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Vol. XXXI., No. 3. THE SOLICITORS’ JOURNAL. 39 C1‘-5755 REPQRTED THIS’ WEEK J i A QUESTION was raised this week, before Mr. Justice Burr, as to In II/e Solici'tor.s-’ Journal. w111¢"- P°¢° ------------------- -- 44 the interpretation of one_ of the provisions of the Guardianship of D ll l.Iy_v.'Donnc1ly .. . .. _ 4c J ,7 W H R .1 _ Infapts Act i886, which we discussed in our recent articles. Iillafiiiiiiiiii 46 Blaibci»lgv.!:3eck:ft 34 Section 7 prbvides that “in any case where a decree for judicial

Lord Petre. I26. Lord Petre v. Pctre -16
Mills‘ Estate Re . . . . . . . . . . . . . - . . .. 44
M owatt v. Castle Steel and Iron-
works Co. . .. 44
Scarlett, Re ‘ --- 46
The Baramrah Oil Refinery Co.. Re 46
The Medical Attendance Assurance
Association. Re . . . . . . . . . . . . .. 46
The Newport (Monmouth) Blip-
way. &c.. Co. v. Paynter ..... .. 45
The Oxford Building and Invest-

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Coode v. Johns ...... .. East London Waterworks C0. v.
Vestry of St. Matthew, B hnal
Green ................... . .
Ball v. Comfort ..
Hughes v. Little ------ . -
Lu Cy's Trustee v. Peard
Ross v. Army and Navy Hotel Co.
(Limited) ...................... ..
Sailing Ship " Garstmi" Co. v.
Hickie, Barman, & C0. ........ ..

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ment Society, Re .............. .. 46 i 48

Wilson and Green, In‘:-e ........ . .

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The Solicitors’ Journal and ReporterLONDON, NOVEMBER I3, I886.

CURRENT TOPICS.

Mu. Anrnuu KEKEWICH, Q.C., has been appointed a judge of the High Court of Justice in the place of Vice-Chancellor Bacon. The new judge was called to the bar at Lincoln’s-inn in 1858, and for many years had a large junior practice, particularly in connection with the Bank of England. He took silk in 1877, and has recently practised in the court of Mr. Justice KAY.

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We MAKE the above announcement with a regret which we feel sure will be shared by the profession. In spite of our appreciation of the many merits which distinguish the new judge in his private and personal capacity, we are bound to say that neither his rank in the profession nor his attainments or characteristics as a lawyer are such as to mark him out for selection as u judge of the High Court.

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Tan ARRANGEMENTS consequent on the resignation of Vice-Chancellor Bacon and the appointment of the new judge will be as follows :—The chamber work, Chief Clerks, and causes of ViceChancellor Bacon will be transferred to Mr. Justice KAY, and those of Mr. Justice KAY will be taken over by Mr. Justice S'riiu.i.\'e, whose causes will be transferred to Mr. Justice KEKEWICH.

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Ax onnsn to transfer forty actions from Mr. Justice Kn’, thirty from Mr. Justice Cllrrrr, and thirty from Mr. Justice Norm: to Mr. Justice STIRLING, for the purpose only of trial or hearing, was in course of preparation, but the transfer will now be made to Mr. Justice KI-JKEWICII.

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PROBABLY no more dramatic udicial retirement was ever witnessed than that of Vice-Chancellor Bacon, and certainly no scene was ever less sought or prepared for. Though the learned judge had some time before intimated to the Lord Chancellor his desire to retire, the secret was so well kept that we believe neither bench, bar, nor oificers of the court knew anything of the impendmg event until a few hours—-in most cases less than an hour— before it occurred. The Vice-Chancellor’s list appeared the evening before with but one part heard case, but this was ascribed to some engagement rendering it necessary for him to rise early, and it was not until Wednesday morning that the news spread through the Royal Courts that the learned judge was about to take his farewell. The expression of respect and affection which followed was so sudden and absolutely spontaneous that the Attflfney-General, in conveying to the Vice-Chancellor the good wishes of the bar, explained that he had but a moment ago heard that the duty would fall on him. The duty, nevertheless, was jvcll discharged, and no farewell from the bench has been more Impressive than the modest and touching reply of the Vice-Chancellor. We have noticed elsewhere some of those characteristics of the learned judge which have most frequently attracted the attention of that most cynical of all lJ0(ll( s, the bar, but it should be added—if, indeed, after the recent demonstration, it is necessgry to add it—that, even among them, the eager relish for the lice-Chancellor’s “latest” was alwuys mingled with unfeigned Iespect and affection for the vigorous old man, who at long over

