Re MONKMAN & GORDON.

THE MERCHANTS BANK OF CANADA, GARNISHEES.

(IN APPEAL.)

Garnishing order. - Trust funds.-Bailiff.

Moneys collected by a county court 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 a trustee for him of the particular fund.

(Decision of Taylor, J., 2 Man. L. R. 145, affirmed.)

For a statement of the facts, see the former report, 2 Man. L. R. 145.

J. S. Tupper for appellants.

J. S. Ewart, Q. C., and George Patterson for respondents.

[27th March, 1886.] WALLBRIDGE, C.J.-The debt attached must be one due to the defendant.

W. P. Robinson is bailiff of the County Court of Selkirk. It is his duty, when he collects money, to pay it over to the clerk of that court. Con. Stat Man. c. 34, s. 104. Moneys were deposited by him in the hands of the Merchants Bank of Canada, in Winnipeg, in the name of "County Court Trust Account, W. P. Robinson, High Bailiff."

On the 7th March, 1885, the money then in the bank was garnished for a debt due to Monkman & Gordon by W. P. Robinson, this bailiff, the Merchants Bank being the garnishees.

An affidavit was made by Mr. Miller, the manager of the bank at Winnipeg, denying that there was at the time of the service of the attachment (7th March, 1885) any debts, obligations or liabilities owing, or that would be due, to the said William P. Robinson. By consent, Mr. Wickson, assistant manager, was examined, instead of cross-examining Mr. Miller on his affidavit. He proves that at the time of service of the attachment there was money in the bank to the credit of that account, to an amount exceeding that for which the order was

made, directing the bank to bring into court, which sum was $311.75.

Is this money properly attached or garnished for the proper debt of W. P. Robinson?

The Stat. Man. 48 Vic. c. 17, s. 53, enacts that the garnishee may forthwith after service of the attachment pay into court, to the credit of the cause, which if in full shall be to him a full discharge of the demand.

The bank however allege that if they had paid this money into court, in this cause, and refused to honor checks, they might be prosecuted for such refusal; and on the other hand, that there were no funds in their hands, excepting the funds at the credit of this " County Court Trust Account, W. P. Robinson, High Bailiff."

It is to be remarked that it is, and was, the duty of the bailiff to pay such moneys, as he now alleges these are, into the hands of the clerk of the court. By paying moneys into a bank which were the moneys of suitors he was making an application not authorized by statute. He does not give the name of any person for whom the bank might be said to hold these moneys in trust, and they were there subject to his individual check; the bank had not the names of persons for whom these moneys were supposed to be held in trust, and they were subject to the check of Robinson simply by the addition to his name of the words, "High Bailiff." This is manifestly an arrangement by which the high bailiff, if he wished to do so, could easily cover up any amount of funds and place them beyond the reach of his creditors.

It is the debts, obligations and liabilities of a defendant which can be garnished, and Mr. Robinson can only protect himself, and the bank also be protected, if the moneys are not the moneys of Robinson. So far as we are informed they are not the moneys of any one but Robinson, they are subject to his check. When we look at his examination, taken before the master, upon an inquiry as to the ownership of the money, it is most unsatisfactory. Under the advice of counsel, he refused to answer very many questions put to him calculated to establish the ownership of the money in question, which, if the money were not his own, he could readily have answered and relieved himself from suspicion.

Were these monies in truth his, freed from any trust? This is certain, the bank had no notice of any trust. Who were they protecting when they failed to avail themselves of the right which the law gave them, of paying the money into court, to the credit of the cause, as they might have done under section 53. Robinson was the only one who could have prosecuted them for not honoring his checks, and as against him the law afforded the bank absolute protection. The bank, however, have preferred to take the course of not paying the money in, and have doubtless acted advisedly. If we are to form a judgment whether this money be Robinson's or not, the evidence satisfies me that it is his, and there is no other claimant to it. Money in the hands of a bank may be garnished. Re United English and Scottish Life Insurance Co., L. R. 5 Eq. 300, and Miller v. Huddlestone, 22 Ch. D. 233. In this latter case the bank were ordered to verify and pay over. Besides Lockart v. Gray, 2 U. C. L. J. N. S. 163, Bland v. Andrews, 45 U. C. Q. B. 431, and Re W. L. Smart & Miller, 3 Ont. Pr. R. 385, held that the sheriff, bailiff and other officers are debtors to the execution creditor, for whom they receive money, and can be garnished as such debtors. If this be the law, this money, on the shewing of Robinson, was in fact his own, and whilst it was in his hands he could have applied it to any purpose, and his paying it into a bank in such manner that no one but himself could get it, was as much a conversion of it as if he had applied it to his personal use. Besides the very act of paying it into a bank in direct contravention of his duty to pay it to the clerk of the court was a conversion of it, and after such conversion this money became so blended that no trace of its true ownership, or for whom he held it in trust, could be possibly ascertained.

