IMPORTANT JUDGMENT.

Auckland Star, Volume XXVI, Issue 1420, 14 July 1884, Page 2

IMPORTANT JUDGMENT.

Randcrson v. Loydon Brothors,

A irtMiMKNT of considerable importance was given in Iho District Court tliis forenoon by Mr 11. G. Sjtli Smith, in flu) case of Itamlcrson v. Loyilon. The question ut issue was which of tho two holders of bills id' i-alu over the goods of niiu llobertsou is entitled to the proceed* of the sale of these goods. Tho material facts of the action have already been published by us. Having Mummed tip the [mints, His Honor said : The lirst i[ue.-tion raised ujion thwsc facts is whether the bill of sale to Cohen, not having been duly attested in accordance with the ('.mil. Ord. Amendment Act, IST I, S-'.'. until after tiie (;uiniiieneemeiit of this notion, is valid niorlt-ngo of tlie goodtj. Tlie bill nf -ale purports to bo an indenture, and it is i-mitci-dod that, purporting to In: v deed and not complying with tho statutory r, i|uiii.mi.nts of ._ deed, it,ia altogether void. it i- abundantly clear by acurrent of authority from Littleton's Tenures downward-1

iseo Reeves v. Copper, S 1...1., N.S., C. p. II ; Flory v. Denny, 1.1 L.J., N.S., Ex. ■J-.'.'ii that a mortgage of personal chattels may be effected without a deed, and therefore, if the document'had had none of tho attributes of a deed : if it had not purported to be an indenture ; if it had had no seal and no attestation clause, it would have been a valid mortgage. It seems, therefore, contrary to the principle inrjmhaijium mom

iwv/i to hold that where the document would have been good in tho absence of all the attributes of a deed, it is rendered invalid by the presence of sums which in this case are mere surplusage. [ think, therefore, Ihe lull of sal.- is valid as a mortgage of these goods, ;„„( th.it Cohen was entitled under it to take possession on the sth Feb. Tho next question is whether, assuming my view as to the validity of Cohen's bill of sale lo lie correct, wtro the goods In the possession, or apparent possession, of the bankrupt on the Dtli February. The placing of the bailiff in possession without nmre, hi..- been held to be taking formal poss, >-;,,-., ,„,!>•. Something more

i- n.ivs- iry, though what that something more is lias never been elcarly delilluil. It is, perlinps, a question of fact in each cai-c. Here the -umothing more relicil on i- the affirming ot the notice by t'ohen on the <it.li February. This notice referred to the hill of .-ale, and thus came within the principle laid iLr.ui by Mellish, L..F.. in ,-r parte Lewis in re Henderson, L.R, li, eh. npp. iMii, where he said : " If hills announcing a gale aro to be relied ii|x.n as tailing the goods out of the possession, or apparent possession, of tho bankrupt, they ought to contain a statement that tho sale is to be made under a lull of sale." At first sight it might seem that, this notico satisfied the requirements mentioned by the L.J, but his remark was to be taken in conjunction with the tact of the particular case .sub jinOiv. There the bills were auctioneers' bills, which were pouted in the ncigbotirhood of the premises, and remained apparently in conspicuous positions for some time, hut were held to he insufficient to take the goods out of the apparent possession of the bankrupt, inasmuch as they Contained no reference to the lull of sale Here the notice, it. i- true, referred to the bill of -ale, but was affixed to the premises for not mi,ro than half an hour. The trui lest in all these cases seems to he nhetheranylhing has been done which will make the fact that possession has been taken notorious and unambiguous. Although the notice might Perhaps b« enough in substance to satisfy the requirement of the Statute, the short time that it remained uttixed to tho promises shows that it cannot be relied upon aH giving notoriety to the seizure. I am therefore of opinion that as against tho ollicial assignee these goods still remained in tho apparent possession of Robertson on the !)th February, and that Cohon's bill of sale was void, for want of registration. It seems clear, therefore, that Cohen was not entitled to receive the process of tho sale from the defendants. The plaintiffs position, as the holder of tho registered bill of sale, is altogether different, His security was protected notwithstanding the bankruptcy, and therefore tho sale of the de fendants, as against tho p'a;ntitr, was a wrongful ono, and I think therefore ho ig entitled to re-over. The provision of the Chuttels Securities' Act, ISSO, which makes an unregistered bill of sale as against tlie Assignee void to all intents and purposes, seems to apply to a case of this kind ; otherwise, it might he contended that the subsequent bankruptcy oucrht not to affect tho relation between Cohon and the plaintiff, and that their respective interests in the goods should be determined as if no bankruptcy had supervened. However that may be, I think it is clear as between tho plaintiff and tho defendants Cohen's bill of sale must he taken to havo been altogether defeated.— Judgment wss, thcruforo, given for plaintiff with costs.