JUDGMENT

Page, C J - This appeal must; be dismissed. Before D.K. Cassin and Sons were adjudicated insolvents the appellant obtained a money decree against them. It appears that the insolvents brought a suit for damages for a personal tort, and in the course of these proceedings in the appellate Court and before the Privy Council costs were awarded to the insolvents. The insolvents have not obtained their discharge. The appellant has now applied in insolvency that leave should be granted to him to execute the decree that he had obtained against the insolvents by attachment of the costs that have been awarded to them, and on 5th May 1933 Sen, J., ordered:

that the petitioner above-named be and he is hereby granted leave to execute the decree against the insolvents above-named in the suit hereinafter mentioned on condition that whatever is realized less expense is paid to the Official Assignee.

2. The insolvents then applied for a review of that order upon the ground that the costs in question had been awarded to the petitioners in an action instituted by them to recover damages in respect or a wrong suffered by them, and such costs are not divisible among the creditors.

3. On 20th June 1933, Sen J., reviewed the said order, and cancelled the leave that had been granted to the appellant to execute his decree as prayed. Now, I am of opinion that the case of Ex Parte Vine In re Wilson (1878) 8 Ch. D. 364 does not correctly state the law as it now obtains, in so far as in that case it was laid down that a trustee-in-bankruptcy cannot intercept the damages recovered for a parsonal wrong done to an undischarged bankrupt. In my opinion damages obtained by an undischarged insolvent in respect of a personal wrong and costs awarded to an insolvent in such a suit, are property of the insolvent which is capable of passing to his assignee in insolvency under the Presidency Towns Insolvency Act: In Re Roberts (1900) 1 Q.B.D. 122; In re Grayadon (1896) 1 Q.B.D. 417; Biley v. Thurston & Co. Ltd. (1903) 1 K.B.D. 137; and Affleck v. Hammond (1912) 3 K.B.D. 565. But under that Act such property will not pass to the Official Assignee until he has intervened and claimed it Choung Taik v. Ma Thein Nu 1931 Rang. 74 and until the Official Assignee has intervened the doctrine of Cohen v. Mitchell (1890) 25 Q.B.D. 262 applies to transactions by the in. solvent relating to such property, namely that

until the trustee intervenes all transactions by a bankrupt after his bankruptcy with any person dealing with him bona fide and for value in respect of his after-acquired property, whether with or without knowledge of the bankruptcy are valid against the trustee.

4. Ma Phaw v. Maung Ba 1926 Rang. 179 was decided under Section 28(4), Provincial Insolvency Act, (1920), and is not ad rem. Now applying the law thus stated to the facts of the present case I am clearly of opinion that leave to execute his decree ought not to be granted to the appellant. The Official Assignee has not intervened and claimed these costs, and in these circumstances the plaintiff ought not to be allowed to execute his decree against the insolvents by attachment of the sums representing these costs. The appeal is dismissed with costs. The respondents are entitled to their costs, advocate's fee three gold mohurs in each Court.

Shaw, J.

5. I agree.