1829.

NAYLOR

V.

TAYLOR.

a

housed; there were no means of forwarding it, and it was afterwards sold by public auction. Notice of abandonment having been given, the assured claimed for a total loss. Now here, beyond all question, the voyage was lost; the very case supposed by Lord Ellenborough in his judgment in Anderson v. Wallis actually occurred. There was permanent incapacity of the ship to perform the voyage;' there was "a destruction of the contemplated adventure:" yet this was held not to be a total loss. Lord Ellenborough founds his judgment on this: that there was a retardation only of the adventure, for the cargo might have been forwarded by the next spring. He adds, "If, indeed, the cargo had been of a perishable nature, this would have been a case not of retardation only, but of destruction of the things insured." And Mr. Justice Bayley, in an elaborate judgment, observes, "On reference to the language of this policy, it is difficult to infer that the assured were to be entitled to abandon, on the ground of a mere loss of voyage. There are cases, certainly, which speak of a loss of voyage as a ground of abandonment; and such cases may be conceived. For instance, if a ship were so damaged, as to be obliged to land her cargo at an unfrequented place, where there was no opportunity of disposing of the cargo, and the ship owners could not procure another vessel to forward it, except at an expense exceeding the value of the goods; such a case, I think, might warrant an abandonment, and throw the loss on the underwriter. But there is a great difference between the case just put, and this case, where goods are safely warehoused in an undamaged state, and where there is nothing but a disappointment of voyage to constitute a ground of abandonment." Lastly, in the case of Cologan v. The London Assurance (a), which was decided in the same year, the Court insisted strongly on the circumstance of the loss of voyage, though the facts were such as rendered it scarcely necessary to advert to that point at all. There were, clearly, circumstances authorising the abandonment; and, at the time of bringing the action, there was every probability that no part of the goods insured would ever produce any thing to the owner. Lord Ellenborough, how

(a) 5 M. & S. 447.

aş

ever, says,
"A total loss occurred in the first instance; and
while the assured had no reason to believe that events had
changed the nature of this loss, they abandoned. Now
where there has been a total loss and an abandonment, we
must look to the situation of things before action brought, in
order to ascertain whether the assured has since been restored
to his rights, so as to do away the effect of the abandonment.
In the present case, there has not been any restitution, con-
sidering it with reference to the main purpose of prosecuting
the voyage insured." And Mr. Justice Bayley says,
"The
object of the policy is to insure against the risk of failure, by
reason of the perils mentioned in the policy; that is, in the
present instance, that the cargo should reach the port of des-
tination."-There is certainly some difficulty in extracting
from these various and occasionally almost inconsistent de-
cisions, any intelligible principle. Is the policy, as Mr.
Justice Bayley says, a guarantee that the cargo shall reach
the port of destination? If so, then certainly the absolute
defeating of that voyage will amount to a total loss. And
the question will be, When may the voyage be considered as
lost? Not, it seems, by the destruction of the contemplated
adventure for the time being. If the goods can be sent on,
even at some distant period, and are not likely to sustain
material injury by the delay, then the voyage is not lost,
and there is no ground for abandonment. But, with great
deference, we would venture to submit, that the policy is a
contract of indemnity, in case of loss of the thing insured
by perils of the sea in the course of a certain specified
voyage; and the only question, therefore, as it seems to us,
is this whether (supposing the underwriters to have pro-
tected themselves against an average loss) there has been
such a loss of the goods, arising out of those perils, as ren-
dered them utterly worthless to the owners at the time
when the action was brought. We apprehend that the two
cases in the text, viz., Parry v. Aberdein, and Naylor v.
Taylor, may be tried by this test, and that the decisions will
be justified by it.

1829.

NAYLOR

v.

TAYLOR.

1829.

A builder being in embarrassed circumstances, caused to be

ACT OF BANKRUPTCY.

In the KING'S BENCH.- Hilary Term.

COTTON V. JAMES.

