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deed by which, if carried out, the creditors will obtain some benefit; and as the words "such deed," in s. 198, mean such deed as is within the previous sections, the debtor who fails to bring his deed within their terms is not entitled to enjoy the effects of a discharge in bankruptcy, or to avail himself of the protection of the certificate.

CHANNELL, B. I also think this rule should be discharged on the ground that this is not such a deed as is referred to by s. 198 of the Bankruptcy Act, 1861. There are two sections for our consideration, the 192nd and the 194th. The latter section has in its purview a different kind of deed from the former, and, in conformity with the opinion to which this Court inclined in the recent case of Pearson v. Pearson (1), I am disposed to think that a deed, not within s. 192, but registered with the formalities required for deeds under that section, is effectual to afford protection under s. 198, if it is within s. 194. If, therefore, the deed fell under either of these sections, the defendant might be entitled to relief.

With respect to the construction of s. 192, the general heading of the section must, according to the decision of the House of Lords in Eastern Counties Railway Company v. Marriage (2), be taken as a kind of preamble; if the words of the section clearly go beyond the preamble, they prevail, but if they are doubtful, the preamble may restrain them. Keeping, therefore, the introductory words in mind, we find s. 192 referring to two classes of deeds. The first class relates to "the debts and liabilities of the debtor and his release therefrom;" and, in my opinion, looking for the present at these words without reference to those which follow, the legislature intended that the deed so described should provide for something more than debts and liabilities, and that the words must be read as they are written, conjunctively. But as this deed contains no release, it is not within this part of the section. The second class is introduced by the disjunctive particle; the deeds described in it do not resemble this deed, and my only doubt has been, whether the defendant's argument might not prevail, that the words "or any of such matters" at the end of the second clause refer to the contents of both, so as to dispense with the necessity of (1) Law Rep. 1 Ex. 308. (2) 9 H. L. C. 32,

1867

LATHAM

V.

LAFONE.

1867

LATHAM

V.

LAFONE.

a release in deeds under the first head. But, taking these words in connection with those immediately preceding them, which are separated from the first clause by the disjunctive particle, and are connected with one another by the conjunctive, and taking them in connection with the introductory words of the section, I cannot put upon them the construction which the defendant's case requires. The 194th section carries the matter no further, for the only additional words in that section are those which relate to the conveyance of the debtor's estate, and there is no such conveyance here; the remainder of the section, introduced by the words "or makes any arrangement or agreement with his creditors," certainly do not differ from those in s. 192 in the defendant's favour. The deed, therefore, is not within the description of the deeds to which the act relates, and I prefer putting my decision on this ground, because, looking at the view which the Courts have lately taken as to the discretionary powers of creditors, I think it better not to rely upon the unreasonableness of the deed.

PIGOTT, B. I am of the same opinion. The main object of these sections was to enable the creditors to manage their own affairs, in conformity with a widely felt and expressed desire to try that system. It was clearly intended to confer large discretionary powers on the creditors, and we ought to give every effect to that intention. I agree that if a deed is unreasonable to the extent of absurdity, we ought not to sanction it; but prudence is so much a relative matter, that it becomes very difficult to say conclusively that a deed is unreasonable on this score when the creditors have said it is reasonable; and, except in the case of inequality, we have no certain test to go by. I therefore agree with my Brother Channell, and prefer putting my judgment on the ground that, for the reasons already stated by him, this deed is neither within the preamble nor the words of the section.

Attorneys for plaintiff: Wright & Venn.

Attorneys for defendant: Chester & Urquhart, for Lace & Co., Liverpool.

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BUCKLE v. KNOOP AND ANOTHER.

Ship and Shipping-Charterparty-Freight, Mode of calculating-Measurement at Port of shipment or discharge — Increase of Bulk — Custom · - Evidence of Custom-Notice of Custom.

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By a charterparty made between the plaintiff, a shipowner, and the defendants, merchants at Manchester, it was agreed that the plaintiff's ship should sail to Bombay, and there load a cargo of cotton, and proceed with it to Liverpool, and "deliver the same" on being paid freight at the rate of "75s. per ton of 50 cubic feet delivered; the freight to be paid on right delivery of the cargo." The ship accordingly sailed to Bombay, and received a cargo of cotton which, previously to being loaded, had been subjected, in accordance with the usual practice, to a high hydraulic pressure, so as to reduce its solid contents to a minimum. On being removed from the hold at Liverpool the cotton naturally expanded very considerably, and the plaintiff claimed in this action freight on its measurement when delivered, and not when shipped. At the trial it was proved to be the custom of the Bombay trade to pay freight for cotton goods under a charterparty worded as above, on the measurement of the goods at the port of shipment. No evidence was given to shew that the plaintiff had actual notice of the custom :—

Held, first, that, apart from the custom proved, the freight was payable, on a true construction of the charterparty itself, on the measurement of the goods when shipped, and not when delivered; and secondly, that the evidence of the custom was properly admitted as not being contradictory of the terms of the charterparty. Per Kelly, C.B., and Pigott, B., that the circumstances of the case were such as to raise a presumption that the plaintiff was aware of the custom.

