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cedence over a fi. fa., as to goods seized by the sheriff under the fi. fa., the extent being tested after the seizure of the goods and delivered to the sheriff while they remained in his hands unsold. The judgments of the learned judges to whom the question was referred were very lengthy, and through those of all the judges who were in the majority, and that of Littledale, J., who was in the minority, runs the principle laid down by Taunton, J., as above.

In Collingridge v. Paxton, 11 C. B. 686, Jervis, C.J., said, "As money, the produce of goods seized, remaining in the hands of the sheriff, does not become the property of the execution creditor, so neither does money seized by the sheriff." It has several times been held that moneys realized by a sheriff under an execution cannot be seized under execution against the goods of the execution creditor. Sharpe v. Leitch, 2 U. C. L. J. N. S. 132; Masters v. Stanley, 8 Dowl. 169.

In view of these authorities, it appears impossible to hold that a sheriff or a county court bailiff is a trustee of moneys levied under execution. The creditor may bring an action upon the debt "transferred" to the sheriff or bailiff by the levying of the money, or he may take summary proceedings to compel a return and to have the moneys paid over if their receipt by the sheriff or bailiff is admitted by the return, but I fail to see that he could be called to account as a trustee or agent in a court of equity. The opinions of those eminent judges to whom I have referred were certainly against any such position, no authority for the position has been cited, and I know of none.

Nor does it appear to me that the mode of deposit of the moneys under the circumstances of this case can be said to have created a trust in favor of the parties under whose executions the moneys were realized.

If the moneys had been really trust moneys, the method of deposit and the account given respecting the moneys would enable us to trace them, and give the cestuis que trustent a right to follow them. The case would then be similar to Ex parte Kingston, re Gross, L. R. 6 Ch. 632, so strongly relied on by counsel for the bank. In that case, however, the moneys were clearly public moneys in the hands of the treasurer before deposit in the bank at all, and it is upon this ground that the decision

was based, Sir G. Mellish, L. J., expressly referring to the statute which provided that all sums of money paid to the treasurer were to be "deemed and taken to be public stock," and Sir W. M. James impliedly doing so by calling the fund from the outset "public stock."

Although Robinson acted as an officer of the court in collecting the moneys, yet moneys in his hands were not in court, as the fact that he could be at once sued therefor shows; the court is not a corporation, and I can see no method by which the court could have made the bank account directly to it for the funds, Robinson did not open the account by direction of the court or of any of its officers; he did so of his own accord, and the bank was directly responsible to him for the moneys; if a cheque were dishonored while there were sufficient funds to meet it at the credit of the account, he could at once have maintained an action therefor, and no one else was in a position to do so. Here the case differs from Wheatley v. Purr, 1 Keen 551, in which the fund was placed to the joint account of the depositor and the plaintiffs, and a promissory note given to the depositor, by its terms expressly payable to her in trust for the plaintiffs.

It is claimed that the bank should have had notice that it was intended by the plaintiffs that the moneys at the credit of the County Court Trust Account should be attached by the order. It must, however, be taken to have known to whom it was responsible for the moneys, and this was undoubtedly Robinson. No other person had made any claim upon the bank for any of the moneys. Prima facie, then, these moneys were attached, and the bank could have relieved itself from any liability to an action by Robinson by paying the amount into court.

In my opinion, the order dismissing the appeal should be affirmed with costs.

ONTARIO BANK v. SUTHERLAND.

(IN APPEAL.)

Striking out defence for non-attendance for examination.

Circumstances under which an order will be made to strike out a defence for non-attendance for examination.

An order striking out a defence should not also contain leave to sign final judgment.

J. W. E. Darby, for plaintiff.

S. C. Biggs, Q. C., for defendant.

[27th March 1886.]

WALLBRIDGE, C.J.-This is an application to revise the order of a judge made in chambers on the 20th November, 1885, striking out the defence in this suit and giving leave to sign final judgment, for non-attendance to be examined under an order made on the 12th June, 1885. On the 26th of same month an order was made (the plaintiff then having applied to strike out the defence for non attendance) extending the time for the defendant to attend.