TRESPASS for breaking and entering plaintiff's dwellinghouse, and taking and carrying away his goods. The defendant pleaded, first, the general issue; second, the removed from bankruptcy of the plaintiff. The plaintiff disputed the some unfinish- commission, and at the trial before Lord Tenterden, ed houses Middlesex sittings after Michaelmas term, the defendant having, in his Lordship's opinion, failed in proving a valid act of bankruptcy, a verdict passed for the other building plaintiff. materials, and placed them in the keeping of a friend: Held, no act

which he had contracted to build, window sashes and

the words, "transfer or delivery," in the statute,

meaning such

a transfer as

passes the property.

F. Pollock now moved for a new trial, on the ground of misdirection by the learned Judge on this point. of bankruptcy, The act of bankruptcy contended for was founded on that clause of the 6 G. 4. c. 16. s, 3. which enacts, that if any trader shall make or cause to be made any fraudulent gift, delivery, or transfer of any of his goods or chattels, with intent to defeat or delay his creditors, he shall be deemed to have thereby committed an act of bankruptcy. The evidence to support the commission was, that the plaintiff being a surveyor and builder, and in embarrassed circumstances, had in October 1828 caused to be removed from some unfinished houses which he was then under a contract to build, some sashes and sash-frames, and building materials, to the value of about 800l., and placed them in the keeping of a friend of his. This was a fraudulent delivery of his

goods to another, with intent to delay or defeat the claims of his creditors, and the evidence of such intent ought to have been left to the jury. [Lord Tenterden C. J. Then you must also contend, that if goods are secretly removed to defeat a judgment creditor, that would be an act of bankruptcy.] If goods are removed in order to pay one creditor in preference to the rest, that would be an act of bankruptcy; à fortiori, if they are removed in order that none may be paid.

Lord TENTERDEN C. J. If any thing like this could be an act of bankruptcy, still you must show it to be the act of the party himself. But even if it had been shown to be his act, my clear opinion is, that it is no act of bankruptcy within the meaning of the statute.

BAYLEY J. Concurred.

LITTLEDALE J. The words "transfer or delivery," mean by way of security to some one, so that the bank-rupt ceases to have a property in the goods.

PARKE J. I agree with my brother Littledale; the words "transfer or delivery," are coupled with the words "conveyance of goods," &c. and must mean where the property is parted with.

Rule for a new trial refused on this point,
but granted on the ground of excessive
damages, on which also it was moved.

1829.

COTTON

v.

JAMES.

1829.

PAYMENT TO BANKRUPT, WHEN
PROTECTED.

In the KING'S BENCH. - Hilary Term.

HILL and Another, Assignees of HOLMES, a Bankrupt, v. FARNELL.

A. bought of TROVER for a parcel of books, laid in the first count as

B., a hopmerchant, a library of books, and paid him the price. B. had previously

the property of the bankrupt, in the second as that of the plaintiffs, as assignees. Plea, the general issue. The cause was tried before Lord Tenterden C. J. at Guildhall, sittings in Michaelmas term 1827, when a verdict was found for the plaintiffs for 1000l., subject to the opinion of the Court upon a case, the substance of which is comprised in the following deposition made and on which by the defendant on oath before the commissioners of a commission bankrupt, which was read at the trial as part of the issued within two months of plaintiff's evidence:

committed an act of bankruptcy, of which A. had

no knowledge,

the transac

tion: Held, that this payment was protected by the 6 G. 4. c. 16. s. 82. (a), and that the assignee of B. could not recover back the books, at least without tendering the price.

(a) Which enacts, that all payments really and bonâ fide made, or which shall hereafter be made, by any bankrupt, or by any person on his behalf, before the date and issuing of the commission against such bankrupt, to any creditor of such bankrupt (such payment not being a fraudulent preference of such creditor), shall be deemed valid, notwithstanding any prior act of bankruptcy by such bankrupt committed; and all payments really and bonâ fide made, or which shall hereafter be made, to any bankrupt, before the date and issuing of the commission against such bankrupt, shall be deemed valid, notwithstanding any prior act of bankruptcy by such bankrupt committed; and such creditor shall not be liable to refund the same to the assignees of such bankrupt: provided the persons so dealing with the said bankrupt had not, at the time of such payment by or to such bankrupt, notice of any act of bankruptcy by such bankrupt committed.