1816.

Notwithstand. ing there has been no notice to dispute the commission, act of baukruptcy, &c. under the 46

Geo. 3. c. 135.

s. 10. the pro

ceedings are

BROWN and Another, Assignees of RIORDEN, v. FORRESTALL and Another.

TH

HIS was an action for goods sold and delivered. The question was, whether the payment of a bill of 1001. was in the ordinary course of business, and, as such, protected. The plaintiffs' counsel contended, that the defendants knew the bankrupt to be insolvent at the time, and not conclusive had received notice from the plaintiffs that he had committed an act of bankruptcy. The commission stated; but the bore date the 26th of August, 1815, and no notice had been given to dispute the proceedings, &c. them, whether On their being read, the counsel for the defendants they prove an act of bank- objected that they did not prove a sufficient act of ruptcy or not. bankruptcy.

evidence of the

facts therein

Court is still to

form a judg

ment upon

Best, serjeant.-The defendants should have given notice that they intended to dispute the commission; they cannot now object to the proceedings; they are conclusive against them. By their silence they admit all things relating to the bankruptcy to be rite acta.

Solicitor General, contrà. Notwithstanding there has been no notice to dispute the commission and act of bankruptcy, the proceedings are not conclusive. It is true they may be read, but it is still within the breast of the Court to say,

whether they disclose a sufficient act of bankruptcy.

1816.

BROWN and
Another

v.

FORRESTALL

GIBBS, C. J.-They are admissible evidence; but I am still to form my judgment upon them, and Another. whether they prove an act of bankruptcy or

not.

Nothing material arose upon the other part of the case.

Verdict for plaintiff.

Best, serjeant, and Buller, for the plaintiffs.

The Solicitor General and D. F. Jones, for defendants.

[Attornies, Holt and F.-Spanks.]

1816.

A general ship is freighted by

several mer

chants and

voyage: she

parts with her convoy in a gale of wind, and is after

wards attack

engages and

THIS

TAYLOR and Others v. CURTIS.

HIS was an action of assumpsit to recover a contribution from the defendant in the na

sails upon her ture of general average, under the following circumstances:-The plaintiffs were owners of the Hibernia, a general ship, on board which the defendant had shipped some goods, consigned to ed by an Ame- certain merchants at St. Thomas's, in the West rican priva teer, which she Indies. In November, 1813, the Hibernia sailed beats off, with on her voyage, under convoy of his Majesty's ship the loss of one the Queen. In consequence of a hurricane she four wounded; was separated from her convoy, and on the 11th of December fell in with an American privateer. The maged in the Captain, seeing no prospect of escaping by sail, conflict; but determined to resist. The Hibernia mounted only port and deli- six guns, and her crew consisted of 22 men.

man killed and

her hull and

rigging are

likewise da

she reaches her

vers her cargo

that the repairs

the expences

The

safely. Held, American privateer carried 22 guns, and had of the ship, and 125 able seamen on board. Notwithstanding this of curing the disparity of force the Hibernia engaged her, and, wounded sail after a conflict of eleven hours, in which her hull under such cir- and rigging were greatly damaged, one of her crew subject of ge- killed, and four wounded, she succeeded in beating neral average. off the privateer. The Hibernia arrived at St.

ors, are not,

cumstances, a

Thomas's, almost a wreck, and delivered her cargo in safety to the respective consignees. The value of the entire cargo was 21,0921. and the goods shipped by the defendant were to the amount of 1000l. The estimated entire loss to the plaintiffs was 2,9081. and the average, as calculated upon

the defendant's proportionate share, amounted to 1381. 8s. 5d. which the plaintiffs sought to recover by the present action. Part of the charges was for medical and surgical expences for the wounded.

Best, serjeant, for the defendant, contended, that the present loss did not fall within the principle of general average. The owners had made no extraordinary sacrifice for the common benefit; they merely discharged a duty. The sailors were bound to defend the ship from an enemy. This was a loss therefore within the scope of their positive duties as mariners, and gave no right to the owners to call upon the freighters for contribution. There is another strong objection to this action; it is primæ impressionis.

Lens, serjeant, contrà.--The whole concern was in danger of capture; the ship and the cargo. By the extraordinary exertions and sacrifice of the captain and his crew the vessel and the goods on board are preserved. Natural justice requires, in such a case, that the loss should be borne proportionately by all who are interested.

GIBBS, C. J.-I do not think this is general average. It was the duty of the sailors to defend the ship from capture in proportion to their means, and within measures of discretion. By so doing all parties have benefited. But in what respect

have the captain and crew

their proper duty? What

exceeded the line of
sacrifice have they

made which they were not bound to make? The expence of medical and surgical aid must be borne

1816.

TAYLOR

and Others

v.

CURTIS.

by the parties themselves: although this may be an ungracious defence, I am of opinion that it does not fall within the principle of general average.-His Lordship directed a verdict for the defendant, with liberty to the plaintiffs to move to set it aside.

Lens, and Copley, serjeants, and F. Pollock, for plaintiffs.

Best, and Vaughan, serjeants, for defendant.

[Attornies, Annesley and Son.