by recourse to a regular suit. Re J. B. Rainey v. Ishur Chunder Bhutta Charjee, 12 W. R., 333.

Money paid to release an attachment in execution of a decree cannot be made the subject of a claim under this section. Mohamed Beg v. Juggernauth Doss and Raganath Doss; claim of Omerchund & Ramnarain, 1 Ind. Jur., N. S., 248.

With regard to the redress open to an injured claimant :—In execution of a decree against his judgment-debtor, the, defendant caused the cattle of the plaintiff, a stranger, to be seized and taken. The plaintiff filed his claim under this section, which was allowed. Subsequent to the admission of the claim, but before the order for release of the cattle, three of the bullocks died. The plaintiff sued for damages, consequent on the seizure of the cattle, and for the value of the three bullocks which had died during the time they were in the custody of the officer of the court. Held, that the defendant was liable to the plaintiff for damages sustained by him in consequence of the seizure and detention of the cattle, i. e., for a sum sufficient to cover what would have been the plaintiffs expenses for hiring bullocks to cultivate his lands. Held, further that neither (old) Sec. 214, nor Sec. 15, Act XXIII of 1861, contemplates any enquiry before the court, whether the property belongs to the judgment-debtor or not; and that the seizure of personal property, in execution of a decree, is not an act of the court, but an act of the party himself seeking execution, for which he is liable for any trespass he committed on the property of a stranger. Mussamut Subjan Bibi v. Sheikh Sariatutta, 3 B. L. R., A. C., 413, of course where the injury occasioned no appreciable loss, the claimant will recover but nominal damages.

With the like power as, &c.-This does not import that the claimant necessarily must be made defendant and the executioncreditor plaintiff in the investigation. In England, where an issue is directed in interpleader proceedings at the instance of the sheriff, the claimant is made plaintiff and the execution-creditor defendant. The object of the issue is merely to satisfy the conscience of the court on the question, to which of the two parties the goods or their proceeds should be handed over. Hence, if the claimant on the

trial shows that he has an interest in the goods and the debtor has none, the claimant cannot be defeated by proof that the legal title is in some third party not claiming through the debtor, though it would seem that he may be if the third party do so claim. Thus where the claimant had let the goods to the debtor, her title was not defeated by proof that the goods in fact were the property of a stranger to whom the claimant acted only as agent, but who allowed her to have the entire management of them in her own name, Green v. Stephens, 2 H. & N., 146; so where the claimant was a married woman, proof of this fact was held not to entitle the executioncreditor to a verdict, Bird v. Crabb, 30 L. J., Ex., 318, the objection should have been taken on the original interpleader summons, and might be taken into consideration by the judge on making the final order for the disposal of the goods. Nor can a bill of sale prior to the claimants and invalid against an execution-creditor under the Bills of Sale Act, but valid against the claimant, be set up to defeat his title. Edwards v. English, 7 E. & B., 564. But in Gadsden v. Barrow, 9 Ex., 514, the execution-creditor was allowed to set up a valid bill of sale by the debtor prior to that under which the claimant made title. On the other hand, the execution-creditor cannot be defeated by proof of title in some third party inconsistent with the title of the claimant. Hence, where the claimants made title as trustees of the wife of the debtor, they were not allowed to set up the title of his assignees in bankruptcy. Carne v. Brice, 7 M. & W., 183. Nor where such assignees are claimants, can they set up a prior execution. Belcher v. Patten, 6 C. B., 608. See Lush, 780.

Where a claim was made under this section by a third party to some timber which had been attached by a prohibitory order under (old) Sec. 234,-Held, per Peacock, C. J., L. S. Jackson, Phear and Macpherson, J. J., (Mitter, J., dissenting,) that the claimant must begin. The onus is on him to prove that the goods attached were his property, or in his possession, and therefore not in the possession of the judgment-debtor. His evidence must be confined to proving his own claim, and he cannot be allowed to show a title in a third person with whom he has no connection. Nga Jha Yah v. F. N. Burn, 2 B. L. R., F. B., 91; S. C., 11 W. R., F. B., 8.

Evidence to be adduced by claimant.

279. The claimant or objector must adduce evidence to show that at the date of the attachment he had some interest in, or was possessed of, the property attached.

This new section makes it clear that the claimant or objector is to be treated as the plaintiff in the interpleader suit, and the execution-creditor the defendant, as in England. See the notes

above.

He. And not another: See the notes to Sec. 278.

Interest in.-See the notes to Sec. 16.

Possessed of-See the notes to Sec. 263.

280. If upon the said investigation the Court is satisfied that, for the reason stated in the claim or objection, such proRelease of property perty was not, when attached, in the possession of the from attachment. judgment-debtor or of some person in trust for him, or in the occupancy of a tenant or other person paying rent to him, or that, being in the possession of the judgment-debtor at such time, it was so in his possession, not on his own account or as his own property, but on account of or in trust for some other person, or partly on his own account and partly on account of some other person, the Court shall pass an order for releasing the property wholly or to such extent as it thinks fit, from attachment.

For the reason.-And for no other. See Sec. 279.

