entitled to it under the assignment, which was prior in point of time to the second garnishee order. The defendant might have proceeded if there was any doubt as to who was entitled to the balance under rule 11 of the order; but he chose to pass over the assignment to the plaintiff, and to pay the money over under the second garnishee order, and he is therefore liable in this action. Wood v. Dunn (1866) L. R. 2 Q. B. 73, 7 Best & S. 94, 36 L. J. Q. B. N. S. 27, 15 L. T. N. S. 411, 15 Week. Rep. 180.

Cuthbert Smith, for the defendant. The decision of the House of Lords in Rogers v. Whiteley [1892] A. C. 118, 61 L. J. Q. B. N. S. 512, 66 L. T. N. S. 303, shows that when this assignment was made there was no chose in action, because the plaintiff could not have sued the defendant. The assignment did not operate until the first garnishee order had been satisfied by payment into court, and by that time the balance in the hands of the defendant was attached under the second order.

Collins, M.R.: This is an appeal by the plaintiff against the result of proceedings which were commenced by him in the county court. He obtained judgment, but on appeal to the Divisional Court the decision in his favor was reversed and

judgment given for the defendant. He sued as the assignee of a debt due from the defendant to one Henderson, and he gave notice of the assignment to the defendant. Prior to the giving of that notice a garnishee order had been served on the defendant, attaching all debts due from him to Henderson, to answer the judgment that had been obtained in the county court against Henderson. After the assignment and notice a second garnishee order was served on the defendant, in respect of another judgment obtained against Henderson in the same county court. Under these circumstances, what the defendant did with regard to the fund in his hand was to appropriate a sufficient sum to meet the judgment on which the first garnishee order was founded, and this sum he paid into court. He appropriated the balance in his hands towards satisfaction of the judgment on which the second garnishee order was founded, and he paid it into court in the action in which that judgment was obtained. That was an appropriation which [530] entirely ignored the inter

vening rights of the plaintiff as assignee. The county court judge held, on another ground than that argued before us, that the plaintiff was entitled to recover; and it certainly seems to me that he was. It was contended in answer to the plaintiff's claim that the effect of the first garnishee summons was to attach in the defendant's hands the whole of the debt due from him to Henderson, and not merely so much as was sufficient to satisfy the judgment debt, and it was said that while the attachment subsisted it would have been wrong to appropriate any part of the fund to any other purpose, and that therefore the assignment could not take effect. This argument is not applicable to the facts of this case, for the defendant freed himself, so far as the balance of the money was concerned, from liability under the first attachment by the payment into court. He was affected with notice of the assignment to the plaintiff, and held the balance of the money for the assignee, and, as that exhausted the fund in his hands, he was under no liability under the second garnishee order. He remained under liability to pay the money to the plaintiff, and cannot raise the defense that he has paid it away elsewhere, because he did not pay it under any exigency but of his own motion.

I am therefore of opinion that the appeal should be allowed, and the judgment of the county court judge in favor of the plaintiff restored.

Romer, L.J.: I agree. Where a debtor has been served with a garnishee order covering an amount less than the amount in his hands, no doubt he cannot be compelled to make any payment out of the money in his hands to anyone else so long as the attachment is in force. At the same time, it must be remembered that garnishee proceedings are for the purpose of enabling a judgment creditor of the person to whom the debt which is garnished is due to realize his judgment. The person in whose hands the debt is garnished holds it subject to the right of the judgment creditor, and has himself no right to the balance after satisfaction of the judgment. That right to the balance still remains in the person who originally had [531] the right to the whole, and it is capable of assignment. Such a right was assigned in this case, and the assignment completed by notice; so that everything was done to make the

assignment effective as to the debt in the hands of the defendant, subject to the right of the judgment creditor under the first garnishee order. In the result there was a balance left in the hands of the defendant bound by the assignment, and it was his duty not to let the subsequent garnishee order pass without notice that the fund was not really that of the judgment debtor, so that it could be attached, but that of an assignee. By breach of that obligation the assignee has lost his money, and according to well-known principles the defendant is liable for that loss.

Mathew, L.J., concurred.

Appeal allowed.

Solicitors for plaintiff: Field, Roscoe, & Company, for Yates & Company, Liverpool.

Solicitors for defendant: Sharpe, Parker, & Company, for Bielby & Welby, Liverpool.

Note.-Effect of assignment of surplus of garnished fund, to defeat a subsequent garnishment.

Although there are many cases involving the question of priority between an assignment of a debt or claim and a subsequent garnishment (in which it is universally held that the assignment, if in good faith and for a valuable consideration, will take precedence), research has disclosed but one other instance containing the additional element of a garnishment prior to the assignment.

