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PHELPS, CHARLES, Cardiff, Fruiterer, Nov 12 at 12. Of Rec, 3, Crockherbtown, PRICE, JOSHUA CHARLES, Cardiff, Grocer. Cardiff. Pet Oct 26. Ord Oct 30
PULMAN, LEWIS, Halifax, Grooer. Halifax. Pet Oct 27. Ord Oct 27
CASEY, JOHN, Warwick, Licensed Victualler. Warwick. Pet Oct 26. Ord
lation Company, 115, Victoria-street, Westmirster. Prospectus free.-[ADVT.
CLEAVER, CHARLES GEORGE, Tanner st, Bermondsey, Leather Merchant. High 1, 2, or 3 years; 60 wholesale firms. Offices, 79, Queen Victoria-street, E.0.
Branches at 121, Pall Mall, S.W., and 9. Liverpool-street, E.C.-[ADVT.
CASES REPORTED THIS WEEK. In the Solicitors' Journal. White v. Peto Donnelly v. Donnelly
46 Janes Hickie (Deceased), Re, Hickie
In the Weekly Reporter. v. Colmer
46 Blaiberg v. Beckett Lord Petre, Fe, Lord Petre v. Petre 46 Coode v. Johns Mills' Estate, Re...
East London Waterworks Co. v. Mowatt v. Castle Steel and Iron
Vestry of St. Matthew, Bethnal works Co.
46 Hall v. Comfort
46 Ross v. Army and Navy Hotel Co. The Newport (Monmouth) Slip
(Limited) way, &c., Co. v. Paynter
45 Sailing Ship“ Garston” Co. V. The Oxford Building and Invest
Hickie, Borman, & Co. ment Society, Re
Wilson and Green, In re
A QUESTION was raised this week, before Mr. Justice Butt, as to 44 the interpretation of one of the provisions of the Guardianship of
Infants Act, 1886, which we discussed in our recent articles.
Section 7 provides that “in any case where a decree for judicial 47 separation, or a decree either nisi or absolute for a divorce, shall be
pronounced, the court pronouncing such decree may thereby 37 declare the parent by reason of whose misconduct such decree is 36 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 40 unfit is not to be entitled, as of right, to the custody or guardian
ship of the children upon the death of the other parent. In a suit 43 in which a wife had obtained a decree nisi for dissolution of
marriage on the ground of her husband's adultery and cruelty, the The Solicitors' Journal and Reporter. Lecree absolute, to pronounce a declaration, under section 7 of the LONDON, NOVEMBER 13, 1886.
Act, of the respondent's unfitness to have the custody of the only
child of the marriage. Mr. Justice BUTT expressed an opinion that CURRENT TOPICS.
the words “the court pronouncing such decree" referred only to
the judge before whom, and the time when, the suit was tried, and MR. ARTHUR KEKEWICH, Q.C., has been appointed a judge of that therefore the application was too late. It appeared, however, the High Court of Justice in the place of Vice-Chancellor Bacon. that the decree niri was pronounced before the passing of the Act, The new judge was called to the bar at Lincoln's-inn in 1858, and and the case ultimately stood over to enable the petitioner to file for many years had a large junior practice, particularly in connec- affidavits in support of the motion. Looking to the words “ tion with the Bank of England. He took silk in 1877, and has / decree either nisi or absolute,” it certainly seems difficult to infer recently practised in the court of Mr. Justice KAY.
that the court is functus officio before the decree has been made
absolute. 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
WE REPORT elsewhere an important decision of the Court of
are bound to say that neither his rank in the profession nor his attainments or charac- tion over costs which is given to the court by R. S. C., 1883,
Appeal (Re Mills's Estate) relating to the extent of the jurisdicteristics as a lawyer are such as to mark him out for selection LXV., 1, which provides “subject to the provisions of the as a judge of the High Court.
Acts and these rules, the costs of, and incident to, all proceedings in the Supreme Court
shall be in the discretion of the THE ARRANGEMENTS consequent on the resignation of Vice-Chan- court or judge.” The corresponding rule 1 of order 55 of the cellor Bacon and the appointment of the new judge will be as R. S. C., 1875, was to the same effect. The question was whether follows :—The chamber work, Chief Clerks, and causes of Vice- this rule enables the court to give costs in a case in which, before Chancellor Bacon will be transferred to Mr. Justice Kay, and those the Judicature Act, it would have had no jurisdiction to do so, of Mr. Justice Kay will be taken over by Mr. Justice STIRLING, whether it only regulates the exercise of the jurisdiction over costs whose causes will be transferred to Mr. Justice KEKEWICH. which existed before the Judicature Act. In Ex parte Mercer's Co.
