DISTRICT COURT.

Nelson Evening Mail, Volume XV, Issue 40, 16 February 1880, Page 2

DISTRICT COURT.

[Before His Honor Judge BnoAD.] ~ ; Acton Adams v. Edward Boytt. The evidence in this case } which was heard on Thursday, was published at the time. His Honor delivered the following judgment this morning : — There appear to be two questions to be decided in this case. First— Wai there on the part of the plaintiff a right as against, the defendant to theimmadiate possession of the goods at the time of the alleged conversion?. And second— Was the sale by the mortgagor such a conversion ai to entitle plaintiff to maintain trover against the vendee? As to the first question: The plaintiff's right of possession depends upon whether there had been a •« default" on the part of the mortgagor. Clearly there had been, unless there was a waiver, and it is contended that the fact of plaintiff having taken no steps to recover the money, and merely debiting the mortgagor with the amount in his books is proof of ouch waiver. The case of Albert v. Grosvenor Investment Company, L.R. 32, Q B. 123, was cited in sap. port of this contentiou. In that case it w*s held "That the time for payment having been voluntarily extended by the duly authorised agent of the defendants they could not treat that which had been done with their sanction as a default." It will be noticed, however, that the time had been extended by express arrangement. There is nothing of that kind here, and there is not sufficient upon the facts, proved to bring this case within the principle laid down in the case cited. I think, therefore, that at the time the conversion complained of took place the plaintiff was in a situation to require immediate possession of the goods, and therefore, the property being also in him that this action is maintainable. Upon the second question it seems to me that, even if there had been no default, the sale by the mortgagor without authority from the mortgagee was a conversion. And as the defendant was subsequently informed of the plaintiff* rights, and refused to deliver up tbe sheep, he must be presumed" to have recognised and adopted the mortgagor's act, and therefore upon this ground also the plaintiff could maintain an action of trover against him. (Fenn v. Bittleston, 21 L.J , Ex. 41 ; Brierly v. Kendall, 17 Q. 8., 937; McCombie v. Davis, 6 Eaßt, 540. Judgment for plaintiff for £34 16s, and costs £9 14s. [In Bankruptcy.] On the motion of Mr Atkinson, on behalf of James Callan and James Colvin of Westport, a rule nin was granted calliDg upon Hugh Jones, late of Westport, to show cause why he should not be adjudicated a bankrupt.