T. T. 1859. QUIN v. 10, 15, 20, and consists of cash standing in the name of the Accountant-General of the Court of Chancery. Sections 36 and 38 of the Chancery Regulation Act 1850 (13 & 14 Vic., c. 89) enabled the Lord Chancellor to make his order of the 28th of October 1858, O'Keeffe. declaring the defendant entitled to his retiring allowance, payable out of the Suitors' Fee-fund. When the Lord Chancellor makes his order, the defendant's title is complete, and he may draw the allowance himself, or authorise any person, by power of attorney, to do 80. When application was made to the Master of the Rolls, for a charging order, under the 3 & 4 Vic., c. 105, s. 23, he declined to make the order, upon the ground that the word "money" is not mentioned in that section: 11 Ir. Jur., p. 167. The plaintiff then applied to this Court for a charging order, under section 135 of the Common Law Procedure Act 1853, in which "money" is expressly mentioned, to attach the fund as cash. It is argued on the other side, that this is not such an ascertained fixed fund as can be the subject of a charging order; and also, that such an order cannot be made under section 135 of the Common Law Procedure Act 1853, because the word "money" is omitted in the enacting part of that section. As to this latter point, the case of In re Wainewright (a) shows conclusively that the word "money" may be supplied by necessary implication. In Browne v. Ellis (b), funds standing in the name of the Accountant-General of the Incumbered Estates Court were charged under the 135th section.[O'BRIEN, J. By section 132, money standing in the name of a trustee would not be liable to be charged, but only stocks, funds, annuities, &c. To carry out your construction, you will therefore have to supply much more than the word " money" in the 135th section; nor will the introduction of that word alone answer your purpose, for the clause will then stand thus:-" "It shall be "lawful for the Court or a Judge to make such order as to such "stock, funds, annuities, shares and money, and the dividends, "interest and annual produce thereof, as if the same had been "standing in the name of a trustee for such judgment debtor." This refers back to section 132, by which the Court can charge (a) 1 Ph. 258. VOL. 10. (b) 3 Ir. Com. Law Rep. 106. QUIN V. O'KEEFFE. T. T. 1859. Government stock, funds, &c., standing in the name of a trustee, Queen's Bench. but not money standing in the name of a trustee. If, therefore, the Court can, under section 135, only make an order, as it can under section 132, that is an order as to stock, funds, &c., and shares standing in the name of a trustee, and not an order as to "money." It is clear that, as to money standing in the name of the Accountant-General, no order can be made at all; you must, therefore, in addition to the word "money," add "as if stocks, funds or shares" had been standing in the name of a trustee, &c.]— The word "same" in section 135 must be read distributively thus, "as if the same," that is, such stock, such funds, &c., had been standing in the name of a trustee, &c.-[O'BRIEN, J. That shows that the introduction of the word "money" into that section is not sufficient for your purpose.-LEFROY, C. J. Can money in the hands of a trustee be charged under the garnishee clauses?]-It can. The object of the Common Law Procedure Act 1853 is to increase the creditor's remedy, against every available species of his debtor's property. Although the exact amount to which a party may be entitled, of the stock standing to the credit of a cause, be not ascertained, yet as soon as it is ascertained that he is entitled to a portion of such amount, it may be charged under the 3 & 4 Vic, c. 105, ss. 23, 24: White v. O'Grady (a); White v. Heron (b). There are conflicting decisions as to whether shares of the nextof-kin in an administration fund can be charged under section 135 of the Common Law Procedure Act 1853. In Warren v. Wyse (c), the Court of Exchequer made the charging order; in Hatchell v. Wyse (d), the Court of Common Pleas refused to do so. In Brownrigg v. Colclough (e), such an interest was charged under the 3 & 4 Vic., c. 105, s. 23.-[LEFROY, C. J. What words can be wider than those of section 135 of the Common Law Procedure Act 1853, "an estate or interest in any stock, funds, annuities or shares or money?"]-No injustice can be done by this Court making the charging order, as the plaintiff must go to the Rolls to carry it out. (a) 2 Ir. Chan. Rep. 333. (b) 5 Ir. Law Rep. 167. (e) 7 Ir. Chan. Rep. 524. Sullivan (with him Exham), contra. Money cannot be charged either under the 3 & 4 Vic., c. 105, or the Common Law Procedure Act 1853; but, even if it could, then the Suitors' Fee-fund is not such money as can be charged under the 135th section. The Court cannot introduce the word "money," which is omitted from the enacting part of section 135, into it. When a statute creates a new power, its terms must be strong, cogent and free from ambiguity, in order to warrant the Court extending its provisions. The rules by which statutes should be construed are well enunciated in the judgments of the Court in Millar v. Salomons (a). The word "money" being omitted in the enacting part of section 135, whilst it is found in the clause preceding and following, shows a deliberate intention on the part of the Legislature not to legislate with respect to money, and that it must have crept into the section by mistake.-[PERRIN, J. I should rather say that it was omitted from the enacting part of the section by mistake.]