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. ACTION. 1. An evil intention or motive will not ADMINISTRATORS. See EXECUTORS AND ADMINISTRATORS, ADMIRALTY. 1. Plaintiff's ship with a general cargo sequence of the petroleum being on Held, that he was entitled to freight, 2. In a case where no application for de- 3. An apprehension of capture founded 1861, for damage to cargo caused by 4. A foreign ship was chartered to load a Held, that the cargo of rice was car- 5 A screw steamer fell in with a disabled Held, that the owners of the bark 655 6. A steam-vessel incurred serious damage |