Sandford v Stewart; The Ruby
| Jurisdiction | England & Wales |
| Judgment Date | 05 November 1900 |
| Date | 05 November 1900 |
| Court | Probate, Divorce and Admiralty Division |
Probate, Divorce, and Admiralty Division
Barnes, J.
The Ruby
Lyon v WeldonENR (1824) 2 Bing. 334
Merchant Shipping Act 1894, s. 36
Bankruptcy Act 1883, ss. 43, 44, 49
Mortgage Act of bankruptcy before mortgage Merchant Shipping Act 1894, s. 36
Lyon v Weldon (1824) 2 Bing. 334) followed.
146 MARITIME LAW CASES. ADM.] THE RUBY. [ADM. Monday, Nov. 5,1900. (Before BARNES, J.) THS RUBY, (a) Mortgage - Act of bankruptcy before mortgage-Merchant Shipping Act 1894, s. 36 - Bankruptcy Act 1883, as. 43, 44, 49. Where a mortgage is granted on a ship after the mortgagor has committed an act of bankruptcy,' in respect of which he is subsequently adjudicated a bankrupt, the mortgage is protected by sect. 49 of the Bankruptcy Act if the mortgagee had no notice of the act of bankruptcy at the date of the mortgage, notwithstanding the fact that the ship remains in the possession of the mortgagor up to the date of the receiving order. Lyon v. Weldon (1824) 2 Bing. 334) followed. THIS was a motion on behalf of a mortgagee of a British ship for an order that he was entitled to have paid out of court to him the sum of 2212. 178. 8d., being the proceeds of the sale of the steamship Ruby. The case is reported on other grounds in 78 L. T. Rep. 235 and 267; 8 Asp. Mar. Law Cas. 389 and 421; (1898) P. 52 and 59. On the 1st Sept. 1897 the owner of the steam-ship Ruby mortgaged her to the plaintiff, and on the 2nd Sept. the mortgage was duly registered. Shortly afterwards an action in rem was commenced in the Bow County Court against the owner of the Ruby by the owners of a skiff for damage by a collision, and on the 3rd Sept. the Slaintiffs obtained judgment for 212. 17s. 10d. debt and coats The owner of the Ruby having made default in payment a warrant of execution was issued, and the vessel was seized by the high bailiff of the Bow County Court. The vessel was duly appraised and sold for 3802. on the 28th Oct., but the registrar of shipping at Newhaven refused to register the bill of sale except subject to the plaintiff's outstanding mortgage. On the 23rd Nov. a receiving order was made against the mortgagor, the original owner, and the mortgagee exercised his power of sale under the mortgage. The mortgagee having intervened in the collision action, in Jan. 1898 proceedings were taken before the President (Sir F. Jeune) (78 L. T. Rep. 267; 8 Asp. Mar. Law Cas. 389; (1898) P. 52), who ultimately set aside the sale by the mortgagee, upheld the sale by the bailiff, and ordered the proceeds to be brought into the High Court. The mortgagee now claimed the balance of the fund in court as against the trustee in bankruptcy of the mortgagor. The act of bankruptcy on which the receiving order was made was committed on the 7th July, and it was proved that at the date of the mortgage the mortgagee had no notice of any act of bankruptcy committed by the owner of the Ruby. By sect. 36 of the Merchant Shipping Act 1894 (57 & 58 Vict. c. 60): A registered mortgage of a ship or share shall not be affected by any act of bankruptcy committed by the mortgagor after the date of the record of the mortgage, notwithstanding that the mortgagor at the commencement of his bankruptcy had the ship or share in his possession, order, or disposition, or was reputed owner thereof, and the mortgage shall be preferred to any right, claim, or interest therein of the other oreditors of the bankrupt or any trustee or assignee on their behalf. By sect. 43 of the Bankruptcy Act 1883 (46 & 47 Vict. c. 52): The bankruptcy of a debtor, whether the same takes place on the debtor's own petition or upon that of a creditor or creditors, shall be deemed to have relation back to, and to commence at, the time of the act of bankruptcy being committed on which a receiving order is made against him, or, if the bankrupt is proved to have committed more acts of bankruptcy than one, to have relation back to, and to commence at, the time of the first of the acts of bankruptcy proved to have been oommitted by the bankrupt within three months next preoeding the date of the presentation of the bankruptcy petition; but no bankruptcy petition, receiving order, or adjudication shall be rendered invalid by reason of any act of bankruptcy anterior to the debt of the petitioning creditor, Sect. 44. The property of the bankrupt divisible amonget his creditors . . . shall comprise the following particulars : (i.) All such property as may belong to or be vested in the bankrupt at the commencement of the bankruptcy, or may be acquired by or devolve on him before his discharge. (iii.) All goods being, at the commencement of the bankruptcy, in the possession, order, or disposition of the bankrupt in his trade or business, by the consent and permission of the true owner, under such circumstances that he is the reputed owner thereof: Provided that things in action other than debts due or growing due to the bankrupt in the course of his trade or business shall not be deemed goods within the meaning of this section. Sect. 49. Subject to the foregoing provisions of this Act with respect to the effect of bankruptcy on an execution or attachment, and with respect to the avoid- (a) Reported by BUTLER ASPINALL, Esq., Q.C., and SUTTON I TIMMIS, Esq., Barrister-at-Law. I MARITIME LAW CASES. 147 ADM.] THE SANTIAGO. [ADM. ance of certain settlements and preferences, nothing in this Act shall invalidate, in the ease of a bankruptoy (c) Any conveyance or...
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The ‘Turtle Bay’
...(1801) 4 C. Rob. 3], and has been followed in subsequent judgments such as Castrique v. Imrie [ (1869-70) L.R. 4 H.L. 414] and The Ruby [ [1898] P. 52]. The integrity and finality of the foreign judicial sale has been upheld in France, in the U.S. and in Canada. An equally famous dictum is ......
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The "Turtle Bay"
...[(1801) 4 C. Rob. 3], and has been followed in subsequent judgments such as Castrique v. Imrie [(1869-70) L.R. 4 H.L. 414] and The Ruby [[1898] P. 52]. The integrity and finality of the foreign judicial sale has been upheld in France, in the U.S. and in Canada. An equally famous dictum is o......