@181"? years of age was still a match for the keenest intcllects at the bar.

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separation, or a decree either nisi or absolute for a divorce, shall be pronounced, the court pronouncing such decree may thereby declare the parent by reason of whose misconduct such decree is made to be a person unfit to have the custody of the children (if any) of the marriage ; ” in which case, the parent declared to be unfit is not to be entitled, as of right, to the custody or guardianship of the children upon the death of the other parent. In a suit in which a wife had obtained a decree m'si' for dissolution of marriage on the ground of her husband's adultery and cruelty, the petitioner's counsel applied to the court, while making the decree absolute, to pronounce a declaration, under section 7 of the Act, of the respondent’s unfitness to have the custody of the only child of the marriage. Mr. Justice BU'r'r expressed an opinion that the words “the court pronouncing such decree " referred only to the judge before whom, and the time when, the suit was tried, and that therefore the application was too late. It appeared, however, that the decree niei was pronounced before the passing of the Act, and the case ultimately stood over to enable the petitioner to file aifidavits in support of the motion. Looking to the words “ a decree either nisi or absolute,” it certainly seems difficult to infer that the court is functus oficio before the decree has been made absolute.

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We nrronr elsewhere an important decision of the Court oi ppeal (Re ]l[ills’s Es-late) relating to the extent of the jurisdiction over costs which is given to the court by R. S._C., 1883, LX\,'., 1, which provides that, “subject_to the provisions of_ the Acts and these rules, the costs of, and incident to, all proceedings in the Supreme Court . . . shall be in the discretion of the court or judge.” The corresponding rule 1 of order 55 of the R. S. C., 1875, was to the same effect. The question was whether this rule enables the court to give costs in a case in which, before the Judicature Act, it would have had no jurisdiction to do so, or whether it only regulates the exorcise of the jurisdiction over costs which existed before the Judicature Act. In Er pflrie .-l[erc'er's Co. (27 W. R. 424, 10 Ch. D. 481), Jr-:ssi:L, M.R., adopted the former view, and held that the court had power to order a public body to pay the costs of the petition for the payment out of court of money which had been paid in as the purchase-money of laud taken by the public body under the provisions of a special Act with which the Lands Clauses Act was not incorporated, and which did not provide for the payment of th_ose costs, and that decision has since been followed in many cases in the High Court, though the point had not, before the recent case, been actually

decided by the Court of Appeal. The court held that the true onstruction of ord. 65, r. l, was that it was only intended to egulate the mode in which costs were to be dealt with where the court had, either by Act of Parliament or independently,

power to deal with costs.

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R1-zrnnnrivo LAST WEEK to the expense of obtaining the special licence necessary to enable a Queen’s Counsel to defend a prisoner, we remarked that at the close of the lust century it was about £9, and we asked for information as to the cost at the present day. Ono correspondent tells us that, before the recent change, the cost was a guinea, composed of 10s. 6d. to the Queen's Counsel’s clerk and 10s. 6d. to the official at the Home Office. Another correspondent has furnished information as to the procedure to _be adopted under the new regulations. He states that, since the abolition of the necessity for the (luecn’s signature of the licence, no fee is payable at the Home Oifice. The procedure is as follows :—Prepare a petition to the Secretary of State for the Home Department, on foolscap, setting out_that A. has been committed to take his trial at tlpe ensuing Winter Assizes, to be holden (e.g.) in and for the coun y of Southampton at Winchester, 0!1_ 11 charge °_f f°l°l1Y (°}' “mg; spiracy, &c., &c.), and that he 15' desirous of having the servicefl M1-_ X., Q.C., for the conduct of hisdefence. Pray that a liceurée Big be granted Mr. X., Q.C., accordingly. Take the P€tltl0l13 0

