ENACTMENTS RELATIVE TO JUDGMENTS AFFECTING REAL AND PERSONAL PROPERTY. I. JUDGMENTS ACT, 1838, ss. 11—15, 17, 18 PAGE 483 499 501 503 508 II. JUDGMENTS ACT, 1839, s. 7 (Registration of Lis Pendens) V. LAND CHARGES ACT, 1900... I. THE JUDGMENTS ACT, 1838. 1 & 2 VICT. c. 110. An Act for abolishing Arrest on Mesne Process in Civil Actions, except in certain Cases; for extending the Remedies of Creditors against the Property of Debtors; and for amending the Laws for the Relief of Insolvent Debtors in England. § 11. Writ of Elegit...483. § 12. Writ of Fieri Facias...486. [16th August, 1838.] § 13. Judgments to operate as a Charge on Real Estate...489. $ 14, 15. Charging Orders on Stock, &c....492. § 17. Interest on Judgments...496. § 18. Decrees and Orders in Equity to have the Effect of Judgments ...497. deliver execu 11. And whereas the existing law is defective in not pro- 1 & 2 Vict. viding adequate means for enabling judgment creditors to ob- c. 110, s. 11. tain satisfaction from the property of their debtors, and it is Sheriff emexpedient to give judgment creditors more effectual remedies powered to against the real and personal estate of their debtors than they tion of lands possess under the existing law: be it therefore further enacted, to judgment that it shall be lawful for the sheriff or other officer to whom any writ of elegit, or any precept in pursuance thereof, shall be directed at the suit of any person upon any judgment, which at creditor. 1 & 2 Vict. c. 110, s. 11. the time appointed for the commencement of this act shall have been recovered, or shall be thereafter recovered in any action in any of her Majesty's superior courts at Westminster, to take and deliver execution unto the party in that behalf suing, of all such lands, tenements, rectories, tithes, rents and hereditaments, including lands and hereditaments of copyhold or customary tenure, as the person against whom execution is so sued, or any person in trust for him, shall have been seised or possessed of at the time of entering up the said judgment, or at any time afterwards, or over which such person shall at the time of entering up such judgment, or at any time afterwards, have any disposing power, which he might without the assent of any other person exercise for his own benefit, in like manner as the sheriff or other officer may now make and deliver execution of one moiety of the lands and tenements of any person against whom a writ of elegit is sued out; which lands, tenements, rectories, tithes, rents and hereditaments, by force and virtue of such execution, shall accordingly be held and enjoyed by the party to whom such execution shall be so made and delivered, subject to such account in the court out of which such execution shall have been sued out as a tenant by elegit is now Proviso as to subject to in a court of equity: provided always, that such party suing out execution, and to whom any copyhold or customary lands shall be so delivered in execution, shall be liable and is hereby required to make, perform and render to the lord of the manor or other person entitled all such and the like payments and services as the person against whom such execution shall be issued would have been bound to make, perform and render, in case such execution had not issued: and that the party so suing out such execution, and to whom any such copyhold or customary lands shall have been so delivered in execution, shall be entitled to hold the same until the amount of such payments, and the value of such services, as well as the amount of the judgment, shall have been levied: [provided also, that as against purchasers, mortgagees, or creditors, who shall have become such before the time appointed for the commencement of this act, such writ of elegit shall have no greater or other effect than a writ of elegit would have had in case this act had not passed]. copy hold lands. Proviso as to purchasers, mortgagees and creditors. What may be taken under an elegit. The words in italics have been repealed by the Stat. Law