JUDGMENTBY: HYNDMAN JONES, J, COX, C. J., LAW, J.

HYNDMAN JONES, J The facts of the case appeared in the affidavit of the Official Assignee.

The available Act of Bankruptcy, viz., the levying of execution by seizure, and by seizure only took place on the 13th February 1902; the execution creditor had notice of the Act of Bankruptcy because he himself caused it: and the Bankruptcy Ordinance Section 43 (1) & (2) provides that he shall not be entitled to retain the benefit of his execution against the Official Assignee unless he has completed the execution by seizure and sale before notice of the commission of an available Act of Bankruptcy: this he was clearly unable to do and the title of the Official Assignee, relating back to the time of the Act of Bankruptcy being committed on which the Receiving Order is made, must therefore prevail.

It was said, however, that ex parte Villars, In re Rogers LR 9 Ch 432 helped the execution creditor: that was a case decided under the Bankruptcy Act of 1869 in which a section similar to the one I have just quoted does not appear. The Judges in that case recognised the hardship of depriving a diligent creditor of the fruits of his diligence, and they said that a Judgment creditor by levying had a perfectly good common law security unless his rights were expressly displaced by Statute. Had the words "and sale" in Section 4(c) of our Ordinance not been deleted, or had the words "and sale" in Section 43(2) of our Ordinance been deleted, the reasoning in the case of ex parte Villars, In re Rogers might have been applied to the present case with more chance of success although there would still have been the difficulty that by Section 11 of the Bankruptcy Act of 1869 the title of the Official Assignee [ Editorial Note--This must be a clerical error and ought to read "Trustee in Bankruptcy."] relates back to the time when the Act of Bankruptcy on which the petition is founded is completed whereas, by our Ordinance the title relates back to the time when the act of Bankruptcy is completed.

As was said by Vaughan Williams, J. in the case of Figg v Moore 1 Manson 404, adopting the reasoning of James, L. J. in ex parte Villars "In such a case as ex parte Villars the act of Bankruptcy is not committed until immediately after the completion of the transaction on which it is founded..."Here (that is in Figg v. Moore) the common law right of the execution creditor is qualified by section 45 of the Bankruptcy Act 1883" and section 45 is reproduced in our Ordinance in section 43 (1) and (2). As the law stands therefore it excludes the right of the creditor in such a case as this as against the right of the Official Assignee.

It was argued that this could not be said to have been the intention of the Legislature, and that the Court should act on what it might well conceive to have been the true intention.

I was unable to take that view: the language of the Ordinance is plain, and the result arrived at is also plain.

As Jervis, C. J. pointed out in Abley v Dale 20 LJC p 235 "If the precise words used are plain and unambiguous we are bound to construe them in their ordinary sense, even though it does lead to an absurdity or manifest injustice. Words may be modified or varied where their import is doubtful or obscure, but we assume the functions of legislators when we depart from the ordinary meaning of precise words used merely because we see, or fancy we see, an absurdity or manifest injustice from an adherence to their literal meaning."

From this decision the Respondents appealed. The Appeal came on for hearing before a Court of Appeal consisting of Cox, C. J. and Law, J.

R. W. Braddell for Appellants.

Delay for Respondent.

COX, C. J. The Respondent does not deny, and there is clear authority for saying that under Section 43 of the Bankruptcy Ordinance, taken by itself, the creditor would be entitled to retain the proceeds of the execution, but it is contended for the Official Assignee that the

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