persons comprising a firm of Patterson Bros. appeared by solicitor and sought to prove themselves to be assignees of the judgment recovered by the Brown & Patterson Co. against Allan, but their claim was not allowed. The claim of Neil Leitch was under a lien created by the issue by him of a writ of execution against the lands of Allan upon a judgment at law, his writ having been placed in the hands of the sheriff on the 30th November, 1882.

The master placed the claim of the plaintiff first, that of Leitch second, and that of McAllen third. He also added to that part of his report referring to McAllen's claim a certificate as follows," And I certify as to this claim that the garnishing order above mentioned will bind whatever moneys may be recovered under the judgment above mentioned obtained by The Brown & Patterson Manufacturing Co. against the said George Gordon Allan, and that the sheriff or other officer or person into whose hands the said moneys may be paid will be bound to pay the same over to the said James McAllen on receiving due notice of the said garnishing order, or of this report, which when received by him will be in reduction of this claim." The master declared all those made parties in his office except Leitch and McAllen foreclosed of all interest in the premises in question, and the plaintiff Leitch and McAllen to be the only incumbrancers thereon.

McAllen claims that his garnishee order gave him a lien or charge upon the judgment of the Brown & Patterson Co. against Allan, and a right to enforce it in its order of priority, and that to the extent of the amount due thereon he should be ranked as having a charge upon the property, in priority to both the plain

tiff and Leitch.

The whole question raised by the appellant appears to me to be settled by the case of Chatterton v. Watney, 16 Ch. Div. 378, 17 Ch. Div. 259, with the decision in which I fully agree. One Margetts made three different mortgages of certain leasehold property held by him. In the first, made to one Watney, a defendant, there was a power of sale, under which the ultimate trusts of the surplus proceeds of sale were to the mortgagor, "his executors, administrators and assigns." Afterwards, in July, 1879, one Rogers recovered a judgment against Budden, the

third mortgagee, and on the 1st August, 1879, Rogers got an order upon this judgment, attaching all debts due or accruing due from Margetts to Budden. On the 13th November, 1879, Budden assigned his mortgage by way of sub-mortgage to Chatterton, the plaintiff in Chatterton v. Watney. On the 11th February, 1880, Watney effected a sale under the power of sale in his mortgage, and the sale was completed and the purchasemoney fully paid on the 11th March, 1880. After paying off the first and second mortgages there was a surplus of £1,109. 75. 2d., much less than the amount of Budden's mortgage, but more than the amount of the sub-mortgage to Chatterton. On the 25th February, 1880, the firm of Ind, Cope & Co. recovered a judgment against Budden, and on the 22nd March, 1880, they obtained a garnishee order attaching all debts due or accruing due from Watney to Budden. Rogers and Ind, Cope & Co. were made parties defendant in the action, and it was held, contrary to the contention of Rogers, that the latter had no claim upon the surplus in the hands of Watney, but that Chatterton's claim must first be satisfied out of this, and the balance applied upon the judgment of Ind, Cope & Co. Such was the decision of Bacon, V.C., which was upheld by the Court of Appeal without dissent.

The ground of disallowing Roger's claim was that his garnishee attaching order had not the effect of transferring the security for the debt, and did not give him any right to the security or any claim upon the lands comprised in it.

Upon the same principle, I think that it must be held that McAllen, by his attaching order, obtained no claim upon the judgment of the Brown & Patterson Co. or the lands upon which the registration of that judgment gave the company a charge.

It does not appear to me that the case of Wallis v. Smith, 46 L. T. N. S., 473 is any more than Chatterton v. Watney, an authority for the present appellant. There the London & South Western Bank, being a judgment creditor of Wallis, and having obtained a garnishee ord er attaching all debts due from the defendant Smith to Wallis, applied to be made co-plaintiff with Wallis in his suit against Smith, or substituted for Wallis as sole plaintiff. It was ordered that the bank should be made coplaintiff with Wallis, the garnishee attaching order being held

to cause a devolution by operation of law of the estate or title of Wallis in the fund in question within the meaning of certain rules under the Judicature Act. The decision was really based upon these rules, and does not appear to me to be applicable in the present instance. To be applicable it must be carried so far as to be in opposition to the decision in Chatterton v. Watney which the learned judge himself could hardly have intended, as it was he who gave the original decision in Chatterton v. Watney.

