. at L., 517, 518.

*On the 29th of February, 1868, the [*279 respondents filed their petition in the District Court for the Southern District of New York representing that they owed debts within the judicial district exceeding $300, and that they were unable to pay all their debts in full; that they were willing to surrender all their estate and effects for the benefit of their creditors, and stating that they desired to obtain the benefit of the Bankrupt Act; and prayed that, after due proceedings had, they might, by a decree of the court, be adjudged to be bankrupts; and that, upon complying with all the requirements of that Act, they may severally be decreed to have a certificate of discharge from all their debts provable under the said Act. By the record it also appears that the petitioners, on the 12th of June in the same year, were adjudged to be bankrupts within the true intent and meaning of the Bankrupt Act.

Complete jurisdiction of the case was by those means acquired by the district court, and it further appears that such proceedings were

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