was, that it is not every mistake in a bankruptcy notice which will render the notice so defective that no act of bankruptcy could be committed by not complying with it.

This is not a case of a formal defect, and amendment ought not to be allowed under section 143 of the Bankruptcy Act, 1883.

VAUGHAN WILLIAMS, J.: This is an application to rescind a receiving order, and the ground of the application is that no act of bankruptcy was proved on which a receiving order could be made. The act of bankruptcy alleged, was non-compliance with a bankruptcy notice issued under section 4, subsection 1 (g) of the Bankruptcy Act, 1883. [His Lordship read the subsection, and continued:] Those being the words of the subsection, the facts are as follows: Judgment was obtained by one Grove against Follows-the debtor here-for 891. 16s. 9d., a writ of fi. fa. was delivered to the sheriff, and on 27 March the sheriff levied. There was a sale, and the sale realised 291. 16s. net. Then a claim is made on the sheriff to the proceeds of the execution by a third person. The sheriff is afraid to pay over the proceeds and commences interpleader proceedings, and pending the hearing of the interpleader summons the execution creditoron 27 April-serves a bankruptcy notice on the debtor for the whole amount of the debt, 891. 16s. 9d. At that date the creditor was not in a position to issue execution for two reasons: (i) because there had been an issue of execution and no return to the writ-and by the common law no second fi. fa. can issue until the first has been returned, the second writ having to recite the amount realised by the first; and (ii) because the interpleader summons was already issued. That fact-the issue of the interpleader summons--brings the case within the authority of In re Ford, Ex parte Ford (1), and In re Phillips, Ex parte Phillips (2). If it is correct that no execution could issue for the whole amount of the debt, the bankruptcy notice to pay the whole amount is bad, not because there was any right to stay-there is nothing in the statute to say that a bankruptcy notice is not to issue in these circumstances-but because the plain intention of the Act of Parliament is that the bankruptcy notice should only demand what the creditor can enforce execution for. It is conceded that if part of the judgment was paid the execution creditor could not levy execution or issue a bankruptcy

notice for more than was due. Neither can he do so while the amount of the debt is in dubio by reason of the pendency of an interpleader summons, as is the case here. That is enough to dispose of the case. At the date when Grove issued this bankruptcy notice he had no right to issue execution except for the balance.

Then is the matter one for amendment? In Mr. Justice MATHEW's opinion in In re Bates (9), it is; but according to Mr. Justice CAVE's view in In re Phillips (2), it is not. It is not necessary to decide between these authorities, for Mr. Mackenzie did not ask for leave to amend. All we have now to decide is, can a bankruptcy notice issue for an amount for which execution could not have issued-could it, in other words, have issued for the whole amount of 891. 16s. 9d.? The answer is "No." The creditor would have been bound to deduct the 291.

WRIGHT, J.: I agree, but I express no opinion whether the mere non-return of the writ would prevent the issue of a bankruptcy notice.

Solicitors: R. White, for W. S. Tunbridge, Redditch, for the

Petitioner.

R. Raphael, for Blackham & Taylor, Birmingham, for

the Debtor.

E. M.

IN RE CORNISH, EX PARTE THE BOARD
OF TRADE.

1895, October 25. VAUGHAN WILLIAMS AND KENNEDY, JJ.

Bankruptcy—Trustee-Account-Claim for by Board of Trade—“ Such Trustee” -Old Liquidation-No Funds in Hand-Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), s. 162 (1) (2) (a) (b).

The words " any such trustee," in section 162 (2) (b) of the Bankruptcy Act, 1883, mean any trustee or other person empowered to collect, receive, or distribute any funds or dividends under any Act of Parliament mentioned in the Fourth Schedule to the Bankruptcy Act, 1883, &c., not a trustee, under section 162 (1), having in his hands or under his control any unclaimed or undistributed moneys arising from old property of the debtor.

THIS was an appeal from the refusal of the Judge of the Exeter County Court to order a trustee under an old liquidation to render an account. The liquidation in question took place in 1874. The petition was presented in February, 1875, and the trustee was appointed in the following March. The last assets received were in 1875, since when nothing had been done in the liquidation. In 1894 the creditors complained to the Board of Trade that nothing had been received under the liquidation, and the liquidator and the Board of Trade thereupon, in accordance with its usual practice in such cases, first served the trustee with notice to furnish an account. The trustee by his account as furnished shewed assets received to the amount of 8501., but claimed to discharge himself by various payments, among the items being 2001. paid to the trustee's solicitor for law costs and 561. to auctioneers. On investigation, the Board of Trade ascertained that the allocatur for costs was only 1561. and that the auctioneer's fee was allowed at 201., and it required the trustee to furnish a further account, and on his failing to comply, applied to the County Court Judge for an order. The application was made under section 162 (1) of the Bankruptcy Act, 1883.

