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1874

.Ex parte Schulte. In re Matanlè.

L.J.M.

10th of November, he did not mention the bill of sale, but only the petition for liquidation; and the petition, although an act of bankruptcy, was not prior to the seizure, and therefore notice of it was not sufficient to take it out of the protection of the 95th section: Ex parte Rocke ('); Ecans v. Hallam (").

Mr. De Gex, Q.C., and Mr. Bremner, for the trustee: The title of the trustee in liquidation dates back to the act of bankruptcy committed by the execution of the bill of sale of the 10th of October, 1873: Ex parte Eyles (). The evidence is no doubt conflicting on the question whether 412] notice of the bill of sale *was given to Schulte's solicitor on the 10th of November. But in the first place, the onus is on the creditor of proving that he had no notice: Pearson v. Graham (). Therefore, if the matter is doubtful, the court will presume he had notice. Secondly, the probability is great that as Mr. Anderson had mentioned the bill of sale in his letter to the sheriff, he would also mention it to Mr. Stafford. But we also contend that it is not necessary under the 3d sub-section of the 95th section, that the act of bankruptcy, of which notice is given, should be an act prior to the seizure. In the corresponding section, sect. 20 of the Bankruptcy Act, 1849, the words are, "notice of any prior act of bankruptcy by him committed." The 95th section of the present act does not contain any such word. The creditor admits that he had notice of the filing of the petition for liquidation on the 10th of November, and we say that notice of any act of bankruptcy was sufficient to deprive him of the protection of the section. We also say that there was no sale in this case, and the property in the goods never passed out of the trustee, to whom they belonged: Slater v. Pinder (").

SIR G. MELLISH, L.J.: The question which arises in this case is, whether the trustee in liquidation is entitled to recover back the proceeds of an execution from the execution creditor, upon the facts which have been proved before me.

Prima facie the title of the trustee in the liquidation refers back to the act of bankruptcy of the 10th of October, 1873, and the seizure by the sheriff was therefore the seizure of the goods of the trustee, not of the goods of the execution debtor. But the appellant places reliance on the 3d sub-section of the 95th section of the Bankruptcy Act, 1869,

(1) Law Rep., 6 Ch., 795.

(2) Ibid., 6 Q. B., 713. (3) Ibid., 16 Eq., 99.

(4) 6 A. & E., 899.

(5) Law Rep., 6 Ex., 228; Ibid., 7 Ex., 95.

L.J.M.

Ex parte Schulte. In re Matanlè.

1874

which protects, notwithstanding any prior act of bankruptcy, any execution or attachment against the goods of any bankrupt if the creditor who issues such execution or attachment had "not at the time of the same being executed by seizure and sale, notice of any act of bankruptcy committed by the bankrupt and available against him for adjudication.'

*Now the question arises on the section, which is [413 partly one of law and partly one of fact, whether the creditor had in this case notice of an act of bankruptcy within the meaning of the section. Although the word "prior" is omitted in this section, I think it must refer to an act of bankruptcy prior to the seizure; because if, in fact, there was no act of bankruptcy prior to the seizure, the seizure (if under £50) is good; and I cannot think that the legislature meant to make it material whether the execution creditor did or did not have notice of an act of bankruptcy, which was not prior to the seizure, and therefore was not itself material to the validity of the execution. Therefore it is necessary to decide the question, if, in fact, the creditor had notice of the bill of sale executed on the 10th of October.

On the authority of Pearson v. Graham (') I am of opinion that the onus of proof lies on the execution creditor to show that he had no notice of a prior act of bankruptcy, and I must therefore see whether the creditor in this case has discharged that duty. [His lordship then carefully considered the evidence in the case, and said that although there was no reason to suppose that any of the witnesses had intentionally misstated what had occurred, yet on the balance of the testimony Schulte had not made out to his satisfaction that he had no notice of the bill of sale before the payment out of the execution which took the place of a sale by the sheriff. Therefore the sale must be declared invalid, and the creditor must return the money. The appeal must be dismissed with costs.]

Solicitors: Mr. W. Stafford; Messrs. Anderson & Sons. (1) 6 A. & E., 899. 118

8 ENG. REP.

INDEX.

A

ABATEMENT.

See DIRECTORS, 1.

