I do not think that the defendants Molesworth and McKenzie should be allowed costs. They should have raised by demurrer the point on which they succeed. I am well aware that the practice has for some time prevailed in this court of making those in the same position as they parties to foreclosure suits, and as no objection has been made decrees have issued with the personal orders against them. The questions raised have long been considered as doubtful, and they should hardly be settled wholly at the expense of the present plaintiff, whose solicitor has merely followed a general practice into which the Orders of Court and the forms attached have to some extent led mortgagees. These defendants not being properly parties to the suit, should hardly be retained, when they have once raised the objection, for the purpose of settling the plaintiff's title and with a view to allowing them costs. It appears to me that McKenzie's answer admits the assignment alleged in the bill; and it is to be observed also, that both he and Molesworth set up a defence, of which they gave no evidence, that of the giving of time to Pugsley. I do not mean to say, in view of the fact that I do not hold Pugsley personally liable to the plaintiff, that this would have availed them as a defence even if it had been proved, but to mention this merely as an element in considering their right to be paid their costs of suit.

Re MONKMAN & GORDON.

THE MERCHANTS BANK OF CANADA, GARNISHEES. Garnishing order. - Trust funds.-Bailiff.

Moneys collected by a bailiff under executions and paid into what was called a trust account in a bank, Held to be attachable by the bailiff's creditors, it appearing that the same account was used for his own private purposes, A bailiff is debtor to an execution creditor, on whose execution he receives money; not in any sense a trustee for him of the particular fund.

S. C. Biggs, Q.C., and J. B. McArthur, Q. C., for Merchants Bank.

J. S. Ewart, Q. C., and G. B. Gordon for solicitors.

[July 13th, 1885.]

TAYLOR, J.--The solicitors having taxed under order of court a bill of costs against their client, W. P. Robinson, obtained in March last an order attaching moneys in the hands of the Merchants Bank alleged to belong to him. On the 9th of May last an order was made for payment over by the bank to the solicitors, of $311.75, being the amount at the date of the attaching order due from the bank to Robinson.

The Merchants Bank now appeal from that order on several grounds, the principal being that the said sum of $311.75 was on the 7th day of March, 1885, a sum to the credit of the "County Court Trust Account, W. P. Robinson, High Bailiff," and belonged to the said court which is in no way a party to this application; and that the said sum of $311.75 standing to the credit of the County Court Trust Account on the 7th day of March, 1885, was a trust fund and not liable to be garnished for the private debt of Wm. P. Robinson.

Upon the argument of the appeal I was much impressed with the appellant's contention, that the account in the bank being a trust account, and the moneys deposited, moneys held in trust by Robinson, they could not be affected by garnishing process at the instance of a creditor of his. That they could not be so affected there can, I think, be no doubt. But the question is, Are the

moneys trust moneys?

VOL. III. M. L. R.

ΤΟ

Robinson is the high bailiff of the County Court of the County of Selkirk, and the contention is, that the money in the bank is the money of suitors collected by him as such bailiff.

As bailiff his duty under the provisions of the County Court Act is, not to hold money which he has levied or received, or to deposit it in a bank, but to pay it over to the clerk of the court. He, however, seems to have deposited moneys received by him as high bailiff in the Merchants Bank to this County Court Trust Account. But he also deposited on this account private moneys, and drew cheques against it for his own private purposes.

It is impossible to hold consistently with the cases of Collingridge v. Paxton, 11 C. B. 682; Masters v. Stanley, 8 Dowl. 169, and Sharpe v. Leitch, 2 C. L. J., N. S. 132, that Robinson is a trustee of these moneys. A sheriff or bailiff does not stand in a fiduciary relation towards suitors for whom he has collected money under process. He is simply debtor to them for the amount, and they have a claim against him as such; they have no lien on, or right to, the particular fund he has received. That being the case, these suitors have no claim upon the particular moneys now in deposit in the bank, and they could not take any proceedings against the bank in respect of them.

The fact that Robinson chose to open the account, styling it as he did, can make no difference. If merely calling an account a trust account will make it one, and prevent the money being seized or attached, creditors could always be set at defiance by an unscrupulous debtor.