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Tim snocx which Mr. Justice KAY sustained on hearing that, in consequence of a mistake, the sum of £1,000 had been, in pursuance of an order made by him, paid out of court to a person who had no title whatever to it, will afiect many beflldefi the learned judge. The mistake, as described by him in court on the 6th inst., was one of a character which the late Master of the Rolls was so careful to guard against. Sir Gxoiioa JESS]-IL would never be satisfied with a copy of a document, but always called for the original, and it will be in the recollection of many of our readers that on a certain occasion, when sitting in the Court of Appeal, he discovered by means of the probate of a will, that certain words which had been omitted from a copy, taken many years previously, had been omitted from all succeeding copies of that copy, and that, in consequence, an annuity of a large amount had for many years been paid which was not in fact payable. The mistake referred to by Mr. Justice Ksr was of a similar character, and aroso from a copy of a copy being used, in which there was an omission of a few important words. The learnedjudge expressed a desire, and in fact directed, that in future every petition seeking for payment of a fund out of court should contain a verbatim extract, marked with inverted commas, of the clause of the will or settlement under which the parties claim. The effect of the discovery of the mistake was to protract very considerably the business of Mr. Justice K.sY’s court on Siturday, for he carefully examined the evidence, in each case calling for original documents, and going through them critically.

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THE REMARKS we made last week on Lord Justice Fiir’s condemnation of the practice of entering afiidavits in an order as having been read which in fact were never read to the court, received, in some respects, a singular confirmation in the course of an appeal in White v. Peta, heard before a division of the Court of Appeal of which Lord Justice Far was himself a member. The court rejected, almost with contempt, the argument that a judge could not have exercised a judicial discretion in making an order of reference under section 57 of the Judicature Act, 1873, because he did not hear the affidavits read, but acted on the statement of the plaintiffs counsel, which was assented to by the dcfendant’s counsel, that the evidence was conflicting. It was “every-day practice," said Lord Justice Corroiv, “for a judge to ask counsel whether his afiidavits answered the case made by the other side, and if counsel replied that he could not say that they did, it would be wrong for the judge to require the affidavits to be read at length. It would entirely destroy the mode in which business was conducted in the English courts in reliance on the statement of counsel." The question we desire to repeat is, How an order in such a case can be drawn_up without stating as read the evidence on which the order is based, and which Lord Justice Corrou expressly says ought not to be read at length to the court?

THE LORD CIIANCELLOB, in his speech at the Mansion House on Tuesday, dropped a remark obviously intended to allay the not unreasonable apprehensions to which the stress previously laid on the

cheapening of land transfer has given rise. He is reported to have said that ~

“ Any future legislation which enables people to deal with their own in 5113' W85’ Pllfiy may please without undue restriction and without undue expense is calculated _to add our advantages as a. community. I believe that if passed in that spirit legislation is possible and is desirable, but I do not bclieve,_ and I wi.sh_ to stale my //eliif expressly upon tliapoint, that any le_gi_sla.tioii which has for its object to deprive ii man of any right without giving him compensation for what is taken from him is iicitlier desirable nor likely to promote the harmony and the welfare of this great :€—gg2l:)t.iDgII€h(;\1é8£J1;:'ll;‘?£1ti%iSl8t1011 we must proceed upon the lines of

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ON THE FORM OF MORTGAGF. BILLS OF SALE. I.