Rev. Act, 1874. Before this act the writ of elegit (which was founded on 13 Edw. 1, c. 18, the Statute of Westminster), affected only one moiety of the judgment debtor's lands. This section, however, has extended the remedy of the judgment creditor to the whole of the debtor's lands. The section expressly includes (1) copyholds which were not subject to execution under the old law (see ante, p. 410). (2) Rectories and tithes, which however are not ecclesiastical but lay (Hawkins v. Gathercole, 6 D. M. & G. 24; Bates v. Brothers, 2 Sm. & G. 509; Sweeny v. Fleming, 14 Ir. Ch. R. 23). (3) Land over which the debtor has a disposing power, as to which see the note to sect. 13 (post, p. 490). (4) Land held in trust for the debtor (as to this see before the act the Statute of Frauds, s. 10; Hunt v. Coles, 1 Comyns, 226; Steele v. Phillips, Beatty, 193; Hickson v. Aylward, 1 & 2 Vict. 3 Molloy, 25). The present section did not change the nature of the trust c. 110, s. 11. estates which might be taken under an elegit, and the old authorities apply (Re Newcastle, 8 Eq. 705; Digby v. Irvine, 6 Ir. Eq. R. 155). According to these authorities it was held that the trust must be a clear and simple trust for the debtor only (Doe v. Greenhill, 4 B. & Ald. 684; Forth v. Norfolk, 4 Madd. 503; Harris v. Booker, 4 Bing. 96). A term held on trust to attend the inheritance might be taken (Doe v. Evans, 1 C. & M. 450); but with regard to a particular equitable interest in leaseholds it was said that it could not be taken (Re Newcastle, 8 Eq. 706). An equity of redemption cannot be taken either in freeholds (Beckett v. Buckley, 17 Eq. 435; Wells v. Kilpin, 18 Eq. 298; Anglo-Italian Bank v. Davies, 9 Ch. Div. 282; Plunket v. Penson, 2 Atk. 290; see Thornton v. Finch, 4 Giff. 515), or in leaseholds (Salt v. Cooper, 16 Ch. D. 544). The following interests in land may, according to decided cases, be taken under an elegit:-An estate tail (Ashburnham v. St. John, Cro. Jac. 85; Gilb. Exec. 106; see Lewis v. Duncombe, 20 Beav. 398; Re Anthony, A. v. A., 1893, 3 Ch. 498). An estate for life, even in land excluded from a power of leasing (Davis v. Marlborough, 2 Swans. 121). The estate of a joint tenant (Lord Abergavenny's case, 6 Rep. 78 b; 2 Cru. Dig. 376), or of a tenant in common or a coparcener (2 Cru. Dig. 54). A reversion expectant on a lease for years or lives (Bishop of Bristol, 3 Leon. 113; R. v. Lane, 6 M. & W. 489; Re South, 9 Ch. 373). In the last-mentioned case the creditor to whom the land has been delivered cannot eject the tenants (Doe v. Wharton, 8 T. R. 2); but may sue (Hatton v. Haywood, 9 Ch. 236; Ramsbottom v. Buckhurst, 2 M. & S. 565), or distrain (Lloyd v. Davies, 2 Ex. 103), for rent falling due after the inquisition (Sharp v. Key, 8 M. & W. 379); and this without attornment by the tenants (Lloyd v. Davies, sup.; Rogers v. Pitcher, 6 Taunt. 207). As to a reversion expectant on a mortgage for a term of years, see Poole v. Whitt (15 M. & W. 571); Plunket v. Penson (2 Atk. 293); Johns v. Pink (1900, 1 Ch. 296). Leaseholds may be taken (Re Hobson, 33 Ch. D. 493; Carter v. Hughes, 2 H. & N. 714; Fleetwood's case, 8 Rep. 171), notwithstanding the Bankruptcy Act, 1883, s. 146 (Richardson v. Webb, 1 Morrell, 40), including the interest of a lessee who had mortgaged but remained in possession (Johns v. Pink, sup.). Land in ancient demesne (Cox v. Barnsley, Hob. 47; Martin v. Wilks, Moore, 211). A rent-charge (Moore, 32; see Wooton v. Shirt, Cro. Eliz. 742). Land belonging to a railway company; whether surplus (Re Hull & Barnsley R. Co., 40 Ch. D. 119), or that on which the line, &c. is built (Re Cowbridge R. Co., 5 Eq. 413). Land held by a public body for a public purpose (Worrall Waterworks Co. v. Lloyd, L. R. i C. P. 719; see, however, Jersey v. Uxbridge Authority, 1891, 3 Ch. 183). Land of which a receiver has been appointed (Gooch v. Haworth, 3 Beav. 428); but the leave of the court must be obtained (Bowen v. Brecon R. Co., 3 Eq. 541). Land subject to an equitable mortgage (Whitworth