an administration action in the Chancery Division following circumstances. The action was brought on August 11, 1900, for t tration of the estate of Jane Pollard, who died or Ex parte. 1899. Her executors and trustees were the bankru brothers, B. Pollard and S. R. Pollard. B. Pollard and S. R. Pollard were the plaintiffs, Pollard the defendant. At the trial of the actio ruary 20, 1901, an inquiry was (inter alia) directed w defendant was indebted in any, and if so what, s testatrix at the time of her death. By his certificate, dated December 17, 1901, t certified that the defendant was indebted to the testa time of her death in the sum of 1361. 3s., and that thi still due to her estate. On March 11, 1902, on the hearing of the action consideration, it was ordered that the defendant shou seven days after service of the order upon him, pay t 1367. 3s. into court to the credit of the action. was served on the defendant on April 25, 1902, but he obey it. On May 20, 1902, on the application of the an order was made for the issue of a writ of sequ against the defendant, and on the same day the issued. It was in the common form, authorizing and c ing the persons named in it as sequestrators to enter the real estate of the defendant, and to collect not rents and profits thereof, but also all his goods, and personal estate, "and detain and keep the san sequestration in your hands" until the defendant shou in court to the credit of the action the sum of 1361. 3s his contempt, and our said Court make other order contrary." On the same day a copy of the writ was s two of the sequestrators upon the manager of the Garden branch of the London and County Banking Co with which the defendant kept an account, and the trators demanded payment to themselves of the balan standing to the credit of the defendant in the books bank. The manager said that he must consult his solicitor, and that as soon as he had obtained his advice he would communicate with the sequestrators, and that in the meantime he would not allow the defendant to reduce his balance or pay away any money on his account. At that time a balance of 2041. 7s. 5d. was in fact standing to the defendant's credit. On May 22, 1902, two of the sequestrators again attended upon the bank manager, and served him with a formal demand in writing for payment over to them of the balance standing to the defendant's credit. The manager then consulted his solicitor, who said that the bank could not pay the money over without an order of the Court. On the same day a summons in the action was issued by the plaintiffs against the bank, asking for an order for the payment of the balance into court. By the evidence upon this summons it appeared that, after the service of the copy of the writ of sequestration on the bank manager, he had allowed the defendant's balance to be reduced, and that there then stood to his credit only the sum of 1371. 7s. 5d. On the hearing of the summons in Court on July 5, 1902, an order was made by Joyce J. (1) that the bank should within four days after service make the payment into court directed by the lodgment schedule thereto. And it was referred to the taxing master to tax the costs of the sequestrators of the application. And it was ordered that the funds in court should be dealt with as directed by the payment schedule thereto. The order was expressly made without prejudice to any proceedings which might be taken by the sequestrators against the bank in respect of the sum paid out by them from the amount standing to the credit of the defendant after service of the writ of sequestration on the manager. The lodgment schedule directed the bank to lodge 1371. 7s. 5d. cash in court to the credit of the action, "the sequestrators' account"; and the payment schedule directed that out of the funds to be lodged as aforesaid the costs of the sequestrators to be taxed under the order should be paid. (1) Vide W. N. (1902) 144. C. A. 1903 POLLARD, In re. POLLARD, Ex parte. C. A. 1903 POLLARD, In re. POLLARD, Ex parte. This order was served upon the bank on August 2, 1902, and on August 6, 1902, between 12.30 and 1 P.M., they paid the money into court. At the time when the order of July 5 was made the plaintiffs had no knowledge of any act of bankruptcy committed by the defendant; but in fact, on April 10, 1902, a bankruptcy notice had been served upon him. He failed to comply with the notice, and on July 13, 1902, a bankruptcy petition was presented against him, upon which, on August 6, 1902, between 2.30 and 3 P.M., a receiving order was made. The defendant was afterwards adjudicated a bankrupt and a trustee was appointed. The taxed costs of the sequestrators having been paid, in accordance with the order of July 5, 1902, there remained in court to the credit of the action, "the sequestrators' account," the sum of 981. 