AN INTERESTING JUDGMENT.

Press, Volume LXV, Issue 13612, 22 December 1909, Page 3

AN INTERESTING JUDGMENT.

In view of the importance to stock agents and the public generally of Mr Justice Sim's judgment in the caso Cockburn v. Pyne and Company, recently heard at the Supreme Court, we give below the full test of the judgment : — The document signed on the 28th of Apri , ., 1909, by Samuel Huinm and his wiie vras a valid, equitable assignment to the plaintiff of the proceeds to arise from the sale of the live and dead, stock on the farm at Whitecliffs. It was also an absolute assignment of a chose in action within the meaning of Section. 4.) of '-The Property Law Act, 1908,' ; and express notice in writing of it was given to the defendants on the 22nd of June, 1909, before they had received any of the proceeds of the sale of the stock. It vas contended by the defendants that this document Vas not intended by the parties to operate as an assignment, and that it ought not to be construed i*.i an assignment. The case of in re Snewaid (1893) 3 Ch. 5(32 was cited in support of this argument. There is an important distinction between that and the present case. In that case the persors who had signed the alleged assignment asked the Court to declare Jiat it was not intended to operate as an assignment. In. the present ■■ase it has not been suggested by the Humms that the document does not express their real intention, nor have they taken any steps to impugn it. In these circumstances it is not competent for a stranger to the assignment t.i successfully raise any point as to whether a. Court of Equity would or would not enforce it. — Walker v. Bradford Old Bank. 12 Q. 8.1). 511, 515. It ■vras also contended by the defendants that, it was one of the terms of the arrangement made between tho plaintiff and tho Humms on the 28th of April that the amount owing to the defendants should be paid out of the pi weeds of the sale ot the stock, and that they are entitled, therefore, to rt-tain their debt cut of these proceeds. It is clear from th-o conduct of xlw parties that at one time they intended that the debt should be paid in this way. Graham and Austin, however, both deny that this was any part of the

arrangement between the plaintiff and tao huinins. They say that the plaintiti deemed of her own motion to paythe debt without being under any contractual obligation to <\a so. This seems hardly credible. It is much more prob- j able that Hisnim desired at that time ! to act honestly towards the defendants, and to see their debt pn:d out of j tne proceeds of the stock, a large part ot which must have been bought with then moneys, and that ho nude a stipu ation a,vor<i; lit riy. And effect would probably have been given to this stimulation if the doht owing to the dt■fondants had not been so nuich larger than it was supposed to be. Hiimm told Graham that it was about £300. It was m fact £671 Ss, and was incirased by further payments to the amount of £l'j.-> i«j s made by the defendants on account of llmnni aftor the- had received the notice of the 22nd June. When these figures became known to the plaintiffs advisers, and it was clear that Humni's desire to act hcnestly towards his creditors was about to prove so costly, it was decided, apparently, not to give effect to the stipulation in favour of the defendants, and to insist strictly on the rights conferred by the document of tie 28th of April/ That. 1 think, is probably what happened, but this conclusion can only he reached by discrediting part of the evidence of Graham and Austin and the Huinins. It j is, however, not really neceesary to come to a definite conclusion on the subject, because, assuming in favour of the defendants that such a stipulation was part of the arrangement between plr.intiff and the Humms. it does not afford the defendants any answer to the present action. They were not parties to the arrangement, and cannot claim any benefit under it. If the Humans elect now to waive the benefit of any such stipulation they are at liberty to do so without the consent of the defendants. The position, therefore, is that tho plaintiff is entitled to the proceeds of the sale by virtue of the assignment, and any right of set off which the defendants had as against Huram cannot apply to any moneys that came to their hands after the 22nd of Juno, the day on which they received notice of the assignment.—Kaltcnbnch v. Lewis, 10 App. Cas. 617. The section (21) of '•The Auctioneers Act, IfX)S" which was referred to at the hcarinsr. does not alter the rights of the plaintiff in the matter. The plaintiff is entitled to judgment for the amount claimed, viz.. £797 7s 10d less the proceeds of tho sale of the furniture which wore admitted not to be covered by the assignment. The exact amount for which judgment is to be entered can be settled in Chambers, if neecseary. The piaintiff is entitled to costs according to scale with disbursements , and witnesses' expenses to be fixed by the Registrar.