LEAMING V. WOON.

Garnishing equitable claim-Receiver—Judicature Act, (0.) Rule 370. G. was entitled under the will of C. to a life estate in land, and to the proceeds of personalty to be paid to her by the executors. Judgment creditors of G. had had a fi. fa., goods returned nulla bona, but had not sued out a fi. fa. lands, when a receiver was appointed to the estate of C., whereupon the judgment creditors by petition, before the passing of the Ontario Judicature Act, applied for an order that the receiver might be directed to pay their judgment out of G's. money in his hands; or that they might attach and sell G's. life estate; or that the tenants of the realty might be directed to attorn to the petitioners and that they might be put in receipt of the rents and profits.

Held, [on appeal from Proudfoot, V. C.] that such petition had been properly dismissed, for the creditors were not in a position when they presented it either to garnish the personal estate, if that could have been done under the A. J. Act, 1873, or to seize the real estate under execution; and they had therefore no rights which the appointment of a receiver interfered with.

But, Held, following Re Cowans' Estate, L. R. 14 Ch. D. 638, that the petitioners might now garnish the moneys in the hands of the receiver; and it being alleged that a fi. fa. lands had since issued, the Court upon payment of costs granted leave to the petitioners, under the prayer for general relief, to sue out such writs as they might be advised."

This was a suit to protect the estate of John Cade deceased, and on the 8th October, 1879, a decree on further directions was made by Blake, V. C,, whereby the defendant Robert Woon was appointed receiver of the estate of the testator, and to whom the tenants of the realty were to attorn and pay their rents. And the defendants, Mary Gurley, (who had been the widow of the testator,) William McGill, and George Henry, were ordered to transfer and deliver to the receiver all property and moneys in their hands belonging to the estate.

Subsequently thereto the Canadian Bank of Commerce presented a petition to the Court of Chancery, setting forth as follows:

"1. Under and by virtue of the last will and testament of John Cade, late of the village of Oshawa, in the county of Ontario, Esquire, the above named defendant Mary Cade (now Mary Gurley), became entitled for and during her natural life to all the real and personal property of the said testator John Cade, and it was by the said will directed and provided that the annual profits and income of the estate of the said testator should be at her disposal and for her use and benefit as long as she might live. 2. The real estate of the said testator consisted, at the time of his death, of five acres of land in the second concession of the township of

East Whitby, in the county of Ontario, and a dwelling house and premises in the village of Oshawa, and the personal estate consisted of money and mortgage securities to an amount exceeding $20,000. 3. In the year 1879, one Joseph Leaming, who was entitled under the said will to share in the reversion of the said estate after the death of the said Mary Gurley, filed a bill in this honourable Court, wherein the said Mary Gurley and others were made defendants, and such proceedings were thereupon had and taken that on the eighth day of October last a decree was issued in the said cause, appointing Robert Woon, one of the executors named in the said will, as receiver of the said estate, and he was thereby authorized to receive and get in the rents and profits of the said real estate, and to collect and get in the outstanding personal estate of the said testator, and the tenants of the said real estate were directed to and they did attorn to the said receiver; and the defendants in the said suit were directed to, and they accordingly did transfer and deliver to the said receiver all the personal estate of the testator; and the said receiver was thereby directed to deal with and apply the said rents and profits and personal estate during the lifetime of the said Mary Gurley, according to the directions of the said will. 4. The annual income from the said real and personal estate amounts to about the sum of $2,000, and the said receiver has from the date of his appointment as aforesaid received and collected the same, and has paid the same to the said Mary Gurley. 5. On or about the eighteenth day of March last your petitioners recovered a judgment at law against the said Mary Gurley for the sum of $508.60 and costs, amounting to the sum of $750.82 in all; and on the nineteenth day of March last caused a writ of fieri facias to be issued thereon, and placed the same in the hands of the proper sheriff in that behalf. 6. On the sixth day of May last the said sheriff returned the said writ nulla bona. 7. Your petitioners submit that the said sheriff is prevented by the appointment of the said receiver from realizing out of the life estate of the said Mary Gurley the said judgment or any portion thereof.

"Your petitioners therefore pray : 1. That the said receiver may be directed by this honourable Court to pay your petitioners the amount of the said judgment and costs out of the moneys coming into his hands belonging to the said Mary Gurley. 2. Or that your petitioners may be at liberty to attach the life estate of the said Mary Gurley in the said real and personal estate, and to sell so much thereof as may be sufficient to satisfy the said judgment and costs. 3. Or that the tenants of the said real estate may be directed to attorn to your petitioners, and that your petitioners may be put into possession of the rents and profits thereof, and that the said receiver may be ordered for the purposes aforesaid to give up possession of the said estate. 4. And that for the purposes aforesaid all proper directions may be given and accounts taken. 5. And that your petitioners may have such further and other relief in the premises as to your lordships may seem just. 6. And that your petitioners may be paid their costs of this petition."

