The main legal point established in the judgment is that the procedure for rateable distribution under Section 295, now 73, applies to attached property in the custody of a Court and precludes any rateable distribution on equitable grounds among other classes of decree-holders.

John Wallis, C.J.

1. The answer to the reference appears to depend on the construction of Order XXI, Rule 52, of the Code of Civil Procedure, which was first enacted as Section 237 of the Code of 1859, under which the first attaching decree-holder was entitled, as the first judgment-creditor suing out a writ of fi-fa in England, to have his claim satisfied in fall out of the proceeds of execution, the surplus only being liable under the Code to rateable distribution among subsequent attaching creditors. It was however retained as Section 272 of the later Codes under which by virtue of Section 295, now 73, the attaching judgment-creditors were obliged to submit to rateable distribution with, but only with, other decree-holders who had applied to the attaching Court for execution before the date specified in the section. Now, it does not seem likely that the legislature would have retained, and even extended, the old Section 217 by substituting the word "property" for "money or any security" if it had considered that it would interfere with the due working of the procedure for rateable distribution introduced by Section 295, and would authorize the admission to rateable distribution of decree-holders who had not entitled themselves to rateable distribution under Section 295 by applying for execution to the Court in which the first attaching decree-holders decree was being executed, but had themselves subsequently to the first attachment attached the property in. the Court which had the custody of it, hereinafter called the custody Court The procedure for rateable distribution under Section 295, now 73, applies to attached property in the custody of a Court just as much as to any other kind of attached property, and, in my opinion, precludes any rateable distribution on equitable grounds, of property attached under Rule 52 among any other class of decree holders.

2. The section which is now Rule 52 prescribes a form of attachment for property which is "in the custody of a Court or any public officer" and "under the attachment is to be held subject to the further orders" of the attaching Court. Where the property attached is in the custody of a public officer, it is clearly the duty of the attaching Court to provide, if necessary, for the realization of the property and to divide the proceeds of the realization rateably between the attaching decree-holder and the other decree-holders who have applied to it for execution before it received such proceeds in satisfaction of their decrees. If the attached property is money, it is now, in my opinion, the duty of the attaching Court, having regard to the provisions of Section 295, to call on the public officer to pay it into Court and to deal with it in the same manner. When the property attached is in "the custody of a Court," it is equally to be held by the custody Court subject to the further orders of the attaching Court, and subject also to the proviso which has next to be examined which does not in my opinion either relieve the attaching Court of the duty of getting in and distributing the money or proceeds of realization if available and distributing them among the decree-holders entitled under Section 295, now 73, or authorize the custody Court to embark on another sort of rateable distribution among another class of decree-holders. The proviso only says that "any question of title or priority arising between the decree-holder" (meaning the decree-holder who had made the attachment) "and any other person not being the judgment-debtor claiming to be interested in such property by., virtue of any assignment, attachment, or otherwise shall be determined by such Court," the custody Court. This will include claims questioning the title of the judgment-debtor and other cases, but taking the present case of the property in the custody Court being made the subject of several attachments in execution of several decrees, the custody Court is then in my opinion required by the provis