DISTRICT COURT.

Globe, Volume XXII, Issue 1980, 29 June 1880, Page 2

DISTRICT COURT.

CHRISTCHURCH. Tuesday, June 29. ice's tbustees t. bane oe new south WALES, The following ia the text of the judgment given by hia Honor Judge Ward in this cape on Friday last: — Hia Honor said : —“ lam of opinion that judgment in this caee must go in favour of the plaintiffs. It was contended by Mr Garrick, on behalf of the defendants, that the mortgage of stock operated as an unregistered bill of sale over the chattels claimed by the Bank, and that this bill of sale was perfected hy entry and seizure before he filed his declaration of insolvency, so that the transaction was entirely outside of the Bills of Sale Act. He also urged that by the Land Transfer Act the Bunk had a right, under their overdue mortgage, to distrain on Loe’a property, whether he were bankrupt or not. With respect to the first contention, I am clearly of opinion that the case ex parte Jay in re Benkhom (9 L.R., Chancery Cap. 704) cited by Mr Harper is in point. If a creditor has not got possession, and has not taken the goods both out of the actual and out of the apparent possession of the debtor at the time that an act of bankruptcy is committed, then the Bills of Sale Act applies, and the trustee can come in. Here nothing was done by the Bank beyond visiting the house and taking an inventory, which last could scarcely have been completed before Loe filed, and the case just cited, with several others, shows this to be insufficient. It may be said that this was all the defendants had time to do during the period which elapsed between the seizure and Loe’s filing. This will not serve them. They slept on their rights and took no step towards enforcing their mortgage until after attending a meeting of Loe’a creditors, when they doubtless ascertained that he was insolvent. Moreover there is no security which is looked upon with lees favour by the law than an unregistered bill of sale, and ia all cases such as the present the clearest evidence will be required of the reduction of the chattels claimed, with both actual and formal possession by the unregistered assignee. With respect to the power claimed by defendants to distrain under their mortgage, I have only to say that the power of distraint given by the Land Transfer Act refers merely to rent actually due by a tenant or occupier of the land mortgaged. In this case the mortgagor was in occupation, and the clause cited does not apply, as there could be no rent due from him. The decision on these points being in favour of plaintiffs, it is unnecessary to decide on the others raised on their behalf by Mr Harper, viz., that the title of the trustee must relate back to the whole day on which the act of bankruptcy was committed, and that the words “ station plant ’’ cannot possibly include after-acquired horses and farming implements. There is, however, one point which has not been alluded to by counsel. The mortgage of stock contains apower of attorney, which renders a ten chilling ccimp necessary, but is not stamped. In fixing tne value of the chattels claimed, I shall take Mr Matson’s evidence as the most reliable. Judgment will be given for £964 6s, with interest at the rate of 8 per cent, from the date of seizure, by way of damages.” In reply to Mr Garrick, Hia Honor said in reference to the entry and seizure, that bad the defendants prior to Lae’s filing removed the horses and implement, thus giving notice to all persons that they were in hostile possession of the property of the mortgagor, they might have been entitled to retain them, notwithstanding the non-registration of their deed, assuming it to be duly stamped, and judgment to be in their favor on the two points left undecided.