Per Channell, B., that the fact of the plaintiff not having been proved to have had notice of the custom was an objection rather to the weight than to the admissibility of the evidence.

ACTION for balance of freight due from the defendants to the plaintiff under a charterparty, the terms of which, so far as they are material, were as follows: "London, 18th January, 1864. It is this day mutually agreed between T. C. Buckle [the plaintiff], owner of the ship Gloucestershire, and Messrs. De Jersey & Co., of Manchester, merchants [the trading name of the defendants], that the said ship shall sail to Bombay and there load from factors of the said affreighters a full cargo of cotton and wool, and being so loaded shall therewith proceed to London or Liverpool as ordered, on signing bills of lading, and deliver the same in any dock freighters may appoint, on being paid freight as follows, viz. 75s. per ton of 50 cubic feet delivered for cotton and wool. The freight to be paid [in a specified manner] on unloading and right delivery of

or

or

1867

Jan. 17.

1867

the cargo.

BUCKLE

v.

KNOOP.

The captain to sign bills of lading, if required, at any rate of freight, but at not less than the chartered freight, without prejudice to this charter."

The ship sailed to Bombay, and was there loaded with a cargo of cotton by the defendants' factors. It is the custom of the Bombay trade, in the case of charters worded like the above, as well as in other cases, before loading cotton, to measure it-for the purpose of ascertaining the space it will occupy in the hold of the ship, and the freight payable for it—in the following manner. The cotton is submitted, at as short a period before shipment as is conveniently possible, to very high hydraulic pressure, so as to reduce the space it would occupy to a minimum, and freight is payable upon the measurement thus arrived at. In this instance the cotton, after being thus compressed, occupied about six tons of 50 cubic feet each, less than the whole content of the ship. The captain was required to sign bills of lading for the cargo, in which the freight was expressed to be payable "as per margin." In the margin was the measurement of the cotton made in the manner above described. The captain at first objected to this mode of measurement, on the ground that his employer would expect to be paid under the charterparty on the measurement of the cargo as delivered and ascertained at Liverpool. Eventually he signed the bills without prejudice. When unloaded at Liverpool, the cargo, being released from the confined space of the hold, expanded very considerably—to an extent, indeed, far beyond what the ship could have contained. The shipowner was therefore entitled, if the measurement was, upon a true construction of the charterparty, to be made at Liverpool, to a large sum for freight beyond that due to him on the Bombay measurement, and which he had received. This action was brought for the difference.

The cause was tried before Lush, J., at the Liverpool summer assizes, 1866, when the above facts were proved. It was not affirmatively shewn that the plaintiff was aware of the custom in the Bombay trade to pay on the measurement at Bombay, but the charterparty was effected on his behalf by a London broker conversant with that trade. A verdict was entered for the defendants, with leave to move to enter it for the plaintiff for 1407. 7s., on the ground that the freight was to be calculated on the measurement

of the cargo delivered at the port of discharge. A rule was afterwards obtained accordingly, and also for a new trial, on the ground that the evidence of usage had been improperly admitted, first, because it contradicted the terms of the charterparty; and secondly, because it was not proved affirmatively that the plaintiff was aware of the alleged usage.

Mellish, Q.C., and Potter, shewed cause. First, the word "delivered" in the charterparty has nothing to do with the time or place of measurement. It is only inserted to shew that any goods not delivered are not to be paid for. Setting aside the evidence of usage, the charterparty, when fairly construed, indicates that freight is to be paid on the cubic feet occupied by the cargo during the voyage. A shipowner is to be remunerated for the space occupied by the cargo. Secondly, the evidence of usage was admissible, and supports the construction which the charterparty, taken alone, would naturally bear. Thirdly, it was not necessary to prove that the plaintiff had actual notice of the usage. He was a shipowner, and the contract was made on his behalf by an agent conversant with the Bombay trade. The presumption therefore is, that he was aware of the usage.

James, Q.C., and J. A. Russell, in support of the rule. First, the construction placed on the charterparty by the defendants renders the word "delivered" superfluous and without meaning. The same word occurs twice elsewhere in the charterparty, in both cases with an unquestionable reference to the port of discharge. Why, therefore, affix a different meaning or no meaning to it in the clause specifying the mode of paying freight? In • Gibson v. Sturge (1) the bulk of the cargo had increased during the voyage, and it was held (Martin, B., dissenting) that the measurement at the port of shipment was nevertheless to decide the freight payable. But there the charterparty did not contain the word "delivered." In Coulthurst v. Sweet (2) the freight was payable "according to nett weight delivered," words which were assumed by the Court to mean "at the port of discharge." Willes, J., in his judgment, remarks (pp. 653-4) that these words were introduced to exclude the difficulty arising from the decision in (1) 10 Ex. 622. (2) Law Rep. 1 C. P. 649. VOL. II.

M

3

1867

BUCKLE

v.

KNOOP.

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