Tiis vcrv large number of cases that come before the courts where the question in dispute is whether a bill of sale given to secure money is valid or invalid, shcws the profession that there are still some points which are doubtful even to the minds of lawyers in considerable practice. \Vc do not wonder at this being the case, as there cannot, we believe, be found in the whole statute-book such ill-drawn Acts as the Bills of Sale Acts, 1878 and 1882 (41 & 42 Vict. c. 31, -15 & 46 Vict. c. 43). In these articles We shall confine ourselves to the discussion of the foim of bills of sale given as security for money, and when we use the phrase “ bill of sale,” we shall only mean a bill of sale given for that purpose “ by the grantor thereof."

In accordance with the form in the schedule.--The Bills of Sale Act, 1882, provides (section 9) that “ a bill of sale made or given by way of security for the payment of money by the grantor thereof shall be void unless made in accordance with the form in the schedule to this Act annexed.” The meaning of this section was much discussed in Ex parts Slanford, Re Barber (34 W. R. 507, 17 Q. B. D. 2-59), where the judgment of Lord Esher, hI.R., and of Cotton, Lindley, Bowen, and Lopes, L.JJ., states that “ a bill of sale is surely in accordance with the prescribed form if it is substantially in accordance with it-—if it does not depart from the prescribed form in any material respect. But a divergence only becomes substantial or material when it is calculated to give the bill of sale a legal consequence or efiect either greater or smaller than that which would attach to it if drawn in the form which has been sanctioned, or if it departs from the form in a manner calculated to mislead those whom it is the object of the statute to protect. In estimating the effect of a divergence, one must not take into consideration for a moment the provision of section 9, that the bill of sale, if it varies from the form, is to he void; for, owing to this statutory penalty, no material variation can, in the end, have any legal effect at all. To suppose, for example, that a bill of sale can be brought back into harmony with the statutory form by the mere addition of a proviso that all covenants or conditions at variance with the statutory form are to be disregarded, would be absurd. \Ve must take the form, interpreted by the light of the Act, on the one hand, the instrument to be discussed upon the other; and we must then consider whether, but for the avoidance inflicted by section 9 of the statute, the instrument, as drawn, will, in virtue either of addition or omission, have any legal effect which either goes beyond or falls short of that which would result from the statutory form, or whether the instrument, in respect of such variance, would be calculated reasonably to deceive those for whose benefit the statutory form is providod. If so, the variance is material, and the bill of sale is not in substantial accordance with the statutory precedent. Whatever form the bill of sale takes, the form adopted by it, in order to be valid, must produce, not merely the like effect, but the same effcct—that is to say, the legal effect, the whole legal effect, and nothing but the legal efl’ect—which it would produce if cast in the exact mould of the schedule. Such a test as this contains no element of uncertainty, is one which every lawyer throughout the kingdom is competent to apply, and is_based upon a method of interpretation familiar to our courts. This is the construction we are prepared to put upon the section, and we proceed accordingly to inquire on which side of the line the bill of sale before us falls if this test is to be applied.” _ _ __ _

The opmion expressed in some of the earlier cases, e_q., by Brett, M.R., in Mclvzfle v. Stringer (13 Q. B. D., at p. 397), “that bills of sale must be in a form which is sufficiently simple, in the first place, for a borrower of ordinary understanding to know the nature of the security he had given for his debt; and, secondly, fora new proposed creditor to understand at once on searching the register and without taking counsel’s opinion as to the muinin of

- . . ' 5 22,8 Bifillfliiy and the true position of the borrower” can hardly

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ments which, from their nature, cannot possibly be expressed in the prescribed form—for example, a licence to seize personal chattels as security for a debt is a “bill of sale" within the definition contained in the Act of 1878. It is obviously impossible to express it in accordance with the form prescribed by the Act of 1882. It might be thought that, as the law requires no man to do an impossibility, the user of the statutory form might be dispensed with in cases of this nature ; but this view is erroneous, and every such instrument “given by way of security for the payment of money by the grantor thereof” not made in accordance with the statutory form is absolutely void : Ex parts Parsons, Ra Tozlmsmcl (34 W. R. 329, 16 Q. B. D. 582), and par Lopes, L.J., Myers v. Elliott (16 Q. B. D., at p. 530).

