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 13 February 1902; the execution creditor had notice of the Act of Bankruptcy because he himself caused it: and the Bankruptcy Ordinance s. 43(1) and (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, 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 s. 4(c) of our Ordinance not been deleted, or had the words "and sale" in s. 43(2) of our Ordinance been deleted, the reasoning in the case of ex parte Villars, 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 s. 11 of the Bankruptcy Act of 1869 the title of the Official Assignee* 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 LJ 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 s. 45 of the Bankruptcy Act 1883" and s. 45 is reproduced in our Ordinance in s. 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 CJ 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 CJ and Law J.

JUDGMENT

Cox CJ:

The Respondent does not deny, and there is clear authority for saying that under s. 43 or 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 right is taken away by the Bankruptcy Amendment Ordinance 1896 which makes a seizure an act of Bankruptcy. It is argued that the seizure being an act of Bankruptcy the creditor must be said to have had notice of an act of Bankruptcy before the