Prout v Gregory
| Jurisdiction | England & Wales |
| Year | 1889 |
| Date | 1889 |
| Court | Divisional Court |
Practice - Attachment of Debts - Administration in Bankruptcy of Estate of Person dying Insolvent - Dividend payable by Official Receiver - “Debt” liable to be attached -
A dividend payable under the administration in bankruptcy of the estate of a person dying insolvent to a creditor of the estate is not a debt liable to be attached within the meaning of Order XLV., r. 1.
APPEAL from the order of a master discharging a garnishee order nisi, referred by a judge at chambers to the Court.
By s. 125 of the Bankruptcy Act, 1883, provisions are made for the administration in bankruptcy of the estates of persons dying insolvent; and by sub-s. 5 it is enacted that, upon an order for administration being made, the property of the debtor shall vest in the official receiver of the Court as trustee thereof, and that he shall forthwith proceed to realise and distribute it in accordance with the provisions of the Act; and by sub-s. 6 the provisions of Part III. of the Act relating to the administration of the property of a bankrupt are, with certain modifications, to apply to the case of an administration order under the section in like manner as to an order of adjudication. By s. 58 the trustee is to declare and distribute dividends amongst the creditors who have proved their debts.
It was admitted that the defendant, who was a judgment debtor of the plaintiff, was a creditor in the administration of the estate of a deceased insolvent, and that the sum sought to be attached was payable to him as a dividend in the administration. The garnishee was the official receiver of the Birmingham district, in whom the estate was vested as trustee under s. 125.
Percy Gye, for the plaintiff. The provision of the Bankruptcy Act, 1883, that these dividends are to be distributable among the creditors who have proved must be taken to be subject to the power of the Court to make a garnishee order in favour of a judgment creditor of a person entitled to receive a dividend under the administration. The dividend is a debt payable to the creditor who has proved, and is a debt liable to be attached within the meaning of the garnishee order.
Muir Mackenzie, for the official receiver, was not heard.
LORD COLERIDGE, C.J. This appeal must be dismissed. To make a garnishee order in such a case as the...
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...this view. They were not cases involving liquidators, but persons holding moneys in their capacities as office-holders. Prout v Gregory(1889) 24 QBD 281 involved an attempt to obtain a garnishee order against a trustee in bankruptcy, while Spence v Coleman [1901] 2 KB 199 was a case of fail......