ular, but in my opinion, whatever may be the merits in that discussion, this is a collateral proceeding, and as long as the decree stands unreversed in the original suit it cannot be successfully attacked in this suit. The reason for this conclusion I think is well expressed in the case of Mc Goon v. Scales, 76 Sup. C. U. S. at p. 30, that if the court in which the proceeding took place had jurisdiction to render the judgment which it did, no error in its proceedings which did not affectthe jurisdiction would render the proceeding void, nor can such error be considered when the judgment is brought collaterally into question.

The next question that arises is, does this judgment or decree obtain a priority in the administration of the assets of the intestate. In this Province the administration of the estate of an intestate in this respect is governed by the Imperial statute 33 & 34 Vic. c. 28, s. 5, which is in these words (passed 2nd August, 1869, to take effect 1st January, 1870): “In the administration of the estate of every person who shall die on or after the 1st day of January, 1870, no debt or liability of such person shall be entitled to any priority or preference by reason merely that the same is secured by, or arises under, a bond, deed or other instrument under seal, or is otherwise made or constituted a specialty debt, but all the creditors of such person, as well specialty as simple contract, shall be treated as standing in equal degree and be paid accordingly out of the assets of such deceased person, whether such assets are legal or equitable, any statute or other law to the contrary notwithstanding; provided always that this Act shall not prejudice or affect any lien, charge, or other security which any creditor may hold or be entitled to for the payment of his debt." The decree in this case is not proved to have been filed or docketed as is required by s. 78, c. 37, Con. Stat. Man., which it is there said shall be necessary to constitute it a judgment and to which all the force and effect of judgments at law shall be given.

This statute, 32 & 33 Vic. c. 28, is different from the Ontario statute relating to the same subject, 29 Vic. c. 28, for in the Ontario statute judgments are expressly mentioned with specialties and simple contract debts. In the case of Astley v. Powis, 1 Ves. Sen. 496, cited in vol. ii. Williams on Executors, p. 1009, it was held that judgments at law and decrees in equity stand upon the same footing in the course of administering assets,

and although a decree in equity could not be pleaded at law (Searle v. Lane, 2 Vern. 88) relief could be given in equity and injunction granted. Harding v. Edge, 1 Vern. 143. The distinction between simple contract debts and debts due by specialty having been abolished leaves yet untouched both judgments and decrees. Re Williams Estate, L. R. 15 Eq. 270.

Re Marsden, L. R. 26 Ch. Div. 783 holds that one acting in the capacity of executor is in fact a trustee for the creditors, and must administer the estate in that capacity, and is personally liable in equity for all breaches of the ordinary trusts which may arise. It is proved that the administrator had notice of this judgment against the intestate about 13th February, 1884, took out letters of administration 12th April, 1884, and made the assignment to his co-defendant Morice 28th April, 1884. The assignment transfers the policies, and annexed thereto is a schedule of the creditors amongst whom the money was to be divided, omitting, however, this plaintiff, and this assignment is so drawn that creditors are not expected to sign it. It is proved, however, that notice of the assignment was given to several of the creditors. I think the law is clear, that before the passing of the Imperial Act, 32 & 33 Vic., before referred to, decrees in equity had a priority in administration over simple contract debts, which latter, under that statute, rank with debts due by specialty (omitting judgments). Did the statute Con. Stat. Man. c. 37, s. 78, which directs that the person to receive payment under a decree shall be plaintiff, and entitled to fi. fa. and vend. ex. against the property of the person whose duty it is to pay the money, abolish such priority? and is it necessary to file and docket a decree to constitute it a judgment in the contemplation of the statute, or in other words, does the Manitoba statute deprive decrees in equity of the position in respect to payment which they before then had by statute 32 & 33 Vic. c. 28, s. 5? Jennings v. Rigby, 33 Beav. 198. This statute professes to give decrees in equity a new position, and not to take away from them the position in the administration of estates which such decrees had before then. In my opinion, decrees retain their right to priority in administration, and are not debarred from such right by the words of section 78, c. 37, which such decree, without being constituted a judgment, had before the passing of that Act. This statute was intended to confer additional rights,