I can see no method by which the appellant, acting as an attaching creditor, could acquire authority to enforce the judgment of the Brown & Patterson Co. He could only issue execution upon his own order for payment over; he could issue none upon the judgment of that company. He could not renew an execution already issued; he could not prevent the Brown & Patterson Co. from withdrawing from the sheriff any execution issued by it, or from staying the sheriff's hands. He could not make the sheriff proceed to seize or sell under such an execution, or return the writ.

In Stevens v. Phelps, L. R. 10 Ch. 41 7, Sir G. Mellish, L. J. says: "I know of no authority for saying that a garnishee order can be enforced by the Court of Chanc ery: it is entirely a process of the courts of common law."

Upon this principle McAllen wonld have had no right, by virtue of his garnishee attaching order, to file a bill to enforce the judgment registered by the Brown & Patterson Co.; if that company filed a bill he could not prevent it from dismissing it nor could he compel it to proceed upon it. Garnishee process is a creature of statute, and the rights of the attaching creditor must be enforced in the way pointed out by the statute. His attaching order gives him a charge upon the debt owing by the garnishee to the primary debtor; he can enforce this by getting an order for payment by the garnishee to himself upon which he may then proceed as upon a judgment in his favor against the garnishee. For some purposes it may be necessary for a court of equity, in dealing with the liability which he has attached, to recognize the charge thus acquired; and if the Brown & Patterson Co. were now seeking to enforce its judgment against Allan, there might be ground, in order to protect Allan, but not by virtue of any right thereto in McAllen, to

cause the monies realized under it to be paid to McAllen instead of to the company. The Brown & Patterson Co., however, is not bound to enforce its judgment; it is at liberty to refrain from doing so; it might discharge it or release the lands in question from it without permission from McAllen. All it cannot do is to take away the force of McAllen's attaching order and order for payment by Allan to him; McAllen can enforce these by executions or in any other way in which he could enforce a judgment in his favor against Allan. This, however, constitutes his sole claim to any charge upon the lands in question, and, in respect of that, he ranks after both the plaintiff and Leitch.

The appeal must be dismissed with costs. The appellant should also pay the costs reserved by the order of the Chief Justice.

DUDLEY v. HENDERSON.

Livery stable keeper.-Lien for board of horses-Posting up of Act.

In an action of replevin for the detention of horses the defendant avowed for money due for board of the horses. The plaintiff pleaded that "at the time of the said detention the defendants had not posted up in the office and in two other places in their said stable a copy of the Act of the Legislature of the Province of Manitoba, passed in the 47th year of Her Majesty's reign chaptered 15."

Held on demurrer. That the plea was bad:

1. Because, Con. Stat. Man. c. 56, s. 9 not being incorporated with 47 Vic. c. 15 the lien given by the latter Act does not depend upon the posting up

of the Act.

2. And in any event the Act does not require the copies to be posted up when the goods are detained, but only when they are brought to the hotel.

Held also on exceptions to the avowry that it was unnecessary to allege the posting up of the notices.

Declaration in replevin for the detention of horses.

Avowry"That at and prior to the time of the said alleged detention they were keepers of a boarding stable in the City of Winnipeg, in the Province of Manitoba, and as such had the custody and possession of the said goods and chattels, and that before and at the time of said alleged detention the defendants had a lien onthe said goods and chattels for money payable by the plaintiff to the defendants for the stabling, boarding and caring for the said horses and the said money being still due and unpaid the defendants detained the said goods for a lien and security for the said money which is the alleged detention.”

The third plea, as in the head note.

Demurrer to plea and exceptions to avowry.

Chester Glass for defendant.

F. McKenzie, Q. C. for plaintiff.

KILLAM, J.-The third plea is clearly bad.

[12th May 1886.]

Even if the 9th section of "The Innkeepers and Boarding House Keepers Act" is applicable the limitation is that the lien is to exist only in respect of goods or property brought to the inn or hotel, while a copy of the Act is posted up, but the plea merely specifies that such copy was not posted up when the goods were detained, a time when the Act in no way requires the notice to be posted up in order to give a lien.

I am, however, of opinion that the 9th section of that Act is not incorporated with the later Act under which this lien is claimed. The latter Act, sec. 4, requires that a copy of the Act be "conspicuously posted up in the office and in at least two other conspicuous places in every such stable," while sec. 9 of the former Act requires "that every innkeeper and hotel keeper shall cause to be kept conspicuously posted up in the office and public rooms and in every bed-room in his inn or hotel a copy of this Act printed in plain type, and he shall be entitled, etc."

When the latter Act has expressly provided as to the posting up of the copy only in the office and two conspicuous places in the stable, it cannot be supposed that it was intended to intro