Downing's Assignee v. Traders' Bank. Downing was adjudicated a bankrupt; and his assignee claims that the bank must now credit the amount which it received after the bankruptcy, not from Downing, nor from anything he had pledged to secure the debt, but from his accommodation acceptor. This question is settled by the bankrupt act: "All debts due and payable from the bankrupt at the time of the adjudication of the bankruptcy, and all debts then existing but not payable until a future day, a rebate of interest being made, may be proved against the estate of the bankrupt.' This $8,000 draft was due and payable to the bank by Downing, the principal, at the time he was adjudicated a bankrupt. At that time the bank had received nothing from any one, and has received nothing to this day from Downing or his estate or property. If Downing had not been put into bankruptcy, and had been sued on the draft at law, a plea that the bank had entered into a covenant not to sue his surety would have presented no defence. This was simply a covenant not to sue the accommodation acceptors, and did not, under the authorities, extinguish or satisfy the debt, or any part of it, as against the drawer, who had, in no event, any recourse over against the acceptors. (Vol. II. Parsons on Notes and Bills, p. 238; Story on Notes, secs. 409, 421, 426; Jones v. Broadhurst, 9 Man. Gr. Scott, 173.) The statute, by the language above quoted, requires debts to be due and payable at the time of the adjudication of bankruptcy, or to be then existing, though not payable until a future day; and at the time of the adjudication of bankruptthe whole amount of the draft was due to the bank. cy If it had afterwards received payment by or through Downing or his property, it might have been compelled to credit it. (Sec. 22.) The next portion of section 19 which refers to the question before us, reads as follows: "Any person liable as bail, surety, guarantor, or otherwise, for the bankrupt, who shall Downing's Assignee v. Traders' Bank. have paid the debt, or any part thereof in discharge of the whole, shall be entitled to prove such debt, or to stand in the place of the creditor, if he shall have proved the same, although such payments shall have been made after the proceedings in bankruptcy were commenced." The act proceeds: "And any person so liable for the bankrupt, who has not paid the whole of said debt, but is still liable for the same or any part thereof, may, if the creditor shall fail or omit to prove such debt, prove the same in the name of the creditor or otherwise, as may be provided by the rules," &c. These provisions apply to the question presented in this Now conceding, for the purposes of this appeal, but not deciding, that when the bank received the $4,000 of Saunders, it operated as a payment or satisfaction pro tanto of the draft, yet, as the whole debt was not paid, nor part in discharge of the whole, the bank could still, under the language of the act, prove the whole amount as against the drawer, and at the most would be liable only to be treated as proving or having proved, for the benefit in part of the party from whom it received, as the surety of the bankrupt, such partial payment. If the bank should refuse or omit to prove for the whole amount, then the party paying could make the proof, in the name of the creditor, or otherwise. case. This view of section 19 will be found to be much strengthened by the course of decision under the English bankrupt acts, both prior to and since the act of 6 Geo. IV. chap. 16, sec. 52, from which this portion of the 19th section of our act is substantially taken. It would too much protract this opinion to go at length into a review of the English legislation and decisions, and I will content myself by referring to Mr. Chitty's view of them in his work on Bills. (Chitty on Bills, 703, 727.) On the agreed statement of facts, the bank, as against the objection of the assignee, is entitled to make proof for the whole amount of the draft, and if Saunders claims, as to the Downing's Assignee v. Traders' Bank $4,000 which he paid after the bankruptcy, that he is entitled to stand in the place of the bank, he can make application to the bankrupt court to that effect. This will bring the two parties interested face to face, and the court will determine their rights upon the case they make. It would be premature to pass upon them now. If Saunders should establish his right to prove against the estate for the $4,000 paid to the bank, or to hold the estate liable therefor, it will follow that the court will make an order that the proof made by the bank shall to that extent stand for his benefit. If he shall fail to establish this right, it will follow that the bank is entitled to receive dividends on the basis that the whole amount