This is Smith v. Clinton Bridge Co. (1883) 13 Ill. App. 572, in which it was said: "The levy of an attachment to the extent of its lien diminishes the property of the defendant; it does not take away his power to transfer or dispose of it, but such transfer will be subject to the lien of the attachment. And where an attachment has been served upon a garnishee, and it appears a debt due by him to the defendant has been equitably assigned before service, the court will take cognizance of, and protect the rights of the assignee. In states where a prior lien is given to the first attachment levied, or preferment to the first garnishee process served on garnishee, such lien or preferment takes effect not only as between plaintiff and defendant, but as between different plaintiffs, when the writ is levied or so served, and the writs will hold the property or debt, in the order of their service; where such priority is given, there is opportunity for the defendant in the interim between the date of the levy or

service of the first, and the date of the levy or service of the subsequent writ, to sell and transfer the property or make an equitable assignment of the debt; such sale or assignment being, of course, subject to the lien or claim of the writ already served, but being effective, if made without fraud, to prevent the lien or claim of the writ upon which there has been no service from afterward attaching." It was held, however, that the effect of a statute providing that "all judgments in attachments against the same defendant returnable at the same term, and all judgments in suits by summons, capias, or attachment against such defendant recovered at that term or at the term when the judgment in the first attachment upon which judgment shall be recovered is rendered, shall share pro rata according to the amount of the several judgments in the proceeds of the property attached either in the hands of a garnishee or otherwise," was to permit a subsequent garnishee to share pro rata in the garnished fund to the exclusion of an intermediate assignee. In this conclusion the supreme court concurred (Reeve v. Smith (1885) 113 Ill. 47), saying: "The statute that secures equality among the creditors of the common debtor is a wise and just one. Creditors of the attachment debtor ought not to be permitted to obtain an inequitable advantage over other creditors in a fund appropriated by law for a specific purpose, by taking an assignment of it before the time shall have arrived for distribution. That would contravene the positive provisions of the statute, which will not be sanctioned. It is familiar law that a chose in action is not assignable either at common law or under the statute of this state, so as to vest the legal title in the assignee. Such assignee will take the same subject to all defenses that existed against the assignor. In this case the interpleading creditors stand in the shoes of the bridge company, and can, of course, assert no rights in or to the funds attached other than the bridge company itself could do. The statute has fixed the mode by which the creditors of the attachment debtor may share in the proceeds of the property levied upon or in the funds garnisheed, and parties will not be permitted to defeat its provisions in that respect by taking to themselves an assignment of such property or funds, or by any other method that might be adopted. Its provisions in that regard will be recognized as controlling."

But notwithstanding such statute, if the first attaching creditor fails in his action or dismisses his suit, subsequent attaching creditors: will lose the benefit of the lien acquired by the former, and will take subject to any intervening lien. (Paltzer v. National Bank (1893) 145 Ill. 181, 34 N. E. 34); and by parity of reasoning it would seem that the subsequent garnishment would in such case be defeated by an intervening assignment. E. S. O.

[HOUSE OF LORDS.]

DENABY & CADEBY MAIN COLLIERIES, LIMITED, Appellants,

and

YORKSHIRE MINERS' ASSOCIATION and Others,

[1906] A. C. 384.

Respondents.

Also Reported in 75 L. J. K. B. N. S. 961, 95 L. T. N. S. 561, 22 Times L. R.

543.

Employer and workman — Inducing workmen to breach of contracts with employers — Strike – Principal and agent — Trade union Authority of branch officials to bind union · Ratification.

Where workmen strike in breach of their contracts those who help to maintain the strike by money and counsel are not liable to pay damages to the employers merely because losses are thereby caused to the employers.

A trade union having been sued for damages on the ground that workmen had been induced to break their contracts with their employers by officials of the union, and that the union had ratified and adopted the acts of their officials:

Held, that the union was not liable, those who procured the strike not having been authorized by the rules or by the action of the union.

(May 14, 1906.)

THE material facts are all stated in the judgment of Lord Loreburn, L.C. The effect of the rules of the respondents' association is given in that judgment, and in that of Lord James of Hereford.

The questions left to the special jury at the trial before Lawrance, J., and their answers, were as follows:

1. Did the defendants Nolan and Humphries, or either of and which of them, unlawfully and maliciously procure the men to break their contracts of employment by going out on strike on June 29 without giving notice?-Answer, Yes. 2. If you answer the first question in the affirmative, then were Nolan and Humphries, or either and which of them, in so doing purporting to act as agents of the association and for its benefit?-Answer, Yes. 3. Did the members of the committees of the Denaby and