On the other hand, a document given to secure money, which is not a bill of sale as defined by the Act of 1878, need not be in the form prescribed by the Act of 1882. This has been decided -first, where the document fell within the exception to the 4th section of the Act of 1878: Re Hall, Ea: parte Olosa (33 W. R. 228, 14 Q. B. D. 386); Re Cumzinqham (33 W. R. 387, 28 Ch. D. 682); see the remarks on these cases in the judgmentin Exparte Parsons (16 Q. B. D. 532); and, secondly, where the transaction was really the pledge of goods, and the document was a contemporaneous instrument signed by the pledgor recording the transaction and stating the rights of the pledges as to selling the goods: Er parie Hubbard, Re Hardwick (W. N., 1886, 153, 80 Souciroas’ Jouinvsr, 690), reversing the decision of the Divisional Court (34 W. R. 790).

Avoiilance in toIo.—A question of some difliculty was decided in Davies v. Rees(34 W. R. 578, 17 Q. B. D. 408). In that case a bill of sale was decided to be void as not being in accordance with the prescribed form ; and the question arose whotheracovenant contained in it for payment of principal and interest was also void. It wns argued that the covenant was not part of the bill of sale properly so called, and that, therefore, it might be good though the bill of sale itself was void. But it was held that, as the prescribed form of bill of sale contained a covenant for payment of principal and interest, such a covenant was an integral part of the bill of sale, and, accordingly, that, as the bill of sale was void, the covenant was void also.

It_has been contended by Mr. White, in a paper read before the Provincial Meeting of the Incorporated Law Society in 1886 (see 30 Soricrross’ Jonaxar, 821), that a mortgage of land containing the common attornment clause is a bill of sale within the Act of 1882 (see the Act of 1878, s. 6), and that therefore the covenant for payment, if not the whole instrument, is void as not being in the prescribed form. This contention is somewhat startling, and we need not say that the strong leaning of the court will be to uphold the instrument as a mortgage of land, declaring the attornment clause alone to be void. It must be remembered that, as pointed out by Bowen, L.J., in Davies v. Rees (17 Q. B. D. at p. 411), “under the apparent form of a single agreement or covenant, written on one piece of paper and signed with one seal, you may have several independent contracts or obligations, and in such a case we must take care that the fall of one of these covenants or obligations does not drag‘ the others with it. When an Act makes one thing void, we must see that we do not destroy independent obligations merely because they are contained in the same piece of paper, or b°¢!il1_Be_ apparently they hang together." A mortgage of land contaming an attornrnent clause consists of two independent cont1Y_i0t8—the mortgage of the land and the mortgage of the chattels !61Z€(l under the power of distress conferred by the attornment. Granting that the latter clause is void, and that, if it stood alone, the covenant for payment would be void with itfthere appears llttle reason to fear that the covenant would not be supported as l>9l11_g part of the common form of a mortgage of land.

Q Since the preceding paragraph was writ_ten Ilnll v. Comfort (31 aouciroiis’ J OURNAL, 29) has been reported. In that case a mort8°84? by demise contained an attornment clause, and the mortgage W“ llllheld; Coleridge, C.J., saying, “The Bills of Sale Acts did not include such an attornment as that in this deed. Certain nllhts were attached by the law to the relation of landlord and telumtr and among them was the right under certain limitationsto Bolze all the property on the demised premises. Such property could notbebrought into a schedule." It will be observed that the ne°e”‘""Y short report of this case renders it doubtlnl whether the "mark! of Coleridge, C.J., were intended to apply solely to the

case where the mortgage was by demise, or whether they would also applyto the case of a mortgage in fee and to the tenancy created by the attornrnent. The full report of this case will be looked for with much interest by the profession.