v. Gaugain, 1 Phil. 728; Brunton v. Neale, 14 L. J. Ch. 8). The following interests in land cannot be taken under an elegit:-An What may equity of redemption either in freeholds or leaseholds comprised in a not be taken. legal mortgage (Beckett v. Buckley and other cases quoted, sup.). Land of which the debtor was mortgagee, but which has become vested by conveyance in a purchaser or mortgagee for valuable consideration, the vendor's mortgage being paid off then or previously (the Judgments Act, 1855, s. 11; see Avison v. Holmes, 1 J. & H. 544; Greaves v. Wilson, 25 Beav. 434). An interest in remainder (Re South, 9 Ch. 369; Re Hamilton, 31 Ch. Div. 294). Land comprised in a prior voluntary conveyance (Beavan v. Oxford, 6 D. M. & G. 529). The interest of a debtor in land which has already been taken under an elegit (Carter v. Hughes, 2 H. & N. 714). A rent-seck (Walsall v. Heath, Cro. Eliz. 656). An inalienable office (Anon., Dyer, 7). Glebe or a churchyard (Arbuckle v. Coutan, 3 Bos. & P. 327; Parry v. Jones, 1 C. B. N. Š. 345). As to an advowson, see Robinson v. Tongue (3 P. Wms. 401). 1 & 2 Vict. c. 110, s. 11. Nature of interest of tenant by elegit. Inquisition. Beneficed clerk. Sheriff's poundage. Sheriff empowered to seize money, bank notes, &c., and to pay money or bank notes to execution creditors, and to sue for amount se cured by bills of exchange and other securities. The goods and chattels personal of a debtor cannot now be taken under an elegit (Bankruptcy Act, 1883, ss. 146, 168). Nor an equitable reversionary interest in the proceeds of sale of real estate (Tyrrell v. Painton, 1895, 1 Q. B. 205). Where the land delivered is freehold, the judgment creditor acquires a chattel interest measured by the satisfaction of the debt; while the judgment debtor has remaining in him an interest in the nature of a reversion. Where the land is leasehold, the judgment creditor acquires the whole term, subject to a legal title in the nature of an executory interest in the judgment debtor (Johns v. Pink, 1900, 1 Ch. 304). As to a tenant by elegit taking a conveyance of parts of the lands extended, see Hele v. Bexley (17 Beav. 14). In an inquisition on an elegit it is sufficient to describe the land in such a manner as would be sufficient to identify it in a conveyance (Doe v. Parry, 13 M. & W. 356). Where the judgment debtor is a beneficed clerk, and has no lay fee in the bailiwick of the sheriff to whom the writ was directed, the creditor may, as soon as the return is filed, sue out one or more writs of fieri facias de bonis ecclesiasticis, or of sequestration (R. S. C. Ord. 43, rr. 3, 4, 5). As to a sheriff's poundage, see 29 Eliz. c. 4, s. 1; the Estreats Act, As to the present form of the writ of elegit, see R. S. C. App. H., As to other modes of satisfying a judgment by means of the land of the 12. By virtue of any writ of fieri facias to be sued out of any superior or inferior court, [after the time appointed for the commencement of this act,] or any precept in pursuance thereof, the sheriff or other officer having the execution thereof may and shall seize and take any money or bank notes (whether of the Governor and Company of the Bank of England, or of any other bank or bankers), and any cheques, bills of exchange, promissory notes, bonds, specialties or other securities for money belonging to the person against whose effects such writ of fieri facias shall be sued out; and may and shall pay or deliver to the party suing out such execution, any money or bank notes, which shall be so seized, or a sufficient part thereof; and may and shall hold any such cheques, bills of exchange, promissory notes, bonds, specialties or other securities for money, as a security or securities for the amount by such writ of fieri facias directed to be levied, or so much thereof as shall not have been otherwise levied and raised; and may sue in the name of such sheriff or other officer for the recovery of the sum or sums secured thereby, if and when the time of payment thereof shall have