Besides, even if Robinson should be held a trustee, and the suitors cestui que trusts, their right to have a lien on the moneys in the bank, and to have a declaration that they are theirs, will depend entirely on whether the funds in the bank are the moneys collected for them or not. To enable the cestui que trusts to follow trust money it must be shown that the trust fund is in existence, and forms part of the fund claimed. Re Hardcastle, 29 W. R. 615. In this case the moneys said to be suitors' moneys, and so trust funds, were in the bank in December last, but since then, the evidence shows, that Robinson has checked out for his own purposes a much larger sum than the total of the moneys then on deposit. He must, therefore, have deposited since that date private moneys to make up the amount now in the bank

The money now there can, therefore, in no sense be said to be

the suitors' money.

Besides, the bank are not trustees of this money. They cannot set up that they hold the money otherwise than as the money of Robinson. Gray v. Johnston, L. R. 3 H. L. at p. 14, is a clear authority for this.

The contention on the part of the bank and Robinson to support the appeal rested entirely upon the assumption that the moneys were trust moneys, and the account a trust account.

As it can in no sense be held to be so, the appeal must be dismissed with costs.

THE NORTH AMERICAN LIFE ASSURANCE CO. v. SUTHERLAND.

Staying foreign action.-Injunction.-Costs.

The Court has power to stay an action brought in a foreign court, where the party bringing it is within the jurisdiction. But no order will be made unless a clear case of oppression be made out.

The plaintiff filed a bill against the defendant as administratrix of S. to set aside a policy of life insurance. After the commencement of the suit the defendant sued the plaintiffs in the Province of Ontario upon the policy. The insured had resided in Winnipeg, and the plaintiff and the witnesses were now there. The policy was payable in Ontario and the head office of the company was there. The plaintiffs were willing to submit to such terms as the court should think proper.

A motion for injunction to restrain the Ontario action was refused with

costs.

W. E. Perdue and E. H. Morphy for plaintiffs.

J. S. Ewart, Q. C., and C. P. Wilson for defendants.

[24th September, 1885.]

TAYLOR, J.-This is a suit brought by the plaintiffs against the administratrix of the late James Sutherland, to have a policy of

insurance issued by the plaintiffs upon his life, delivered up to be cancelled, on the ground that the policy was not a completed transaction, that the insured had never submitted to the required medical examination, and had in his application for insurance made untrue representations as to his state of health.

The bill was filed on the 4th of August last, and was a few days after served upon the defendant, who resides in the City of Winnipeg. On the 25th of August, after being served with the bill, the defendant began an action against the present plaintiffs in the High Court of Justice for Ontario, to recover the amount payable under the policy. The plaintiffs now move for an injunction to restrain the prosecution of the action in Ontario.

The insured resided in Winnipeg and the defendant resides here. The contract of insurance it is claimed was made here, and the medical attendant of the insured and other witnesses for the plaintiffs reside here. The defendant, on the other hand, contends that the contract, which was made by correspondence, was really made in Ontario, the policy is by its terms payable there, and the head office of the company is in Ontario.

There is no doubt that this court on its equity side is a competent tribunal to try the questions in issue between the parties, and in it the plaintiffs could get, as was pointed out by the late Chancellor Spragge, in The National Life Assurance Co. v. Egan 20 Gr. 469, a fuller measure of relief than they could have even in a successful defence to an action brought against them by the defendant as plaintiff, in an action on the common law side of this court.

That this court has jurisdiction to stay an action brought in a foreign court, where the party bringing it is within the jurisdiction of this court, there can be no doubt. Mr. Kerr, in his work on Injunctions, page 514, says "the court has clear and undoubted jurisdiction, on a proper case being made out, to restrain persons within its jurisdiction from prosecuting suits in the courts of foreign countries."

In Bunbury v. Bunbury, 3 Jur. 644, in a suit to administer the trusts of a will, an injunction was granted by Lord Cottenham to restrain the defendants from proceeding in the court in Demerara to recover real estate subjected by the testator to the trusts of the will, although the rights claimed in the foreign court