Oimtemporaneous Instmments.—-It is a general rule of construetion that all instruments relating to the same subject-matter and forming part of the same transaction must be construed together: see E. N. & C. Interp., p. 7. Attempts have been made to evade the Act by executing and registering a bill of sale in the prescribed form and executing a. contemporaneous instrument containing other terms agreed upon between the parties. The bill of sale will, in this case, generally be void for the following reasons—.FYrat, it is void as to the personal chattels comprised in it under section 8 of the Act of 1882 because it does not truly state the consideration, part of which is contained in the unregistered instrument : Simpson v. Char-in Gross Bank (34 W. R. 568); secondly, it is void as to the personal chattels comprised in it under section 8 of the Act of 1882 because part of it is not registered: Ea: parfe Odell, Re Walden (27 W. R. 274, 10 Ch. D. 76), Cochrans v. Matthews (10 Ch. D. 80n), cases decided under the repealed Act of 1854 ; thirdly, it is wholly void under the 9th section of the Act of 1882 because the whole of it is not, though part of it is, in the prescribed form: Lee v. Barnes (24 W. R. 640, 17 Q. B. D. 77), where the bill of sale contained a covenant to perform the covenant containedin arecited indenture ; fourthly, it may be void as to the personal chattels comprised in it because it is subject “to a defeasance, condition, or declaration of trust not written on the same paper or parchment,” so that the registration is void under section 10, sub-section 3, of the Act of 1878: see the cases collected in Ea: parts Popplewell, Rs Storey (21 Ch. D. 73).

Cases like Ea: parts National Mercantile Bank, Re Haynes (16 Ch. D. 42) where it was held that an agreement as to the application of the money advanced on the security of a bill of sale_ under the Act of 1878 need not be set forth, cannot safely be relied on as authorities for the construction of the Act of 1882.

Another plan has been devised for attempting to evade the Act —namely, by a sale to the lender and a demise back to the borrower, as in North Central Wagon Co. v. Manchester, Shefield, rmd Lincolnshire Railway Co. (34 W. R. 430, 32 Ch. D. 477), but in this case the transaction is invalid for all the reasons stated above, if any part of it is carried out by a writing. If no writing is employed the transaction would not fall within the Act, and its validity would depend upon other considerations that do not fall within the scope of these articles.

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Tm: law remained unaltered down to the present reign, when the statute 1 & 2 Vict. c. 110 was passed “for extending the remedies of creditors against the property of debtors.” The first report of the Real Property Commissioners of 1829 (p. 59) had expressed their opinion that “ the law appears very objectionable, whether regard be had to the complicated and dilatory relief afiorded by eleyit, or to the continuing effect of dormant judgments, which render the land often in effect unsaleable, and add to the expense and risk of every transfer”; and the witnesses examined by the commissioners complained that the law was obscure and unsatisfactory; that it imposed upon solicitors a liability which it was often impracticable for them to discharge; and that the searches involved so much expense and trouble as to be extremely onerous, and yet failed to ensure the security of purchasers (lst Rep. Appx., pp. 159, 445, 447, 454, 628, 630). _ _ Leynl execution under 1 §<- 2 V wt. c. 11_O, s. 11._—By this section the creditor, under a judgment recovered in an action m any of the superior courts at Westminster, is enabled to obtain delivery m execution under an ele it of the whole of the debtor’s interest, instead of, as under the old law, u moiety only; and of 1811118 of copyhold or customary freehold tenure as well 88 ffeelloldi and leaseholds. This provision applies to all “lands, tenements, rectories, tithes, and hereditaments of which the debtor, or any pimyfl in trust for him, is ‘ seised or possessed (these words do no in

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elude a remainder: 9 Ch. 373) at the time of eniermy up the

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judgment, or at any time afterwards, or over which the debtor has any disposing power which he might, without the assent of any other person, exercise for his own benefit.” _

The operation of an appointment in overreachmg judgments entered up against the appointor since the creation of the power (ante, p. 4) is thus at an end, for the judgment is in effect an execution of the power pro tanto in favour of the creditor; but (Sugd. Gonc. V. 392) this is subject to the protection _given by 2 & 3 Viot. c. 11, s. 5 (post), to purchasers without notice. The disposing power referred to in this section includes the power_ of a joint tenant to sever the joint tenancy; but it has been questioned whether it includes the power of a tenant in tail to bar issue and remaindermen; and the opinion of Lord St. Leonards was that it does not, though section 13 does : Sugd. V. & P., 14th ed , 526.

