THE COURTS.

New Zealand Mail, Issue 889, 15 March 1889, Page 22

THE COURTS.

SUPREME COURT. $ IN BANCO. Wednesday, March 13th, 1889. (Before Prendergast, C.J.,) IN RE ROBERT SOMERVILLE (A BANKRUPT.) This was a special case, stated by consent, to test the validity as against his creditors of a bill-of-sale and mortgage stock from Robert Somerville, a bankrupt, to his wife, comprising all his horses aud stock-in-trade as a livery stable keeper. The docutnent was executed within six months of bankruptcy, and no consideration passed at the time, but it was, as it recited, executed in pursuance of an antecedent agreement to execute it made at the time of and in consideration of a release of a mortgage of freeholds. Mr Travers, for the Official Assignee, contended that the document could not be treated asa mortgage of stock, the policy of the Chattel Securities Act as to mortgages of stock applying only to stock held for profit on its increase by persons engaged in agricultural or pastoral pursuits, and not to horses forming part of the plant of a livery stable ; that the till of sale was void under section 80 of the Bankruptcy Act, 1883 ; that, though void as against the Official Assignee, it was good as between the parties, and the antecedent agreement has become merged in it and could no longer be relied on ; and that if the deed were held good in part as a mortgage ofjjstock, it was bad as to some of the horses which were not branded and as to others not distinctly branded. Mr Gully, forthe creditors, contended that the bill of sale would clearly have been void under section 80 if there had been no antecedent agreement; and that, if it was held that the unregistered antecedent agreement would support it, the policy of section 80 would be defeated ; that if the bill of sale was void and the agreement were relied upon, it could only be relied on as an equitable assignment, and it had not been registered ; that if the agreement were relied upon, the goods were in the order and disposition of the bankrupt, and the title of the trustee must prevail ; Asher v. Blackshaw, L.R. 9 Eq. 510 ; ex parte Homan, L.R. 12 Eq. 598 ; ex parte Harding, L.R. 15 Eq. 223 ; that subsection 2 of section 82 did not apply to a bill of sale void under section 80that the deed could not be treated as in part a mortgage of stock ; that the brands were incomplete; that the bill of sale, being executed on the Bth December, ■ and the act of bankruptcy and commencement of bankruptcy taking place on the 28th January, was void as a mortgage of stock under section 12 of the Chattel Securities Act, 1880 ; i time of adjudication under that section relating back to the act of bankruptcy. Mr Skerrett, for Mrs Somerville, contended that the bill of sale must be considered as having been given on the date of the agreement. Mercer v. Peatson, L.R. 2 Exch. 304 ; Jones v. Hober, L.R. 6 Q.B. 77 ; that the bill of sale being given in pursuance of a contract, and the contract being for a present advance, the bill of sale must be considered as given for a present advance. Ex parte Fisher, L.R., 7 Oh., App. 636 ; Ex parte King, L.R., 2 Ch. D. ; that section 80 of the Bankruptcy Act, 18S3, had nothing to do with registration, and that the agreement itself was the bill of sale within the meaning of that section ; and argued in opposition to the contentions of the Official Assignee and the creditors. Mr Travers having replied, his Honor rei served his decision.

The Court adjourned td id o’clock this morning, when the case of Murphy v. Bragge will be taken.