SUPREME COURT.

Evening Star, Issue 2829, 13 March 1872, Page 2

SUPREME COURT.

IN BANCO. Tins Day. (Before his Honor Mr Justice Chapman.) BATHGATE V. BANK OP OTAGO. This was an action brought by the plaintiff as trustee of L. Court, a bankrupt, to determine the defendants’ title to certain goods formerly the property of Court, which they had seized, and sold under a bill of sale. The defendants had lent Court a sum of money, and as a security, had taken a bill of sale conveying or purporting to assign, not merely goods, then in existence upon the property known as the Provincial Hotel, but also property to be assigned after the date of the bill of sale. On June 12, 1869, the manager of the Bank, under the authority of the bill of sale, entered and took possession of all that he found upon the premises, and left a clerk of the Bank in charge. Court became bankrupt shortly after, and the plamtiff is the trustee under the bankruptcy and his [claim is founded upon this: that on June 12, some hours before the manager of the bank entered and took possession of the stock, Court committed a second act of bankruptcy “by beginning to keep house,” i.e. he shut himself up in a room and ordered his servants to deny him; and that as the plaintiff’s title relates back to the prior act of bankruptcy, the seizure and possession of the defendants were too late. To this the defendants answered that they were protected by the 179 th section of the Bankruptcy Act, not having notice of the prior act of bankruptcy. His Honor’s opinion at the trial was in favor of that view, and the defendants had a verdict; but Mr Barton, on behalf of the plaintiff, succeeded iu establishing a doubt in his Honor’s mind whether there might not be a substantial distinction as to different classes of property seized. As to the things in existence at the time of the expiration of the bill of sale, there was no doubt; they were the property of the bank, and although Court remained i possession, his possess! m was co-existent with the nature of the security. But the deed also purported to assign after acquired property which was even susceptible of a ditinction which might bring it under two different rules. Some of it was specific and capable of specific identification, but a large poniou consi tid of fluctmting stock, and it was strongly urged that Wolro d v. Marshall went no further than to apply to specific chat! els a nd not to fluctuating st >ck—a distinction to which the case of Belding v. Head lent some suppo t. To avoid a new trial his Honor required the jury to assess the value of the several classes of property, and he gave Mr Barton leave for a rule to enter the verdict for the plaintiff, either with LIO or L 5 damages, the assessed value of both classes of after-acquired property or, failing that, with L7BO damages, the assessed value of the fluctuating stock, should he succeed in establishing the plaintiff s title to both or to the latter. Accordingly Mr Barton move! in that direction. His Honor now gave judgment, which was, that for reasons which he stated at length, he thought the transaction was protected by the 179 th section of the Bankruptcy Act of 1867, and therefore that the rule must be discharged. Rule discharged accordingly, with costs.

COSTS V, M‘DONALD. This was a rule obtained on behalf of the plaintiff, calling on the defendant to show cause why the verdict should not be entered for the plaintiff on the first, second, or fourth issues -or, failing that, why there should not be a new trial on the ground that the verdict was against evidence, and also on an alleged misdirection. The action was for use and occupation upon the ordinary money counts, with a sp ;cial count for the wrongful conversion of a boat. His Honor, in giving the only issue to which the claim for a new trial applied was that referring to the boat, on which issue Mr Haggitt, plaintiff’s counsel, assessed the damages at L 33. But he could not under the rule order the verdict to be entered, while he thought a new trial in such a questionable case was an evil to be avoided, if possible. All that he could do, however, was to order that the rule for a new trial be made absolute, the costs to abide the event, unless the defendant should consent to the verdict being entered for the plaintiff, with L 33 damages ; and in the event of such consent, the rule would be discharged without costs.