9s. 9d. March 2, 9. Hansell, for the trustee. Under s. 10 of the Bankruptcy Act, 1883, this Court can restrain proceedings pending against the bankrupt in other Courts. The title of the trustee relates back to April 18, 1902. The sequestration proceedings were not commenced until May 20, and are not protected under s. 49 of the Act, as they were proceedings in invitum: Courage v. O'Shea (1); Wild v. Southwood (2); nor was the payment into court under the sequestration a completion of the execution within s. 45 of the Act: In re Hastings (3); In re Browne (4); Butler v. Wearing (5); In re Trehearne. (6) Even if payment into court was equivalent to receipt of the money by the sequestrators the execution was not completed before the date of the receiving order, because the money was only paid into court the same day. Muir Mackenzie, for the sequestrators. It may be admitted that s. 49 of the Act does not apply, but the application is misconceived. The Court of Chancery now has this money under its control, and it is for that Court to decide who is entitled to it. Even if the trustee is entitled by relation back, (1) [1895] 1 Ch. 325. (4) (1871) L. R. 12 Eq. 137. In re C. A. 1903 In re. POLLARD, Ex parte. it is to that Court to which he ought to apply. Hastings (1) and In re Browne (2) do not apply. In neither of them had the sequestration proceedings gone so far as in the POLLARD, present case. Next, s. 45 of the Act does not apply; a sequestration is not a process at law like a fi. fa. It is a proceeding to compel obedience in cases of contempt by seizing property: Edwards on Executions, pp. 268-270; Francklyn v. Colhoun (3); and is not an execution or attachment within the meaning of the section. But if it is, the execution was completed, because the bank under the order paid the money into court to the separate account of the sequestrators. Hansell, in reply. WRIGHT J. It seems to me that I cannot get over the decisions in In re Hastings (1) and in In re Browne. (2) It is not necessary for me to repeat what is said in those cases. I will merely add that on the facts of this case there was an execution, and it was not completed before the date of the receiving order. The receiving order was made on August 6, and the money was paid into court on the same day; therefore, the payment was not before the date of the receiving order, because the receiving order takes effect from the beginning of the day. Taking the view I do of the effect of In re Hastings (1) and In re Browne (2), I think I should be doing wrong to send this case to the Chancery Division. Moreover, in this case the trustee has a higher title than the bankrupt, which is an additional reason for keeping the matter in the Court of Bankruptcy, which clearly has jurisdiction to deal with it. I think, therefore, that the trustee is entitled to succeed, and that there must be an order in the terms of the notice of motion. The plaintiffs appealed. H. L. F. Danckwerts, K.C., and Muir Mackenzie, for the plaintiffs. The money was ordered to be placed to a separate account only because the taxed costs of the sequestrators were to be paid out of it. (1) 9 Morr. 234. (2) L. R. 12 Eq. 137. (3) (1819) 3 Swanst. 283, n.; 19 R. R. 204. C. A. 1903 POLLARD, In re. POLLARD, Ex parte. [ROMER L.J. The money was not carried to the general credit of the action. COZENS-HARDY L.J. Is it not really the same thing as if the money were now in the pockets of the sequestrators ?] The sequestrators would hold the money as officers of the Court. It is submitted that the money has been "recovered " in the action, and that the plaintiffs' solicitors would have a statutory lien upon it for their costs. The money was in court to the credit of the action, though it was placed to a special account; but that is immaterial as regards persons who are not parties to the action. The bankrupt could not have dealt with the money. An order might have been made to carry over the balance after payment of the costs to the general credit of the action. [ROMER L.J. But no such order was made.] The trustee in a bankruptcy has no higher right than the bankrupt himself, unless some special right is given to him by statute or by the general law. The bankrupt could not have got this money out of court. [ROMER L.J. If he had paid into court the 1367. which he had been ordered to pay, he would have been entitled to the money which the bank had paid in.] It is submitted that as soon as the order was served upon the bank the plaintiffs became secured creditors of the bankrupt within the meaning of s. 9, sub-s. 2, of the Bankruptcy Act, 1883; after that the fund could not be dealt with except in accordance with the order. In re Hastings (1), upon which the learned judge relied, really supports the argument for the plaintiffs. In that case money had not been paid into court as in the present case. Here the balance in the bank was seized as soon as the order was served on the bank on August 2, and that was before the making of the receiving order. The plaintiffs were then in the position analogous to that of an execution creditor who has completed his execution by seizure and sale, and they are protected by s. 45. The money in court was subject to the order of the Court. Hansell, for the trustee in the bankruptcy, was not called upon. (1) 9 Morr. 234. |