of the draft is due to it. This disposition of the matter seems preferable to the one made by the district court, since, as we have seen, it is clear that the estate is liable in respect to the whole amount of the draft, either alone to the bank or to it and Saunders. The order appealed from holds that the bank is not entitled to prove as respects the $4,000 paid by Saunders, which is equivalent to holding that Saunders is entitled to make proof for this sum, a question which it is better to determine on an application by Saunders adverse to the bank, and where both parties can be fully heard. The order of the district court will be modified accordingly, and the cause will be remanded, with directions to overrule the objections of the assignee to the proof of claim of the bank, but with leave to Saunders to apply to the court for an order that the proof made by the bank shall stand pro tanto for his benefit, of which application the bank shall be entitled to notice. MODIFIED AND REMANDED. NOTE.- In support of the foregoing view, see decision of Hoffman, J. In re Ellerhorst, 5 Bankr. Reg. 144, and cases there cited. Exparte De Tasket, 1 Rose, 10; Reid v. Turnwal, 1 C. and M. 538. The Porter. When payment or satisfaction by one party to a bill or note, will enure to the benefit of other parties: See Jones v. Broadhurst, 9 Com. Bench (9 Man. Gr. and Scott), 173, where the English cases are collected and reviewed in the learned judgment of Creswell, J. THE PORTER. 1. A boat moored in the channel of the river near a large city, and at a place where vessels in making a landing would naturally come, was held to be in fault, because, during a heavy fog and snow storm, in which it was impossible to see but a short distance, it failed to give the usual fog signals. 2. The duty of vessels navigating the river during a heavy fog and snow storm, as respects speed, signals, &c. considered. (Before DILLON, Circuit Judge.) Admiralty.-Collision.- Fog Signals. THIS is an appeal in admiralty, from a decree of the district court for the eastern district of Missouri, dismissing the libel. The libellants are the owners of the steamboat Southern Belle, and filed in the district court a libel, which charged upon the steamboat Porter the fault of a collision which happened in the Mississippi river opposite the upper portion of the city of St. Louis, on the 19th day of October, 1869. The Grafton Stone and Transportation Company, as claimants, appeared and filed an answer admitting the collision, but denying the faults imputed to the Porter, and asserting that the accident was caused wholly by the fault of the vessel of the libellants, The other facts appear in the opinion of the court. M. L. Gray, for the libellants (appellants). Rankin & Hayden, for the respondent (appellee), The Porter. DILLON, Circuit Judge.-I have carefully gone over the pleadings and the 680 pages of testimony in this cause, and am of opinion that the decree pronounced below is correct. The material facts may be briefly stated: The libellants are the owners of the steamer "Southern Belle" and her barge, the Gertrude; the claimants are the owners of the steamer Porter" and her barges. The collision occurred about 10 o'clock in the day time on the 19th day of October, 1869, in the Mississippi river, near the upper portion of the city of St. Louis, at a point in the river nearly opposite the block between Bogy and Le Beaume streets. The libellants' vessel, the Southern Belle and her barge Gertrude, at the time of the collision were lying near the middle of the river, and were anchored there in the manner presently to be stated. The Southern Belle is what is termed a sand boat, that is, she was engaged at the time in elevating sand from the bottom of the river by means of machinery adapted to that purpose. The sand is dredged from the bar or bottom of the stream, and is brought up in buckets on an endless chain, something like the mode of elevating flour in mills, and deposited in the barge. The machinery is located on the steamer, and is propelled by steam. On the morning in question the Southern Belle, with her barge beside her, was lying near the middle of the river, but perhaps somewhat nearer to the Missouri than the Illinois shore. The river at this point is about a mile wide. The Southern Belle was headed up stream, and was kept stationary by being pinioned by four pieces of timber (two at the bow and two at the stern) driven down through the hull into the bottom of the river. At the same time the steamer "Kate Hart," which is also a sand boat similar to the Southern Belle, with her barge attached, was also lying in the river, nearly abreast the libellants' vessel, and about one hundred to one hundred and fifty feet further toward the Illinois shore. Both boats were engaged in ele |