HYNDMAN-JONES, J.

I am of opinion that the motion must be refused. (After stating the facts, the learned Judge went on to say): - The effect of the seizure of the property under the Writ of Execution was to place the property in custodid legis, and it thereupon became protected from distress, Wharton v. Naylor [1848] 12 Q.B. 673. Nor, under such circumstances, could a landlord before the Statute of Anne (8 Anne c. 14), by giving the Sheriff notice or otherwise, obtain payment of his rent by the Sheriff out of the money realised by the sale of the goods seized. The Law, however, was altered in this respect by s. 1 of that Statute which prohibited the removal of the goods seized until the rent in arrear not exceeding one year's rent had been paid. S. 1 of 8 Anne c. 14 is practically reproduced in The Distress Ordinance 1876, s. 23(1), with this qualification that by our Ordinance the rent is limited to six months' rent last due. No express notice to the Sheriff of the landlord's claim was necessary. It was sufficient if the Sheriff of the landlord's claim was necessary. It was sufficient if the Sheriff knew that rent was due, Andrews v. Dixon [1820] 3 B. & A. 645, and it became the practice for the Sheriff to sell the goods and pay the landlord out of the proceeds. If the Sheriff failed to pay, the landlord could obtain from there Court an Order for payment so long as the proceeds remained in the Sheriff's hands (In re Neil Mackenzie ex parte the Sheriff of Hertfordshire) [1899] 2 Q.B. 566, but when the proceeds had once been parted with to the execution creditor the landlord had no remedy, except as against the Sheriff, Yates v. Ratledge [1860] 5 H. & N. 249, Giles v. Grover [1832] 9 Bing, 128, 158.

In this case it appears that the Sheriff knew on the 23rd December, 1901, that the rent for December 1901, was owing to the landlord, but I am of opinion that such rent was not "due" within the meaning of s. 23(1) of the Distress Ordinance, 1876, for the same was not payable until the 31st of that month. The landlord could any have claimed from the Sheriff the rent which was due and payable at the time of the removal of the property and not that which accrued afterwards, Hoskins v. Knight [1813] 1 M. & S. 245; In re Davis ex parte Pollen Trustees 34 W. R. 442; 3 Morrel 27.

Even if the rent claimed by the landlord had become due at the time of the sale and removal of the property, I think that it would be difficult to support the contention of the landlord that he had a right to be paid out of the proceeds of sale, when these had passed from the Sheriff's hand and been handed over to the Official Assignee. No case was cited in support of that contention. On the 13th February, 1902, the debtor was adjudged bankrupt and thereupon his property became divisible among his creditors and vested in the Official Assignee. The seizure of the Bankrupt's property by the Sheriff on the 6th December, 1901, being an act of bankruptcy, the title of the Official Assignee to such property related back and commenced on that date and therefore has priority over any right of the landlord under s. 23(1), of the Distress Ordinance, 1876, to have such property kept unremoved; or his right, according to the case of In re Neil Mackenzie [1899] 2 Q.B. 566, to be paid out of the proceeds if the property had been removed and sold contrary to the Ordinance for the amount of rent which became due after the act of bankruptcy on the 6th December, 1901.