—The Act of Parliament purports to put the Accountant-General in the same position as a trustee ; and, as money standing in the name of a trustee for the judgment debtor cannot be charged, neither can money standing in the name of the Accountant-General. The only charging order which the Court can make under section 135 is such as could be made under section 132, in which there is no mention made of money. The Court is called upon to read the word "money" before the words "stock, funds," &c., in section 135; but, if it do so, then the word " same will have a meaning not contemplated by the Act, which clearly intended to confine to the matters made chargeable under section 132, in which money is not spoken of. This day having been fixed specially for the further hearing of this case Sullivan resumed his argument. Before the creditor can have his charging order, he must have (a) 7 Exch. 559; S. C., 17 Jur. 463. • Coram LEFROY, C. J., O'BRIEN and HAYES, JJ. T. T. 1859. QUIN v. O'KEEFFE. July 9. QUIN V. When it is T. T. 1859. issued execution. Section 135 draws a distinction between the Queen's Bench. transfer of stock, funds, &c., and the payment of the dividends, interest, &c., thereof. The Court of Chancery, as such, has no O'KEEFFE. jurisdiction over the Suitors' Fee-fund. It is the Lord Chancellor, who, with the consent of the Commissioners of the Treasury, has power to fix the amount of the retiring allowance. provided by section 135 that no such order shall prevent the Governor and Company of the Bank of Ireland from permitting any transfer for such stock, funds, &c., the fund contemplated there is a fund over which the Court of Chancery, &c., has power; a fund brought into Court, the right to which, as between the several claimants, is to be decided upon by the Court; but not a fund created by Act of Parliament, and over which the Lord Chancellor has no power, except to fix the amount of the retiring allowance to be paid out of it. The Suitors' Fee-fund is a fluctuating fund; and, according to Wytham v. Lynch (a), it is not chargeable. The charging order is in the nature of a statutable execution; the Accountant-General is not to sell, but to hand over the very thing charged, to the Sheriff. If, in this case, the Court made such an order, how can it be carried out, the AccountantGeneral of the Court of Chancery not being amenable to the orders of this Court? A pension granted by the East India Company was held not to be chargeable under the 1 & 2 Vic., c. 110, ss. 14 and 15 Morris v. Manesty (b). Gamble, in reply. To bring a judgment debtor within section 135 of the Common Law Procedure Act, only two things need be shown; first, that there is a fund standing in the name of the Accountant-General, within the meaning of the Act; and, secondly, that the judgment debtor has an interest in that fund. The fund here sought to be charged is the Suitors' Fee-fund, which is created by the 6 & 7 W. 4, c. 74, ss. 3, 10, 15 and 20, and out of which the retiring allowance of the defendant is payable. By the 13 & 14 Vic., c. 89, s. 37, the officers there menttioned are to pay the fees received by (b) 7 Q. B. 674. (a) Supra. Queen's Bench. QUIN บ. them into the Bank of Ireland, to the credit of the Accountant- T. T. 1859. General, to an account called "the Suitors' Fee-fund account; and, by the 19 & 20 Vic., c. 92, s. 28, any deficiency in the said "Suitors' Fee-fund account" is, from time to time, to be made up o'KEEFFE. by advances from the Consolidated Fund. It is objected, that this fund being all "cash," and not "stock," that it is not chargeable under section 135 of the Common Law Procedure Act, that section not having provided for making a charging order upon "cash." Although this point has been now started, for the first time since. the passing of the Act, yet Judges of all the Courts of Common Law have made orders charging cash, none of which, up to the present, have been questioned: Browne v. Ellis (a). As to the construction of section 135; there is no rule of construction more stringent than this, that the intention of the Legislature, as appearing from the Act itself, must, if possible, be carried out by the Court: Dormer v. Packhurst (b). The first part of section 135, which makes mention of “stock, funds, annuities or shares or money," is a legislative declaration of an intention to legislate upon those several matters; and the same intention is apparent in the conclusion of the section, where provision is made for the transfer of "stock, funds, annuities, and shares or money." There being, therefore, a clear intention to legislate with respect to money, the Court is bound to carry out that intention, although the word "money" is omitted from the enacting portion of the section, by which the Court or a Judge is empowered to make a charging order only against "such stock, funds, annuities and shares, and the dividends, interest and annual produce thereof." This intention may be carried out, either by giving to the word "funds" a general meaning, so as to include "money," or, by inserting the word "money," by implication, into that part of the section from which it is omitted. The word "funds" has a general meaning, and may include either "stock" or "money," and has been used in the 21st section of the 6 & 7 W. 4, c. 74, the Act creating the Suitors' Fee-fund, to designate both the "stock" and "money" in that fund. When Acts of Parliament are in pari materia, if the same word occur in both statutes, the meaning (b) 3 Atk. 135, 136. (a) Supra. |