Under this section (ll) lands are bound as against the debtor from the entering up of the judgment; but it must be read in connection with section 19 ( post), by virtue of which they are bound as against purchasers only from the date of registration of the judgment. The section enabled legal execution by elegit to be enforced against terms of years, and (under section 19) they became bound as against purchasers from registration of the judgment, whereas under the old law (ante, p. 4) they were not affected until delivery of the writ of executiouto the sheriff ; but the effect of 2 & 3 Vict. c. 11, s. 5 (post), is that, as against purchasers without notice, the old law remained in force ( Westbrook v. Blythe, 3 E. & B. 737). And it may be noted here that if the term “goods " in 19 8: 20 Vict. c. 97, s. 1, were held to include chattels real (as the same term in the Statute of Frauds, s. 16, was held to include them) terms of years were not bound after 19 & 20 Vict. until actual seizure. There seems to be no ground for excluding equitable interests in terms of years from the operation of 1 & 2 Vict. c. 110, s. 11, though it has been contended (see ante, p. 4) that they were not within the 10th section of the Statute of Frauds. Under 1 & 2 Vict. c. 110, as under the old law (ante, p. 4), lands of which the debtor is equitable owner can be delivered in legal execution only where there is a simple trust for him, and he has the whole beneficial interest (.Digb_i/ v. Irvine, 6 Ir. Eq. R. 149). It should be observed that the statute binds equitable interests as from entry of judgment, or as against purchasers from registration, instead of as under the old law (ante, p. 4) from execution issued.

Charge in Equity under 1 if 2 Viol. c. ll0, s. 13.—By this section a judgment entered up in the superior courts at Westminster is to operate as a charge upon all lands, &c., belonging to thc debtor at the time of entering up (as against purchasers section 19 substitutes the time of registration of) the judgment, or at any time afterwards “ for any estate or interest whatever, at law or in equity, whether in possession, reversion, or expectancy,” or over which he has a general disposing power (described as in section 11); and it is to hind all persons claiming under him after such judgment, and also the issue of his body, and all other persons whom he might bar without the assent of any other person. The creditor is to have the same remedies in 0. court of equity as he would have had if the debtor had, by writing under his hand, agreed to charge the hereditaments with the amount of the judgment debt and interest; but such charge is not to be enforced in equity until the expiration of one year from entry of judgment. The section concludes with a proviso that nothing therein contained shall alter or afiect any doctrine of equity protecting purchasers for value without notice. There is thus protection to purchasers without notice so far as regards the additional remedies given by section 13; but section 11 gave no such protection, and they therefore remained liable to execution by eZe_i/it (see post, 2 & 3 Vict. c. 11; Sugd. Cone. V. 387).

The words of section 13 are wider and more general than those of section 11, and include many estates and interests which are not within that section (8 Eq. 705). And while equitable executions under the old law only gave a right to takc possession and receive the rents and profits (see ante, p. 24), the section now under consideration gave a new right to the creditor, enabling him to obtain satisfaction out of the corpus of the property, and for that purpose to realize it by a suit in equity (Pratt v. Ball, ll W. }{_ 82, 295, 4 Gui. 117).

