time to time, the last renewal being after the adjucation in bankruptcy. The assignee insists that for this reason the debt is not provable. It is thought, however, that under the peculiar phraseology of the bond and in view of the obligation there created, it would be unjust to treat the liability of the bankrupt as that of an indorser simply. At the time of the bankruptcy he was cleady liable on the bond in tLe event of the failure of the makers of the note to pay. True, his liability had not then become absolute, but the debt existed and the obligation was created before the petition was filed. Legally and equitably the estate is bound by his contract. The report of the register is confirmed and the proof permitted to remain on file.
In '1'6 MERRELL and olhers, Bankrupts.
(District Oourt, N. U. Net/J) York. March,1884.)
BANKRUPTCy-DEBTS CONTRACTED BY BANlUlUPT AFTER PROCEEDINGS COMM1l:NCED.
A dtlbt contracted by a bankrupt subsequently to t,he commencement of proceedings against him cannot be proved in bankruptcy.
This is an appeal fro In a decision of the register sustaining certain proofs of debt. The petition in bankruptcy was filed November 13, 1873. On the twenty-sixth of the same month the bankrupts contracted the indebtedness in question. The adjudication was dated February 27, 1874. The proofs of debt were made February 13, 1875. The creditors contend that their proofs should stand, for the reason that the indebtedness upon which they are founded was due and payable at the time of the adjUdication. The assignee insists that they should be expunged beca'Q,se the indebtedness ,was contracted subsequently to the proceedings in baukruptcy. eharles F. Durston, for assignee. Theodore M. Pomeroy, for creditors. COXE, J. Section 5067 ofthe Revised Statutes provides: ",That all debts due and payable from the bankrupt at the time of the commencement of the proceedingli in bankruptcy · · · maybe proved against the estate of the bankrupt.'" The proceedings are coinmen,ced (section 4991) when the petition is filed. provisions were in force at the time the proofs in this matter were ,presented to the regiElter. The indebtedness upon whij}h the proofs are founded was nof contract,ed Qntil 13 days after the proceedings' were com. m,enoed. The (lQnclusion fo,llo)Vs, that the proofs should not be permitted to s.tand. Even before the Revised Statutes, and before the substitution of thewords "commencement of proce,::Jdings in bankruptcy" for the words ,"adjudication of bankruptcy" in section 19 of
the bankrupt law, the weight of authority favored a construction lim· iting the proof of debts to those existing at the time of filing the petition. The proofs should be expunged·
THE ALINE. l
(DiBtrict (Jourt, E. D. New York.
SHIPPING DELIVERY - PERISHABUt WEATHER-"AcT OF GOD."
DISOHARGE IN FREEZING
A steamship broug-ht a consignment of oranges to New York, where she arrived on December 29th. The weather was so cold as to render it impossit,_e to land oranges without freezing them, and continued below zel'O for several days. The oranges were landed in spite of theconsigIUle's.objection, and their value was for the most part destroyed. lIeld, tI/-at the act whlCh destroyed the fruit was not the" act of God," but of man, in discharging the oranges at an unsuitable time.
A vessel is not .. ready to discharge," within' the meaning of a prOVIsion in the bill of lading that all goods are" to be taken froin along-side immediately the vessel is ready to discharge," when it is impo,Ssible for her to discharge without destroying the cargo. 3. SAME-" EFFECT OF CLIMATE." __ " Effect of climate," used in a bill of lading, does not apply to the .effect of a temporary frost.
4. SAME-NEGLIGENOE. Where it was proved that there was no necessity to land the oranges at
2. SAME-ExCEPTIONS IN BILL OF LADING-VESSEL READY.TO DISCHARGE.
that time, either because other consignees had cargo, which could not be separated from the libelant's, or because of the engagements of the vessel, it was held to he negligence on the part of the vessel to discharge at that time, and a decree was ord(!red in favor of tbe libelant.
In Admiralty. Jas. K. lIill, Wing et Shoudy, (R. D. Benedict, of counsel,) for libelant. McDaniel, Wheeler <to Souther, for claimants. BENEDIOT, J. This action is brollght to recover the value of a consignment of oranges shipped on board the steamship Aline, ,in Jamaica, to be delivered at New York. There is no substantial dispute in regard to the material facts. Tbeoranges were shipped in good order, and arrived in New York, in like order. The da.y on which Wednesday,December 29th. the steamer arrived at New York, was so cold as to render it impossible to land oranges .without freezing The weather continued cold, indeed below zero, until the following Monday. The steamer commenced to land orangea on the $nd Friday of her arrival, and on that and the foUo,wing day landed the whole consignxqent. The necess.ary conseQuence was
R D. & Wyllys Benedict, of the New Y orkbar.