SUPREME COURT.

Evening Star, Volume VIII, Issue 2301, 21 September 1870, Page 2

SUPREME COURT.

IN' BANCO. Tms Day. (Before Mr Justice Chapman ) nr.IVKU ASP ANOTHER V. I’ITT. His Honor delivered judgment in tins matter, which was a nut on to dissolve an injunction obtained in May last, restraining the Messrs Gollibrand from disposing of certain cattle which they claimed under a bill of sale executed in February. ISGS. The facts upon which the plaintiffs founded their equitable title were as follows : ruary, 1868, the defendant Pitt was in posBC'sion of a, farm at It In akin, and in order to secure to the other defendants the due payment of a loan of 1.500. executed a bill of sale by way of mortgage of certain cattle specilied in the sehe lulc annexed to the deed. Although it was nt stated in the declaration, it appeared by the bill of sale that all after acquired cattle were included in the security. Dp on this clause much of the argument turned. The defendant Pitt was left in possession of tile cattle, and dealt with them as if they were his own, making sa’cs from time to time, and app’ying the proceeds for his own purposes. The plaintiffs and Pitt had in the year 18(i9 a number of transactions together—the latter purchasing cattle and sheep from the former. Being

indebted to them in the amount of two bills of sale for Ll9O and F92 10 3 , the plaintiffs in December, IBG9, agreed to give Pitt time, in consideration of the promise given by him. that be would hold fifty head of cattle on. account of the plaintiffs, and would keep and depasture the same until the L 1.90 bill was paid. A. second and similar agreement was set upin regard to certain sheep, to secure the payment of the LO2 10s bill. This second agreement, it was alleged, took place in February la-d. In the early part of the month of May, Messrs Gellibrand, conceiving themselves possessed of the power under the bill of sale, advertised the whole of the cattle and stock then on the farm of Pitt for sale by auction on the 14th of May, whereupon the present action was commenced and the injunction obtained. The grounds upon which Messrs Gellibrand sought to have the injunction removed were mainly two—first, that in moving for the same the plaintiffs wore guilty of the concealment of an important fact, viz., that the bill of sale assigned cattle to be acquired subsequently to the date of the deed—a fact that must have been known to them, for they referred to the registry of the bill of sale; second, that no equity had been shewn as against the Messrs G llibrand. As to the second ground, it was contended by Air Macassey (who appeared for the plaintiffs) that the clause in the bill of sale purporting to assign after-acquired property was of no effect whatever. Undoubtedly, observed his Honor, things not in. esse at the time of the execution of the deed were not assignable at common law. There were numerous cases in point, especially between assignees and sheriffs and execution creditors. But afteracquired propcity might bo assigned in equity where the contest was between rival equities, and where there had been nothing to disturb the equa’ity of those equities—such as laclie'—the equities had been upheld. After commenting on the arguments of counsel, and the cases cited on both sides, his Honor noticed the second ground of Mi* Macassey’s argument, observing that Pitt was undoubtedly Fit in possession, as stated. He held that preference should be given to the registered bill of sale, and he did not think it had been defeated by the continued possession of Pitt, because that possession was consistent with the deed and with the nature of the mortgage security, and therefore could not be treated as acquiescence within the meaning of the cases cited. For these reasons the injunction would be dissolved, with costs.