In my opinion, the appeal should be dismissed with costs against the appellant.

KILLAM, J.-A garnishee attaching order having issued at the suit of the plaintiffs, attaching all debts, obligations and liabilities due from the Merchants Bank to William P. Robinson, motion was made before the referee in chambers for an order for payment over by the bank to the plaintiffs of moneys alleged to be those of Robinson in the hands of the bank. The order was made by the referee, and the bank thereupon appealed. The appeal was heard before my brother Taylor, who dismissed it,

affirming the order of the referee. The matter came up by way of re-hearing of this appeal in Michaelmas Term last. Robinson was high bailiff of the County Court of the County of Selkirk. The moneys in question were the balance to credit of an account kept by the bank under the heading," County Court Trust Account." The amount of this balance was $311.75, the sum ordered to be paid over. Robinson was accustomed to deposit to the credit of this account moneys paid to him or levied by him under executions issued from the county court, as also his private moneys and moneys levied by him under landlord's warrants authorizing him to distrain for rent. Moneys were drawn from the account by cheques signed by Robinson alone, in the style in which the account was headed, with the addition of the words, “ W. P. Robinson, High Bailiff". At the time of the service of the attaching orders the aggregate of the amounts which had been collected and levied by Robinson under such executions and not then paid over by him was $255.11. It is claimed by counsel for the bank that $58.51 was the aggregate of amounts then in the hands of Robinson, realized by him for landlords under warrants of distress for rent, but I cannot find this proved in the depositions. A deposit of $58.51 was made about the time of the making of the attaching order, but no definite account is given of the manner in which this was made up. Robinson used moneys drawn from this account as it suited him; sometimes for his private purposes, sometimes for payment over of moneys realized by him under executions. He kept no other bank account.

The contention of the bank is that the sum is a trust fund, not payable to Robinson on his own account, but one in respect of which he was a trustee for the respective suitors under whose executions he received the moneys, or for the court, and that, even if he were not such a trustee by virtue of the circumstances under which he received the moneys, he made himself so by depositing the moneys as he did.

By section 104 of the County Courts Act, Con. Stat. Man. c. 34, it is the duty of a bailiff, on levying moneys under an execution, to pay over the moneys to the clerk of the court from which the writ issued; and by section 210 of the same Act, he is "to pay over to the proper court in that behalf all moneys levied or received in respect of any matter or thing in any county court to which any other person is entitled."

M. L. R. VOL. III.

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The position of the bailiff with reference to his court, and the suitors who have caused its execution to be placed in his hands, is similar to that of a sheriff under the practice in England towards a superior court and the suitors who have placed its writs of execution in his hands. These sections of the statute merely serve to point out the clerk of the court as the proper officer to whom returns are to be made. I can see no distinction between the bailiff of a county court and a sheriff in reference to the matters in question.

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It does not appear to me that a sheriff who has levied moneys under an execution is a trustee of those moneys for the execution creditor. "In the language of the older books, when the money is levied by the sheriff so as the action ceases against the defendant, the same is by law transferred to the sheriff having both the judgment to make it a debt and the levy to make him answerable. * * By sale or payment of the money the original debt is extinguished and the debt is transferred to the sheriff." (Atkinson on Sheriffs, pp. 323-4.) In Morland v. Pellatt, 8 B. & C. 725, Bayley, J., said, "After seizure and before sale the sheriff has a special property in the goods, but the debtor has the general property; up to that time, therefore, the debt is not extinguished, and the judgment creditor has a security for his debt. But after sale, or payment of the money, the sheriff becomes the debtor and the original debt is extinguished;" and Parke, J., in the same case, said, "At all events, on the 2nd day of May" (the day the money had been realized on the execution) "the sheriff was substituted for them" (the judgment debtors)" as the debtor." In Giles v. Grover, 2 M. & Sc. 197, Taunton, J. (p. 241), referring to the remarks of Bayley, J., just cited, said, "This special property is in him not as trustee for the judgment creditor but for the purpose of his own protection. * * The sheriff seizes, not as the agent or servant of the party, but as a minister of justice and an officer of the court, and therefore his possession is not the possession of the creditor but the custody of the law." In the same case, Littledale, J., while differing with Taunton, J., in the conclusion at which he arrived, in the particular case, expressed similar views as to the execution creditor acquiring any property in the goods seized. This was an appeal to the House of Lords, in which the question was, whether an extent issued at the suit of the Crown took pre

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