(1) Section 162 of the Bankruptcy Act, 1883, is, so far as material, as follows:

"162. (1) Where the trustee, under any bankruptcy, composition or scheme pursuant to this Act, shall have under

his control any unclaimed dividend which has remained unclaimed for more than six months, or where, after making a final dividend, such trustee shall have in his hands or under his control any unclaimed or undistributed

The Judge refused to make the order on the ground that the trustee was not a trustee having funds within the meaning of section 162 (2) (a), as interpreted by the decision of Mr. Justice CAVE in In re Chudley (2). The Board of Trade appealed.

Muir Mackenzie, for the appeal :

"Such trustee" means a trustee as defined by section 162 (1), that is a trustee empowered to collect, receive or distribute any funds or dividends under any of the scheduled Acts. The section gives power to order an account, and where the account is furnished the Board of Trade can then judge whether he has funds in his hands. In re Chudley, Ex parte The Board of Trade (2), was a different case.

Coldridge, for the trustee :

The power claimed here is a very arbitrary one. Twenty years have elapsed since the last assets were received, and all that time. the Board of Trade has not moved in the matter. In the present case the Board of Trade has no jurisdiction to claim an account. It must first satisfy the Court that the trustee is a trustee, under

moneys arising from the property of the debtor, he shall forthwith pay the same to the Bankruptcy Estate Account at the Bank of England. The Board of Trade shall furnish him with a certificate of receipt of the money so paid, which shall be an effectual discharge to him in respect thereof.

(2) (a) Where, after the passing of this Act, any unclaimed or undistributed funds or dividends in the hands or under the control of any trustee or other person empowered to collect, receive, or distribute any funds or dividends under any Act of Parliament mentioned in the Fourth Schedule, or any petition, resolution, deed or other proceeding under or in pursuance of any such Act, have remained or remain unclaimed or undistributed for six months after the same became claimable or distribut

(2) 2 Morr. 8; 14 Q. B. D. 402; 33 W. R. 708.

section 162 (2), having "unclaimed or undistributed funds or dividends" in his hands for the requisite time-two years. The trustee has had no funds in his hands since the passing of the Act. Even if the trustee is accountable, he is entitled to the benefit of the limitations section of the Trustee Act, 1888, s. 8: In re Page, Jones v. Morgan (3). That defence is now available to a trustee except where guilty of fraud or fraudulent breach of trust, and there is no suggestion of that here.

Muir Mackenzie, in reply:

The money must be treated as still in the trustee's hands until he has properly discharged himself. If the account had been properly audited it would have disclosed a balance payable into the Bankruptcy Estates Account. As to the limitations section of the Trustee Act, it can have no application. That Act is a general one, the Bankruptcy Act is express. Moreover, the Board of Trade stands in the place of the Court, and the trustee cannot set up the statute so as to defeat an official inquiry.

VAUGHAN WILLIAMS, J.: In my judgment the decision of the County Court Judge ought to be reversed. The Judge would have made the order had he not deemed himself precluded from doing so by the case of In re Chudley, Ex parte The Board of Trade (2). But there is nothing in In re Chudley to prevent the order. In that case an order for an account was applied for, and the answer set up was that the creditors had, prior to the application, granted the trustee a release after a statutory audit. In In re Chudley (2) Mr. Justice CAVE was only answering Mr. Yate Lee's contention, not giving any definition. I turn then to the section itself (section 162). The first subsection deals with unclaimed and undistributed dividends and funds under the present Act. I need not trouble with it. Subsection 2 deals with trustees under the scheduled Acts. [His Lordship read the subsection.] It is said that when we come to clause (b) we ought to read the words "such trustee " as meaning one who has funds in his hands or under his control as described in subsection (1). I think not. I think "such trustee" in subsection (2) (b), means a trustee empowered to collect, receive or distribute any

(3) 3 R. 171; [1893] 1 Ch. 304; 62 L. J. Ch. 592; 41 W. R. 357.