1 & 2 Vict. c. 110, s. 18. Cases under this section. Enforcement of judgment or orders. deemed judgment creditors within the meaning of this act; and all powers hereby given to the judges of the superior courts of common law with respect to matters depending in the same courts shall and may be exercised by courts of equity with respect to matters therein depending, [and by the Lord Chancellor and the court of review in matters of bankruptcy,] and by the Lord Chancellor in matters of lunacy; and all remedies hereby given to judgment creditors are in like manner given to persons to whom any moneys or costs, charges or expenses are by such orders or rules respectively directed to be paid. The words in italics were repealed by the S. L. Rev. Act, 1874. This section is extended to the equity court of Durham as to lands within its jurisdiction (Judgments Act, 1855, s. 2). As to enforcing a judgment of the Durham court against land outside its jurisdiction, see Palatine Court of Durham Act, 1889, s. 3. As to the Lancaster court, see the Court of Chancery of Lancaster Act, 1850, s. 24. A decree ordering a defendant to pay a sum of money, interest and costs, when ascertained, was held to be within this section (Beaufort v. Phillips, 1 De G. & Sm. 321). Also a judgment entered up under the Solicitors Act, 1843, s. 43 (Griffiths v. Hughes, 16 M. & W. 809); and an interlocutory order for payment of costs by one person to another (Taylor v. Roe, 1894, 1 Ch. 413); but not a decree for an account and payment of what should be found due (Chadwick v. Holt, 8 D. M. & G. 584; Garner v. Briggs, 6 W. R. 378); nor an order for a foreclosure (Burrows v. Holley, 35 Ch. D. 123); nor the chief clerk's certificate finding money to be due to a party, though adopted by the judge (Mansfield v. Oyle, 4 De G. & J. 38); nor a decree directing payment to the credit of a cause (Ward v. Shakeshaft, 1 Dr. & Sm. 269; Ward v. Docker, 5 Jur. N. S. 1287; compare Re Leeds Bank, 1 Ch. 150; Johnson v. Burgess, 15 Eq. 398; see Gibbs v. Pike, 9 M. & W. 351; see Exp. Hammond Brown, 67 L. T. 234). As to enforcing a decree in the last-mentioned form, see R. S. C. Ord. 42, r. 4; Re Coney, Coney v. Bennett, 29 Ch. D. 993; Re Whiteley, Whiteley v. Learoyd, 56 L. T. 846; De la Pole v. Dick, 29 Ch. Div. 351. A rule for taxation of costs, and an allocatur of the master, do not amount to a judgment within this section (Shaw v. Neale, 6 H. L. C. 581); nor a judge's order for payment of money obtained ex parte (Richards v. Patterson, 8 M. & W. 313; see Neale v. Postlethwaite, 8 Dowl. P. C. 100). Under R. S. C. Ord. 42, r. 3, a judgment for the payment to any person of money may be enforced by any of the modes by which a judgment or decree for the payment of money of any court whose jurisdiction is transferred by the Jud. Act, 1873, might have been enforced at the time of the passing thereof. And under R. S. C. Ord. 42, r. 24, every order of the court or a judge in any cause or matter may be enforced against all persons bound thereby in the same manner as a judgment to the same effect. Any person not a party to a cause or matter in whose favour any order is made may enforce such order by the same process as if he were a party, and a judgment or order may be enforced against him as if he were a party (R. S. C. Ord. 42, r. 26). By sects. 93 and 94 of the Bankbankruptcy. ruptcy Act, 1883, the Court of Bankruptcy was united with the Supreme Court. And under the Bankruptcy Rules, 1886, No. 93, every order of the court in bankruptcy may be enforced as if it were a judgment to the same effect (see also r. 107). Orders in Execution. Every person to whom any sum of money or any costs shall be payable under a judgment shall, so soon as they are payable, be entitled to execution (R. S. C. Ord. 42, r. 17; see before this rule Doe v. Barrell, 10 Q. B. 531; Doe v. Hampson, 5 Dowl. & L. 484; Wallis v. Sheffield, 3 Jur. 1002; Hill v. Brown, 16 M. & W. 796). And where costs are given to be ascertained by taxation, a separate writ may be issued for them when taxed (R. S. C. Ord. 42, r. 18; Harris v. Jewell, 1883, W. N. 216; see before 1 & 2 Vict. c. 110, s. 18. this rule, Jones v. Williams, 8 M. & W. 349; Hodgson v. Patterson, 5 Scott, N. R. 76; Cetti v. Bartlett, 9 M. & W. 840). As to a judgment on a condition, see R. S. C. Ord. 42, r. 9; Gibbs v. Flight (13 C. B. 803). Under the Arbitration Act, 1889, a submission, unless a contrary inten- Awards. tion is expressed therein, has the same effect as if it had been made an order of court (sect. 1), and an award may, by leave of the court or a judge, be enforced in the same manner as a judgment or order to the same effect (sect. 12). For the older cases as to enforcing