The appointments to attend were made for the 15th June, for 5th October, and for the 2nd November. The examiner certifies that the plaintiff's solicitor attended on 2nd November, but that the defendant did not attend, nor did any one appear on his behalf. On the 10th November the plaintiff again applied to strike out the defendant's pleas for his non-attendance on the 2nd November, and the presiding judge then gave the defendant a further opportunity of attending, up to the 20th November. The defendant did not avail himself of that indulgence, and the order was made on the 20th for striking out the defence. By statute 48 Vic. c. 17, s. 134, sub-sec. 3 it is enacted, "If the person to be examined being a party to the suit, or an officer, manager or representative, liable to examination, of a corporation which is a party to the suit fails without sufficient excuse to comply with such order for examination or notice to produce, an application may be made to a judge in chambers to dismiss the

action of such party, if a plaintiff, for want of prosecution, and if a defendant, to strike out the defence, and the judge may make an order accordingly."

Did the defendant in this suit fail without sufficient excuse to comply with the order? The judge has so found it, and upon reviewing the facts one can hardly see how he could have come to any other conclusion. If the statute is not to be a dead letter I can hardly imagine a case in which it could be applied if not to this one. After the failure to attend on the appointments above enumerated, the defendant was still allowed from the 10th to the 20th November, and then was heard by counsel before the order was made striking out the defence. The case of Haigh v. Haigh, reported in The Weekly Notes, November 21st, 1885, p. 197, is a very similar case, only in that case the order was to strike out the statement of the defence for non-production of documents, and the court refused to set aside the judgment; and on an application to set the judgment aside, Mr. Justice Pearson expressed the great reluctance which he and every other judge must always feel at dismissing an action on grounds entirely apart from the merits.

In this case the application is not made supported by an affidavit of merits, but simply on the ground that the judge was not justified upon the grounds set forth in making the order appealed against.

It is most unsatisfactory at any time to dispose of a case finally, otherwise than on its merits, but if the statute is not to be a dead letter, and the right of a plaintiff to examine the defendant as the statute has enacted is not to be treated as if it were such, I do not see how the judge could have done otherwise than he has done. I think this appeal should be dismissed with costs.

DUBUC, J., concurred in the judgment of the Chief Justice, except that he held that the order should not have contained leave to sign final judgment.

TAYLOR, J.-The defendant appeals from an order made by me on the 20th of November, 1885, striking out his defence because he had failed to appear for examination, as required by an order made on the 12th of June, 1885, under section 134 of The Administration of Justice Act, 1885, and giving the plaintiffs leave to sign final judgment for the amount indorsed on the writ of summons.

There seems no doubt that the order went too far, and that it should be amended by striking out all the latter part of it, all except that part which orders the defence to be struck out. It may, no doubt, be argued, that all the concluding part, which gives the plaintiffs certain costs and leave to sign final judgment, follows consequentially from the defence being struck out, but the answer to that is, that the statute is silent on that subject. Except under that clause of the statute, the court would have no power to order the defendant to attend for examination, and if under the statute, an order for examination has been made and disobeyed, the court, apart, perhaps, from the power of punishing for contempt of its order by attachment, can go on to impose only the penalty specified by the statute, and that is in the case of a defendant, "to strike out the defence."

The defendant, however, raises a wider question. The statute says that this penalty shall be inflicted only where a party "fails without sufficient excuse to comply with such order ", and it is urged that in the present case there was not evidence to show that the defendant had failed without sufficient excuse to comply with the order.

In this case there had, in June, 1885, been an application made for a similar order, which was refused, though the costs of the application were made costs in the cause to the plaintiffs in any event. It is now contended, that on the application made in November, none of the evidence then laid before the court referring to the previous failure to attend should have been admitted, but should have all been ruled out. I do not know that I am prepared to go quite that length, but I do feel on a further consideration of the case that more importance was attached to what occurred then than should have been. That had been disposed of by the Court, and the question proper for consideration in November was, had the defendant failed without sufficient excuse to attend on the appointment for examination returnable on the 2nd of November.

After the proceedings for the examination of the defendant in June, which were disposed of by the order of 26th June, the plaintiffs took out an appointment for examination on the 29th of July, which was, however, never served. Then on the 1st of October a new appointment was taken out and served, and this was several times adjourned by consent. On the 12th of October

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