The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1891-10-06

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must take sctual possession Of SSld stock
OF goods before the Intervention Of third
parties or the commencement o. proceed
ings in bankruptcy, 70 give him leSa
ritle IN the same.
OPINION OF THE COURT PkR BICKERToN, !
This is an agreed submission.
The following IS the statement OF
facts submitted:
w. b Daniels, Of Waikiki, on
the LIST day Of May, 1889, then com
mencing business as 8 retail trader,
made mortgage 70 said NJ Phillips
& Co., 9 copy of which Is hereto an
nexed and made part hereof, which
was duly plsced on record.
said mortgage wSs given to SCI
cure the account Of said NJ Phillips
& Co. for goods sold and goods
agreed to be sold 70 said Daniels.
"Said Daniels since giving said
mortgage has carried on said busi-
ness and has purchased goods from
other dealers, and has msde pay
ments on account TO them and Is now
indebted to them for such goods.
''On March 18th, 1891, Phillips &
Co. made demand upon said Daniels
for payment Of the balance Of his
account due them for said goods and
other goods sold to him from time to
time. then amounting to S4513.36.
upon said Daniels refusing to
pay the same, Phillips & Co. de-
manded of him, st said Waikiki,
possession of sll Of his stock IN trade,
goods. wares and merchandise, chat
tells and fixtures then IN his said
store, claiming to be entitled to the
same under said mortgage. De
livery of possession was refused.
'-Ou March 31st, 1891, petition
was filed in the Supreme Court to
have said Daniels declared bankrupt,
and on April 18th, 1891, 8 decree of
bankruptcy was entered against him.
Fl. ". McChesney wss chosen
assignee in bankruptcy Of said
Daniels. and is in possession OF said
stock of goods of said Daniels"
The questions Of law are as fol-
lows:
L. Are N. Phillips s Co. entitled
TO the possession Of such portion re-
manning. if sny, Of said stock which
was in said Daniels possession at
the date of said mortgage:
- Are NJ. Phillips & Co. entitled
to the possession of all of the goods.
chattels and fixtures IN said stock
acquired By said Daniels after the
date of said mortgage and in his
possession at the date of their de-
aandiD
The 1irst question of law must be
answered in the affirmative. 1t has
always been held by this Court that
chsttel mortgages are entitled to
the possession of such portion re
naming Of the stock that Was in
possession of the mortgsgor at the
date of the mortgage. See
Hardy vs.. Ruggles ct al, Hsw.,
400;
Spencer ,,ys. Barlow & Lenehsn, 8
Hsw, Tie.
This was also held to be the law in
the recent case of VIC Psrke, as
signee. VS.. L. J. Leyey, and in other
cases not reported.
The second question Of law raises
a new point. There Is q clause ID
this mortgage which reads: aAll my
stock in trade, goods, wares, mer-
chandise, chsttels and fixtures in my
store in Waikiki aforesaid, and all |
after acquired goods, wares, mer-
ehsndise and chsttels that shall be |
purchased by me out Of the proceeds |
of sales Of the present stock"
In the first place it does not APP
pear by anything before Us that any |
of the goods in the possession of |
Daniels the mortgsgor at the date
Of the bankruptcy were bought |
with the proceeds of goods IN his /
stock at the date of the mortgage. |
In the case Of Spencer vs.. Barlow
cited above, it was shown that set
Of furniture that was covered by the 1
mortgage was exchanged for a
buggy, the Court held that the |
MORTGAGE was entitled to the |
buggy, for it was substituted for the
set Of furniture, and that would be
no different from selling the furni-
ture and with the proceeds purchas-
ing the buggy. Nothing of the sort
appears here, how could it in q gen.
aral retail store like this one; goods
we're being sold and new goods
bought from a number of dealers,
md became commingled in the gen.
sral stock Of the store. 1t would be
impossible TO say that any psrticu- |
ar lot of goods were bought with the |
particular proceeds of the original
FOODS covered by the mortgage. But +
he plaintiff does not seem to rely !
much on this, but claims that he is
ntitSed to the possession Of the after
squirrel stock Of goods, the payment
4 the debt having been refused after
lue demand, and demand having
cen made of Daniels at Waikiki foF
he possession OF all of his stock in
rade. goods, wares, etc, etc, then in
is said store, the mortgage claim
no In BE- entitled To the same under