awards under this section, see Jones v. Williams (11 Ad. & Ell. 175); Dickenson v. Allsop (13 M. & W. 722); Fawcett v. E. C. R. Co. (6 Dowl. & L. 54); Mackenzie v. Sligo R. Co. (9 C. B. 250); Lambe v. Jones (9 C. B. N. S. 478); Lloyd v. Harris (8 C. B. 63). [Sect. 19, providing for the registration of judgments, was repealed by the Land Charges Act, 1900. Sect. 20, providing for new or altered writs to give effect to the Judgments Act, 1838, was repealed by the Civil Procedure Acts Repeal Act, 1879. See now R. S. C. Ord. 42, r. 14. Sect. 21 extended the provisions of the Judgments Act, 1838, to the Common Law Courts of Lancaster and Durham, the jurisdiction of which was transferred to the High Court by the Judicature Act, 1873, s. 16. Sect. 22 contains provisions for the removal of judgments of inferior courts into the High Court for the purpose of enforcement.] II. JUDGMENTS ACT, 1839. 2 & 3 VICT. c. 11, s. 7. Registration of Lis Pendens. c. 11, s. 7. Purchasers not to be affected by any lis pendens, unless such suit is duly regis 7. No lis pendens shall bind a purchaser or mortgagee with- 2 & 3 Vict. out express notice thereof, unless and until a memorandum or minute, containing the name and the usual or last known place of abode, and the title, trade or profession, of the person whose estate is intended to be affected thereby, and the court of equity, and the title of the cause or information, and the day when the bill or information was filed, shall be left with the senior master of the said Court of Common Pleas, who shall forthwith enter tered as the same particulars in a book as aforesaid, in alphabetical directed by order, by the name of the person whose estate is intended to be this act. affected by such lis pendens; and such officer shall be entitled for any such entry to the sum of two shillings and sixpence; and the provisions herein before contained in regard to the reentering of judgments every five years, and the fee payable to the officer thereon, shall extend to every case of lis pendens which shall be registered under the provisions of this act. Lis pendens affects a purchaser not because it amounts to notice, but 2 & 3 Vict. c. 11, s. 7. What is lis pendens. What is not lis pendens. Satisfaction. Palatine because the law does not allow one party, pendente lite, to alienate the property in dispute so as to affect his opponent (Bellamy v. Sabine, 1 De G. & J. 578; Price v. Price, 35 Ch. D. 302). There should be no registration as a lis pendens, unless a claim is made in the proceeding against some specific property (Ex p. Thornton, 2 Ch. 178). As to the doctrine of lis pendens generally, see Bellamy v. Sabine (1 De G. & J. 566); Kinsman v. Kinsman (1 R. & M. 617); Wigram v. Buckley (1894, 3 Ch. 483). As to the protection afforded by registration, see Beyfus v. Bullock (7 Eq. 391). And as to negligence on the part of a solicitor for not registering a lis pendens, see Plant v. Pearman (20 W. R. 314). An order under sect. 7 of the S. L. A. 1884, may be registered as a lis pendens (see sub-sects. (5) and (6) of that section, post). In the following cases the proceeding was held to be a lis pendens: a suit to establish a will (Garth v. Ward, 2 Atk. 174); a redemption action by a mortgagor (Ib.); a foreclosure action by a mortgagee (Winchester v. Paine, 11 Ves. 194); an action for specific performance (see Baxter v. Middleton, 1898, 1 Ch. 313). A case where there are questions between co-defendants may be a lis pendens, as regards a purchaser from one of them (Tyler v. Thomas, 25 Beav. 47; see Bellamy v. Sabine, 1 De G. & J. 566). When debts are charged upon real estate, a creditor's action to administer real and personal estate, if registered as a lis pendens, will give the plaintiff priority over the assign of any defendant entitled to real estate under the will, except when such assign had a right to suppose that such defendant was dealing with the property to pay debts (Price v. Price, 35 Ch. D. 301). When debts are not charged, registration of such an action will give priority, when, and only when, the real estate sought to be charged is sufficiently indicated; the above exception, however, applying in this case also (Ib. 305). In the following cases the proceeding was held not to be a lis pendens. An action relating to money secured on the land (Worsley v. Scarborough, 2 Atk. 392; see, however, Norris v. Stuart, 16 Beav. 359). A partnership action, as against the real estate of one of the partners (Ex p. Thornton, 2 Ch. 176). A suit for a divorce is not a lis pendens, as regards the property included in the marriage settlements, until decree (Wigney v. Wigney, 7 P. D. 228). After decree and before execution there is no lis pendens (Kinsman v. Kinsman, 1 R. & M. 617; Worsley v. Scarborough, 3 Atk. 392), unless the decree is only for an account, and is not final (Worsley v. Scarborough, sup.). The doctrine of lis pendens does not apply to personal property other than chattel interests in land (Wigram v. Buckley, 1894, 3 Ch. 483; see Berry v. Gibbons, 8 Ch. 747). Satisfaction may be entered as to a registered lis pendens under the Crown Debts and Judgments Act, 1860, s. 2; and the court may order the vacating of the registration of a lis pendens where the suit has determined, or where the court is satisfied that the litigation is not being prosecuted bona fide (the Lis Pendens Act, 1867, s. 2). Thus registration was vacated where plaintiff did not appear at trial (Reilly v. Richardson, 43 S. J. 457). An order under the section may be made upon separate motion (Clutton v. Lee, 7 Ch. D. 541, n.; Pooley v. Bosanquet, Ib.; Jervis v. Berridge, 23 W. R. 43), or may be included in the judgment dismissing the action (Baxter v. Middleton, 1898, 1 Ch. 313; where the order was made, “unless an appeal is set down within a fortnight"). Registration against a person not party to the action may be vacated (Schofield v. Solomon, 52 L. T. 679; 54 L. J. Ch. 1101). With respect to land within the jurisdiction of a Palatine Court no lis pendens shall bind purchasers unless registered in the Palatine Court (Judgments Act, 1855, s. 3; see Land Charges Act, 1900, s. 5, and schedule). III. JUDGMENTS ACT, 1864. 27 & 28 VICT. c. 112, ss. 4-7. delivered in mary order 4. Every creditor (g) to whom any land of his debtor shall 27 & 28 Vict. have been actually delivered in execution (h) by virtue of any c. 112, s. 4. such judgment (i), statute, or recognizance [and whose writ or Creditor to other process of execution shall be duly registered], shall be entitled whom land forthwith, or at any time afterwards while the registry of such execution writ or process shall continue in force, to obtain from the Court entitled to of Chancery, upon petition in a summary way, an order for the obtain sumsale of the debtor's interest in such land, and every such petition from Court of may be served upon the debtor only; and thereupon the court Chancery for shall direct all such inquiries to be made as to the nature and particulars of the debtor's interest in such land, and his title thereto, as shall appear to be necessary or proper (); and in making such inquiries, and generally in carrying into effect such order for sale, the practice of the said court with respect to sales of real estates of deceased persons for the payment of debts shall be adopted and followed, so far as the same may be found conveniently applicable. sale. (9) The Land Charges Act, 1900 (post, p. 513), has repealed sects. 1-3 Land Charges of the present act and also the words in the above section printed in italics. Act, 1900. By sect. 2 of the Land Charges Act, 1900, no judgment can operate as a charge on land until a writ or order for enforcing it has been registered under sect. 5 of the Land Charges Act, 1888. Having regard to this provision and to the unrepealed words of the present section, "while the registry of such writ or process shall continue in force," it would seem that before a judgment creditor can obtain an order for sale under the section, he must still obtain and register a writ or order for enforcing his judgment. A plaintiff in an administration suit who had obtained an order for Who is a payment into court, and issued sequestration, was not a creditor within creditor. this section (Johnson v. Burgess, 15 Eq. 398). (h) A sale has been refused where there had been no delivery (Re Actual Cowbridge R. Co., 5 Eq. 413; see Guest v. Cowbridge R. Co., 6 Eq. 619; delivery Re Newcastle, 8 Eq. 700; Kidd v. Tallentire, 1877, W. N. 21). necessary. () As regards the question, what amounts to actual delivery in Actual execution within the present section, it seems that the decisions under delivery in (the repealed) sect. 1 of the Judgments Act, 1864, would apply. That execution. section provided that no judgment, statute or recognizance should affect land until such land should have been actually delivered in execution by virtue of a writ of elegit or other lawful authority in pursuance of such judgment, statute or recognizance. And under that section the following were held to amount to actual delivery in execution, viz. :-The return of the sheriff to a writ of elegit, the land not having been entered on (Champneys v. Burland, 19 W. R. 148); delivery of the seisin before the return (Re Hobson, 55 L. T. 255); sequestration (Re Rush, 10 Eq. 442). But not (as regards freeholds) the mere issue of an elegit which cannot be executed, because