ACCEPTANCE.

See AGREEMENT, 466.
STOCKHOLDERS, 929.

ACTION.

1. An evil intention or motive will not
render a legal act actionable. Harding
v. Headington.
307, 312 note.

ADMINISTRATORS.

See EXECUTORS AND ADMINISTRATORS,

ADMIRALTY.

1. Plaintiff's ship with a general cargo
sailed from London for Havre with
some petroleum on board. Under the
bill of lading the plaintiff was to deliver
the petroleum at Havre, and it was to
be taken out by the defendant within
twenty-four hours after arriving at Ha-
vre, or ten guineas a day was to be paid
for demurrage. On the ship's arriving
at Havre, the authorities of the port
made the captain take her away in con-

sequence of the petroleum being on
board. Thereupon he went to neigh-
boring ports, but was not allowed to
stay there. Returning to Havre, he dis-
charged his general cargo, and no bill
of lading having been presented to him,
and no application having been made
to him for the delivery of the petroleum,
he brought it back to London. On the
shipowner claiming freight,back freight,
demurrage, and expenses, it was

Held, that he was entitled to freight,
back-freight, and expenses. Freight is
earned by the carriage and arrival of
the goods ready to be delivered to the
merchant. And although the petroleum
could not be landed at Havre, it was
in the port a reasonable time, during
which the owner might have received it;
and the freight was accordingly earned.

2. In a case where no application for de-
livery is made, the captain may land
and warehouse the cargo at the expense
of the merchant; and where that is for-
bidden by the authorities of the port, he
is not justified in destroying the cargo;
but in the absence of advices he may
take it to such a place as in his judg
ment is most convenient for the mer-
chant, and may charge to the merchant
all expenses properly incurred; conse-
quently, here the shipowner was enti-
tled to back-freight and expenses. The
demurrage and the expenses incurred
in the ineffectual attempt to land at the
neighboring ports were not allowed, but
were looked on as part of the expenses
of the voyage.
Gaudet v. Brown. 103

3. An apprehension of capture founded
on circumstances calculated to affect the
mind of a master of ordinary courage,
judgment, and experience, will justify
delay in the prosecution of a voyage;
and a ship is not answerable in a suit
under s. 6 of the Admiralty Court Act,

1861, for damage to cargo caused by
such delay. Anderson v. Owners of San
Roman
230

4. A foreign ship was chartered to load a
cargo of rice at a port in the East In-
dies, and therewith proceed to Belle
Isle, Scilly, Queenstown, or Falmouth,
for orders to discharge at a port in the
United Kingdom or on the Continent
between Havre and Hamburg. The
vessel loaded her cargo and proceeded
to the port of Falmouth, and there re-
ceived orders to go to Bremen, where
she discharged her cargo. It was al-
leged that the cargo had suffered dam-
age in the vessel. After discharging
her cargo, the ship sailed to Cardiff on
a new voyage, and was there arrested
in a suit instituted on behalf of the con-
signees of the cargo of rice under the
6th section of the Admiralty Court Act,
1861:

Held, that the cargo of rice was car-
ried into a port in England within the
meaning of the words in the 6th section
of the Admiralty Court Act, 1861, and
that the court had jurisdiction to enter-
tain the suit. The Piere Superiore. 648

5 A screw steamer fell in with a disabled
bark in the English Channel, and in an-
swer to signals of distress approached
her to render assistance. In rendering
salvage services to the bark damage was
caused to that vessel by the negligent
navigation of the screw steamer, the
two vessels coming into collision on
three occasions. To recover for the dam-
ages sustained in these collisions, the
owners of the bark promoted a cause of
damage against the steamer, and subse-
quently an action for the recovery of
salvage remuneration was brought by
the owners of the steamer against the
bark. On the two causes coming on to
be heard together, the court

Held, that the owners of the bark
were entitled to recover in the damage
cause, and that the owners of the steam-
er were entitled to recover in the sal-
vage cause. The Butler.

655

6. A steam-vessel incurred serious damage
by a collision, and her master ordered
her boats to be got out. Some of her
crew, without leave from the master,
got into one of the boats and rowed
away. The boat's crew were afterwards
picked up at sea, and rescued from a
position of danger, by a smack. In a

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