When attached.-These two words are of the utmost importance. The previous history of the property may be of comparatively little importance in an investigation of a claim of this kind: what the court must, if possible, ascertain with precision is the fact of possession at the date of the attachment.

In the occupancy.-See the notes to Sec. 264.

Shall pass an order for releasing.-In disposing of a claim under this section, if the court be of opinion that the property attached ought not to be sold, the proper order for the court to make is a simple order to release the property from attachment. Bhyrul Lall Bhukut v. Meer Abdool Hossein and others, 8 W. R., 93.

In Cowar Rajkumar Roy v. S. M. Kadambini Debi, 4 B. L. R., F. B., 175, the Calcutta High Court held that the court was bound to enquire and pronounce upon the quantum of interest in the judgment-debtor and in the claimant respectively, and release the property from attachment only to the extent of the interest of the claimant.

When, under this section, property which has been attached is ordered to be released,' the order for release is made with reference merely to the particular claimant who has obtained the order. The order is not to be regarded as a general decision (of which all the world can have the benefit) that the property does not belong to the judgment-debtor. Mussamut Inam Bandee Begum v. Mirza Mahomed Tukee Khan and others, 8 W. R., 27.

Disallowance

of

281. If the Court is satisfied that the property was, at the time it was attached, in possession of the judgment-debtor as his own property and not on account of any other person, or was in the possession of some other person in trust for him, or in the occupancy of a tenant rent to him, the Court shall disallow the claim.

claim to release of pro

perty attached.

or other person paying

At the time.

Continuance of attachment subject to claim of incumbrancer.

See the notes to "when attached" under Sec. 280.

282. If the Court is satisfied that the property is subject to a mortgage or lien in favour of some person not in possession, and thinks fit to continue the attachment, it may do so, subject to such mortgage or lien.

This is an addition to the Code of great importance.

Is satisfied.-By satisfactory evidence, not by surmises and guesses.

Lien.-Goods which are subject to the lien of a third party cannot be taken. Rogers v. Kennay, 9 Q. B., 592.

Wharton says of a 'lien,' that it answers to the tacita hypotheca of the civil law, and is a right in one man to retain that which is in his possession belonging to another, until certain demands of the person in possession are satisfied. It is neither a jus in re, nor a jus ad rem. It is either particular' or 'general' and may arise by express or implied contract, or by mere operation of law.

A ship-owner having mortgaged his ship, has still an interest in her seizable in attachment. Auchin and others v. Ahmed Mahomed, 1 In. Jur. (N. S.), 241.

283. The party against whom an order under Sec. 280, 281 or 282 is Saving of suits to passed may institute a suit to establish the right which he claims to the property in dispute, but subestablish right to atject to the result of such suit, if any, the order shall tached property. be conclusive.

The old limitation of time for such suit has been removed, and with it, we may hope, much of the difficulty that surrounded procedure under this part of the Code.

284. Any Court Power to order property attached to be sold, and proceeds to be paid to person entitled.

may order that any property which has been attached, or such portion thereof as may seem necessary to satisfy the decree, shall be sold, and that the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under the decree to receive

the same.

not in the custody of any Court has been attached in execution of decrees of more Courts than one,

285. Where property Property attached in execution of decrees of several Courts.

the Court which shall receive or realize such property and shall determine any claim thereto and any objection to the attachment thereof shall be the Court of highest grade, or where there is no difference in grade between such Courts, the Court under whose decree the property was first attached.

286. Sales in

G.-Of Sale and Delivery of Property.

(a) General Rules.

execution of decrees shall be conducted by an officer of the Court or by any other person whom the Court may appoint, and, except as provided in Sec. 296, shall be made by public auction in manner hereinafter mentioned

Sales by whom conducted and how made.

287. When any property is ordered to be sold by public auction in execution of a decree, the Court shall cause a proclamation Proclamation of sales of the intended sale to be made in the language of such Court. Such proclamation shall state the time and place of sale; and shall specify as fairly and accurately as possible

by public auction.

(a) the property to be sold;

(b) the revenue assessed upon the estate or part of the estate, when the property to be sold is an interest in an estate or a part of an estate paying revenue to Government;

(c) any incumbrance to which the property is liable;

(d) the amount for the recovery of which the sale is ordered; and

(e) every other thing which the Court considers material for the purchaser to know in order to judge of the nature and value of the property.

For the purpose of ascertaining the matters so to be specified, the Court may summon any person whom it thinks necessary, and examine him in respect to any such matters, and require him to produce any document in his possession or power relating thereto.

The High Court shall, as soon as may be after this Code comes into force, Rules to be made of their duties under this section. The High Court make rules for the guidance of the Courts in exercise by High Court. may from time to time alter any rules so made. All such rules shall be published in the local official Gazette and shall thereupon have the force of law. As regards his own Court and the Court of Small Causes at Rangoon, the Recorder of Rangoon shall be deemed to be a 'High Court' within the meaning of this paragraph.

Nothing in this section shall apply to cases in which the execution of the decree has been transferred to the Collector.

The section has been very considerably altered after much deliberation. (1) It now makes it necessary for the court to ascertain at least to some extent the existence of incumbrances and "other