_ It remained open to the creditor, in cases where there was any impediment _to legal execution _under section ll, to filo a bill (without waiting for the expiration of the year to entitle him to

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his new remedy under section 13) claiming relief_ under the old jurisdiction in equity, whereby he could obtain receipt of th_e rents and profits (see ante, p. 24; 1 Coote Mort. 66); but for this purpose it would formerly. as we have seen, have been necessary to issue a writ of eleyit (though not so in a proce_edmg_under section

13: 1 Coote Mort. 66). By a series of decisions_sin_ce the Judicature Acts it has been settled that this formality is_no longer necessary, and also that a new action need not be instituted. f°l' the court can appoint a receiver in the original action aftei'_ judgment (Smith v, Cawell, 6 Q. B. D. 75), although the plaintiff has not expressly claimed a receiver by his statement of claim (Salt v. Cooper, 16 Ch. D. 544). _

Section 13 is discussed in Harris v. Daviaon (15 Sim. 133); Beavrm v. Earl of 0.1:/‘onl (6 De G. M. & G. 521, 530); Whilworth v. Gnu;/az'n (1 Ph., at p. 734; foll., 3 Ha., at p. 429): see Sugd. Conc. V. 386; Eyre v. .Zl[‘DoweIl (9 H. L. C. 642, 651). From these authorities it appears that its effect is not only to make a judgment attach upon property which formerly was not bound by it, but also to give it the effect of an express charge; it becomes a specific incumbrance, an equitable estate (Rolleston v. lllortan, 1 Dr. & War. 195). But “although it may affect a greater extent of property belonging to the debtor, there is nothmg to vary the equities to which the property may be liable. The whole beneficial interest which the debtor may have in the property is bound, not the beneficial interest which a stranger may have_in it ” (1 Pb. 735)—i.e., the rule (discussed above, p. 4) still obtains that the creditor can take only that which really belongs to his debtor. The result is that the creditor is not to be put to the same inconvenient and circuitous mode of making his judgment available to which he was driven before the statute; but the words as to the charge, when coupled with the prior part of the section, refer only to land of which the debtor has an absolute power of disposing as he thinks fit for his own benefit (6 De G. M. & G. 521, 530; see and consider the judgment of Erle, J., in Watts v. Porter, 3 E. & B. 7-13, 758; approved in Beacmi v. Earl of Oxford, 6 De G. lll. & G. 492, 507).

Wliat are juzlgmeiits ?—-—By 1 & 2 Vict. c. 110, s. 18, all “decrees and orders of courts of equity,” and all rules of “ courts of common law,” and orders in bankruptcy and lunacy “whereby any sum of money or any costs, charges, or expenses shall be payable to any person,” are to have the effect of judgments in the superior courts of common law. Before the statute a decree in equity gave no right against the laud (see 3 Prest. Abst. 354 ; Lee v. Green, 4 \V. R. 270, 6 De G. M. 6: G., at p. 168; Norlclifle v. Warbiirtoiz, 10 W. R. 635; 1 Dan. Ch. Pr., 6th ed., 925). As to what are decrees, &c., within this section, see Dart, 466; Shelf. R. P. Stat. 590; Seton, 1142, ll-I3. “The principle of the decisions,” said Kindersley, V.C. (Garner v. .Bri:q_7s, 27 L. J. Ch. 483), “subject to exceptional cases with respect to judgments at law, is this:—To constitute a judgment debt, the judgment must not be interlocutory, but final, for the payment of ii specific sum of money, upon which there is nothing left to be done except to compute interest, and the party must also have an actual right to receive the money.” Since the Judicature Acts the judgments and orders of all divisions of the High Court (which includes the Bankruptcy Jurisdiction: Bankruptcy Act. 1883, s. 95) must be taken to be on the same footing; and in the Judicature hot, 1873, s. 100, “judgment” includes decree, and “order” includes rule._ J udgmcnts of paliitine and county courts, and Scotch and Irish udgments will be dealt with hereafter.

_ Observe that the decrees, orders, and rules spoken of in this section are those of “ courts of equity ” and “ courts of common law ” generally, and not merely those of the High Court of Chancery and the superior courts at Westminster.

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