and not to deprive parties of rights already possessed. It appears in evidence that the administrator has not yet parted with the money received by him under the life policies. The question of the effect of the assignment to Morice yet remains to be considered. As to this question, using the word fraud in its ordinary accepted sense, I wholly acquit this administrator of that, and think he has acted in that way which he thought most for the interest of the estate and in the strictest sense honorably. But fraud in law is not limited to the definition of honest dealing. It must be legal as well as honest. The administrator knew of this judgment before he administered, and it was present to his mind when he made the assignment to defendant Morice of 28th April, 1884, which is now attacked. It was clearly made with the object of compelling the plaintiffs to rely upon the security they held by this mortgage, intestate to plaintiffs. If the view I take be correct, that the administrator was trustee for the creditors, and that judgment creditors have rank in the administration before specialty and simple contract debts by 32 & 33 Vic. c. 28, then the assignment would be void, evincing a total disregard of what the law, in my opinion, holds be the duty of the administrator. Positive proof of fraud is not required, it is enough if facts be established which establish a reasonable ground for drawing the inference of fraud, and this inference, unless rebutted, will be adopted as establishing fraud. Humphrey v. Olver, 28 L. J. Ch. 406.

A decree will be made for administering the estate under the direction of the Court. Plaintiff's judgment and decree declared to have priority to specialty and simple contract debts of the intestate. The assignment to defendant Morice declared void, and costs to all parties out of the estate.

ABELL v. ALLAN.

(IN EQUITY.)

Garnishing order.-Right of judgment creditor to enforce judg ment recovered by debtor against garnishee.

B. & P. had a judgment against A.; McA. obtained a judgment against B. & P. and garnished A.

Held, That McA. had no right to enforce the judgment of B. & P. against A., nor to rank under that judgment as against the lands of A. in a contest for priority among his judgment creditors.

H. M. Howell, Q. C., and J. S. Hough for plaintiff.

J. J. Curran for Leach.

P. McCarthy for James McAllen.

[2nd April, 1886.]

KILLAM, J.—This is an appeal from the master's report in a suit for the sale of lands under a registered judgment. The appellant is James McAllen, a defendant, made a party in the master's office as being an incumbrancer. The decree directed an inquiry by the master whether any person or persons other than the plaintiff had any lien, charge or incumbrance upon the lands in question subsequent to the claim of the plaintiff, and that such person or persons (if any) should be made parties in the master's office, and served with notice thereof, and that the master should take an account of what was due to the plaintiff and such other incumbrancer or incumbrancers (if any) for principal money and interest, and to tax to them their costs, and to settle their priorities.

The appellant claims a charge upon the lands in question in priority to the plaintiff and other parties, whereas the master has found the appellant's claim to be subsequent to the charges of the plaintiff and of Neil Leitch.

The plaintiff's judgment was recovered on the 24th day of May, 1882, and a certificate thereof was registered on the 12th day of January, 1883. On the 20th July, 1880, the Brown & Patterson Manufacturing Co. recovered a judgment at law

against the defendant Allan for $1,074.60, and on the 27th July, 1880, executions against the goods and lands of Allan were issued upon this judgment and placed in the hands of the sheriff of Manitoba. Subsequently, by arrangement between the attor neys for the Brown & Patterson Co. and Allan, the claim of that Company against Allan was brought to trial, the judgment and executions being allowed to remain in force to secure any sum found due, and upon the trial the Company recovered a verdict for $1,027.90, and costs of the suit and proceedings were taxed at $203.67. On the 2nd of May, 1882, the Brown & Patterson Co. registered a certificate of their original judg ment for $1,074.60, and filed a bill against Allan to have a lien declared in their favor for that amount upon the lands now in question. On the 26th of June, 1882, there was realized under the fi. fa. goods $279. Allan then being desirous of effecting a loan upon the security of the lands in question, an arrangement was made by which the executions of the Brown & Patterson Co. were withdrawn from the sheriff's hands until the loan could be effected and the security given, and they were on the 30th September, 1882, paid out of the proceeds of the loan, $934-35. This made the sum of $1,213.35 realized upon the claim, and the attorneys for the Brown & Patterson Co. claimed that there was then due besides the amount of the verdict, $1,027.90, the taxed costs $203.67, and sums for interest and costs of the equity suit, amounting altogether with the amount of the verdict, to $1,403.57, leaving $190.22 still due to the company.

On the 19th of September, 1882, James McAllen the present appellant, recovered a judgment at law against the Brown & Patterson Manufacturing Co. for $4,195.99, and he having also obtained a garnishee attaching order attaching debts due from the Brown & Patterson Co. to Allan, on the 11th April, 1883, an order was made directing the Brown & Patterson Co. to pay over to McAllen $1,074.99 as being then due by Allan to the company on a judgment recovered by the company against Allan; and on the 16th day of April, 1883, writs of fi. fa. against the goods and lands of Allan were issued upon this order and placed in the hands of the sheriff.

Neil Leitch was the only party, besides the plaintiff and McAllen, who appeared in the master's office, though certain