arrived; and that the payment to such sheriff or other officer, by the party liable on any such cheque, bill of exchange, promissory note, bond, specialty or other security, with or H c. 110, s. 12. without suit, or the recovery and levying execution against the 1 & 2 Vict. party so liable, shall discharge him to the extent of such payment, or of such recovery and levy in execution, as the case may be, from his liability on any such cheque, bill of exchange, promissory note, bond, specialty or other security; and such sheriff or other officer may and shall pay over to the party suing out such writ the money so to be recovered, or such part thereof as shall be sufficient to discharge the amount by such writ directed to be levied; and if, after satisfaction of the amount so to be levied, together with sheriff's poundage and expenses, any surplus shall remain in the hands of such sheriff or other officer, the same shall be paid to the party against whom such writ shall be so issued; provided that no such Proviso as to sheriff or other officer shall be bound to sue any party liable indemnity of upon any such cheque, bill of exchange, promissory note, bond, specialty or other security, unless the party suing out such execution shall enter into a bond, with two sufficient sureties, for indemnifying him from all costs and expenses to be incurred in the prosecution of such action, or to which he may become liable in consequence thereof, the expense of such bond to be deducted out of any money to be recovered in such action. The words in italics have been repealed by the S. L. Rev. Act, 1874. sheriff. The effect of this section is to place bank notes and money seized under Effect of a fi. fa. upon the same footing as goods; therefore they are not to be section. treated as the property of the execution creditor until handed over by the sheriff to him (Collingridge v. Paxton, 11 C. B. 683); and are not available in the sheriff's hands to satisfy a writ of fi. fa. lodged with him against such execution creditor at the suit of a third person (Ib.). This section does not extend to a debt owing to the judgment debtor Cases under (Helmore v. Smith, 35 Ch. Div. 447; Harrison v. Paynter, 6 M. & W. 387; this section. Alleyn v. Darcy, 5 Ir. Ch. R. 56); or to money in the hands of a third party in trust for him (Robinson v. Peace, 7 Dowl. P. C. 93; Fieldhouse v. Croft, 4 East, 510), as in the hands of a sheriff (Collingridge v. Paxton, 11 C. B. 683; see Harrison v. Paynter, 6 M. & W. 387; Masters v. Stanley, 8 Dowl. P. C. 169), unless the sheriff has appropriated it for the debtor (Wood v. Wood, 4 Q. B. 397). A charging order has, however, been made on cash in court to assist an execution on a fi. fa. (Brereton v. Edwards, 21 Q. B. Div. 488; but see France v. Campbell, 9 Dowl. P. C. 914); and leave has been given to seize a cheque drawn in favour of the debtor by the Accountant-General, but not delivered to him (Watts v. Jeffreys, 3 Mac. & G. 422; see Courtoy v. Vincent, 15 Beav. 486). It has been said that this section applies only to securities of a similar nature to those expressly mentioned (Rollason v. Rollason, 34 Ch. D. 496). Policies of assurance, however, have been held within it (Stokoe v. Cowan, 29 Beav. 637; see contra, Re Sargent, 7 L. R. Ir. 66), also the covenant to pay in a mortgage (Avison v. Holmes, 1 J. & H. 530). Independently of this section, the sheriff can, under a fi. fa., seize all Fieri facias goods and chattels belonging to the debtor, including, in particular, the generally. following: (1) Terms of years and leaseholds (Fleetwood's case, 8 Rep. What may 171; Doe v. Smith, 1 M. & R. 137; Taylor v. Cole, 3 T. R. 292; Doe v. be taken. Donston, 1 B. & Ald. 230; see Doherty v. Nelson, 1895, 2 Ir. R. 90); which may be sold without seizing or taking possession of either the indenture of lease or the property (Coleman v. Rawlinson, 1 F. & F. 330). The term remains in the debtor until assignment by the sheriff (Playfair v. Musgrove, 14 M. & W. 239; Giles v. Grover, 9 Bing. 128; |