the land is already taken under a prior elegit (Re Cowbridge R. Co., 5 Eq. 413; Hatton v. Haywood, 9 Ch. 229), nor (as regards an equitable interest in leaseholds), the issue and registration of a fi. fa. (Backhouse v. Siddle, 38 L. T. 487). Further, as regards a receivership order, it was held that this amounted Receivership to actual delivery of the land in execution within sect. 1 of the Judgments order. Act, 1864 (Anglo-Italian Bank v. Davies, 9 Ch. D. 293; Ex p. Evans, 13 27 & 28 Vict. c. 112, s. 4. Receivership orders as to land, gener ally. Lands of a railway company. Practice. Inquiries. Where there are other creditors, notice of sale to be served upon them. Ch. Div. 257; Re Pope, 17 Q. B. Div. 751), except in the case of a legal estate in remainder (Re Harrison and Bottomley, 1899, 1 Ch. 465; see Jones v. Barnett, 1900, 1 Ch. 370). It has been laid down generally, in a case where a judgment was sought to be enforced against land, that the appointment of a receiver is not execution, but equitable relief, which is granted on the ground that there is no remedy by execution at law (Re Shephard, Atkins v. Shephard, 43 Ch. D. 135; Levasseur v. Mason, 1891, 2 Q. B. 79). There is no jurisdiction to appoint a receiver merely because it would be more convenient than the usual mode of execution (Harris v. Beauchamp, 1894, 1 Q. B. 801; see Manchester Banking Co. v. Parkinson, 22 Q. B. Div. 173). A receiver has been appointed (1) where legal delivery in execution of land was impossible owing to a legal impediment, such as a legal mortgage (Anglo-Italian Bank v. Davies, sup.; Smith v. Cowell, 6 Q. B. Div. 75; Chatterton v. Watney, 17 Ch. Div. 261; Cadogan v. Lyric Theatre, 1894, 3 Ch. 338; see the cases where the legal estate was in trustees; Wells v. Kilpin, 18 Eq. 298; Tillett v. Pearson, 43 L. J. Ch. 93; 22 W. R. 209); (2) of a remainder in real estate (Re Harrison and Bottomley, 1899, 1 Ch. 465; see Re Hamilton, 31 Ch. Div. 294; Cadman v. Cadman, 33 Ch. Div. 400; and compare the cases where a receiver has been appointed of reversionary interests in personalty, Fuggle v. Bland, 11 Q. B. D. 711; Macnicoll v. Parnell, 35 W. R. 773; Tyrrell v. Painton, 1895, 1 Q. B. 202; Flegg v. Prentiss, 1892, 2 Ch. 428; Beamish v. Stephan, 18 L. R. Ir. 319). See further, Kerr. 48 et seq. A receivership order as regards land obtained by a judgment creditor has been held to constitute him a secured creditor in bankruptcy (Ex p. Evans, 13 Ch. Div. 252). See, as regards personal estate, Re Potts, 1893, 1 Q. B. 648; Croshaw v. Lyndhurst Co., 1897, 2 Ch. 154. (k) An order was made under this section for the sale of lands of a railway company (Re Bishop's Waltham R. Co., 14 W. R. 1008); on appeal, the court expressed an opinion that the railway was not saleable, and directed inquiries as to the nature of the company's interest (S. C., 2 Ch. 382). Superfluous lands belonging to a railway company have been ordered to be sold (Re Calne R. Co., 9 Eq. 658; Re Hull and Hornsea R. Co., 2 Eq. 262; Ex p. Grissell, 2 Ch. 385; Re Ogilvie, 7 Ch. 174; Re Hull and Barnsley R. Co., 40 Ch. D. 119). Debenture holders have not under the Railway Cos. Act, 1867, s. 23, a charge on surplus land in priority to creditors selling under the present section (Re Hull and Barnsley R. Co., sup.). As to schemes of arrangement by railway companies and the restraining of actions and executions in such a case, see Railway Cos. Act, 1867; Re Cambrian R. Co. (3 Ch. 278); Re Potteries, &c. R. Co. (5 Ch. 67). The application for a sale should be made by originating summons (R. S. C. Ord. 55, г. 9B). If made by petition, only the costs of a summons will be allowed (Re Harrison and Bottomley, 1899, 1 Ch. 465; Re Martin and Varlow, 43 W. R. 247). Where the land had been delivered in execution the court refused to appoint a receiver until sale (Re Nixon, 1886, W. N. 191). Inquiries were dispensed with where sufficient evidence was adduced at the hearing of the petition (Re Bithray, 61 L. T. 383; 38 W. R. 60; Re Calne R. Co., 9 Eq. 658). For general form of order with inquiries, see Seton, 6th ed. 2062 et seq.; Re Cowper (60 L. T. 95; 37 W. R. 330); Re Holder (1890, W. N. 55); Howson v. Trant (21 W. R. 781). As to inquiries where an official liquidator petitioned for sale of the lands of a contributory, see Re Kirby (14 L. T. 615); and as to inquiries in other cases, see Ex p. Clark (6 N. R. 335). As to service on other judgment creditors, see sect. 5, infra. 5. If it shall appear on making such inquiries that any other debt due on any judgment, statute, or recognizance is a charge on such land, the creditor entitled to the benefit of such charge (whether prior or subsequent to the charge of the petitioner) |