The testator, by the second clause of his will, gave and bequeathed to his "dear wife, for and during her natural

life, all my real and personal property of every nature and kind whatsoever, it being my will and pleasure that the annual profits or income of my said estate shall be at her disposal and for her use and benefit so long as she may live." Affidavits were filed verifying the statements of the petition, and on the 2nd of June, 1880, the same came on to be heard before Proudfoot, V. C., who, at the conclusion of the argument, dismissed the petition with costs, to be paid by the bank to the defendants Robert Woon and Mary Gurley. From this order the bank appealed.

R. M. Wells and G. T. Blackstock, for the appellants, contended that the moneys collected by the receiver were in effect in custodia legis; and by its officer, the receiver, merely held it for whoever might ultimately be found entitled: Kerr on Receivers, 117, 121; McDonnell v. White, 11 H. L. Ca. 570. They also contended that the rule of equity is, that any one whose rights are interfered with by the appointment may, on making a proper application to the Court, obtain all that they may require; and the Court has power and will always take care to give a party who applies in a regular manner for the protection of his rights the means of obtaining justice, and will even assist him in asserting that right so that he may obtain the benefit of it: Angel v. Smith, 9 Vesey 355; Russel v. East Anglican Co. 3 M. & G. 117; Evelyn v. Lewis, 3 Hare 475; Hawkins v. Gathercole, 1 Drew 17. Brooks v. Greathead, 1 J. & W. 176; Gooch v. Haworth, 3 Bea. 428; Potts v. Warwick, Kay 148. Here it was shewn that Mary Gurley was entitled to the annual profits and income of the estate (about $2,000) for her life; and in the absence of the receiver the appellants and all other creditors of Mary Gurley could have seized the money in her hands, or otherwise have enforced their claims. By the appointment of that officer the sheriff had been prevented from seizing, and the rights of the appellants had in this and other respects been interfered with, but which they submitted had not been destroyed by such appointment in

a suit to which they were not parties; and that this Court could order the receiver to pay the appellants' claim out of the moneys in his hands, instead of to Mary Gurley, without in any degree contravening the doctrine as to equitable garnishment enunciated in Horsley v. Cox, L. R. 4 Ch. 92; Gilbert v. Jarvis, 16 Gr. 295; Fisken v. Brooke, 4 App. R. 8, which were decided upon entirely different principles, and had no application whatever to this case; and that since the passing of the Judicature Act in England there was no difference between the garnishing of legal and equitable debts: Wilson v. Dundas, Weekly Notes, 1875, p. 232: nor is there any such difference in this country since the passing of the Administration of Justice Act. And that, under the circumstances, the Court might either order the receiver to pay the appellants' claim or order the tenants of the estate to attorn to the appellants, or to permit the sheriff to enforce the execution against moneys in the hands of the receiver; for unless the appellants succeeded in this appeal they would be without remedy, as they were not at liberty to garnish the moneys in the hands of the receiver without leave of the Court; to do so might render them liable to be proceeded against as for a contempt: De Winton v. Breton, 28 Bea. 200.

W. Cassels, for the respondent, Mary Gurley. The debt of which payment is sought by the appellants is upon a judgment recovered in an action at law, and the appellants do not shew that they have exhausted their legal remedies for the satisfaction of their debt, or that it is by reason of the appointment of the receiver in the cause that they are prevented from enforcing payment of their debt. The corpus of the estate of which Mrs. Gurley is entitled to receive the income consists of a mixed fund of realty and personalty, and the estate of this respondent in such realty is a freehold estate assignable without the assent of any other person for her own benefit, and as such is exigible at law. But the appellants have not sued out the necessary process against such real estate, and they cannot be heard to say that they are hindered in the recovery of their debt

by the apointment of the receiver; neither do the appellants shew that against her interest in the personalty they have issued any process upon their judgment at law, which was at the time of filing their petition or is now in force, or which has been prevented from taking effect by reason of the appointment of the receiver. It would therefore seem as if the appellants are seeking the aid of the Court of Chancery for the satisfaction of their debt recovered at law, not because their legal process is interfered with by the appointment of the receiver, but because they desire to fix a charge upon an interest coming to this respondent out of personalty, which will not be ordered. Blake v Jarvis, 16 Gr. 295, and sec. 46 of the R. S. O. ch. 38, were also referred to.

J. Roaf, for the respondent Woon.

24th March, 1882. SPRAGGE, C. J. O.-Under the will of John Cade, the former husband of the defendant Mary Gurley, she was tenant for life of the real estate, having the legal estate in the land devised to her. She was also entitled for life to the proceeds of the personal estate, after payment of debts, the legal title to the personalty being in the executors.

The petitioners The Bank of Commerce are judgment creditors of Mary Gurley. At the date of filing their petition they had sued out a fi. fa. against her goods, which had been returned nulla bona, but they had not sued out a writ against lands.

First, as to the personalty; to what remedy of the judgment creditor was the appointment of a receiver an impediment. It was not an impediment if the creditor could have had against the receiver the same remedy, or as good and effectual a remedy, against the personalty of the debtor as he would have had against the personalty if a receiver had not been appointed. For the creditor it is contended that he would have had a remedy by garnishee proceedings. The remedy would have been by taking garnishee proceedings against the executors, attaching