(27 W. R. 424, 10 Ch. D. 481), JESSEL, M.R., adopted the former AN ORDER to transfer forty actions from Mr. Justice Kay, thirty view, and held that the court had power to order a public body to from Mr. Justice CHirty, and thirty from Mr. Justice North to pay the costs of the petition for the payment out of court of Mr. Justice Stirling, for the purpose only of trial or hearing, was money which had been paid in as the purchase-money of land in course of preparation, but the transfer will now be made to Mr. taken by the public body under the provisions of a special Act Justice KEKEWICH.
with which the Lands Clauses Act was not incorporated, and
which did not provide for the payment of those costs, and that PROBABLY NO more dramatic judicial retirement was
decision has since been followed in many cases in the High Court, witnessed than that of Vice-Chancellor Bacon, and certainly no though the point had not, before the recent case, been actually scene was ever less sought or prepared for. Though the learned decided by the Court of Appeal. The court held that the true judge had some time before intimated to the Lord Chancellor his construction of ord. 65, r. 1, was that it was only intended to desire to retire, the secret was so well kept that we believe neither regulate the mode in which costs were to be dealt with where bench, bar, nor officers of the court knew anything of the impend- the court had, either by Act of Parliament or independently, ing event until a few hours-in most cases less than an hour power to deal with costs. 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
REFERRING LAST WEEK to the expense of obtaining the special the Royal Courts that the learned judge was about to take his licence necessary to enable a Queen's Counsel to defend a prisoner, farewell. The expression of respect and affection which fol.
we remarked that at the close of the last century it was about £9, lowed was so sudden and absolutely spontaneous that the At- and we asked for information as to the cost at the present day. torney-General, in conveying to the Vice-Chancellor the good One correspondent tells us that, before the recent change, the cost wishes of the bar, explained that he had but a moment ago heard was a guinea, composed of 10s. 6d. to the Queen's Counsel's clerk that the duty would fall on him. The duty, nevertheless, was and 108. 6d. to the official at the Home Office. Another corresponwell discharged, and no farewell from the bench has been more dent has furnished information as to the procedure to be adopted impressive than the modest and touching reply of the Vice-Chan- under the new regulations. He states that, since the abolition of the cellor. We have noticed elsewhere some of those characteristics of necessity for the Queen's signature of the licence, no fee is payable the learned judge which have most frequently attracted the at the Home Office. The procedure is as follows :—Prepare a petition attention of that most cynical of all bodies, the bar, but it should to the Secretary of State for the Home Department, on foolscap, be added—if, indeed, after the recent demonstration, it is neces- setting out thať A. B. has been committed to take his trial at the sary to add it—that, even among them, the eager relish for the ensuing Winter Assizes, to be holden (e.g.) in and for the county Vice-Chancellor's "latest” was always mingled with unfeigned of Southampton at Winchester, on a charge of felony (or con: respect and affection for the vigorous old man, who at long over spiracy, &c., &c.), and that he is desirous of having the services of eighty years of age was still a match for the keenest intellects Nr. X.; Q.C., for the conduct of his defence. Pray that a licence may at the bar.
be granted Mr. X., Q.C., accordingly. Take the petition to the
handed to you.
Solicitor for the Treasury, and he will (unless he has retained Mr.
ON THE FORM OF MORTGAGE BILLS OF SALE. X.) mark upon it that he has no objection to the licence issuing.
I. Then take the petition thus marked to Room 54 at the Home Office, and ask for the licence, which will be at once made out and The very 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, shews the profession that there THE SHOCK which Mr. Justice Kay sustained on hearing that, are still some points which are doubtful even to the minds of in consequence of a mistake, the sum of £1,000 had been, in pur- lawyers in considerable practice. We do not wonder at this being suance of an order made by him, paid out of court to a per- the case, as there cannot, we believe, be found in the whole son who had no title whatever to it, will affect many besides statute-book such ill-drawn Acts as the Bills of Sale Acts, 1878 and the learned judge. The mistake, as described by him 'in court 1882 (41 & 42 Vict. c. 31, 45 & 46 Vict. c. 43). In these articles on the 6th inst., was one of a character which the late Master of we shall confine ourselves to the discussion of the form of bills of the Rolls was so careful to guard against. Sir George Jessel sale given as security for money, and when we use the phrase would never be satisfied with a copy of a document, but always
“ bill of sale,” we shall only mean a bill of sale given for that called for the original, and it will be in the recollection of many purpose“ by the grantor thereof." of our readers that on a certain occasion, when sitting in the Court
In accordance with the form in the schedule.—The Bills of Sale of Appeal, he discovered by means of the probate of a will, that Act, 1882, provides (section 9) that “a bill of sale made or given certain words which had been omitted from a copy, taken many by way of security for the payment of money by the grantor years previously, had been omitted from all succeeding copies of thereof shall be void unless made in accordance with the that copy, and that, in consequence, an annuity of a large amount form in the schedule to this Act annexed.” The meaning had for many years been paid which was not in fact payable. The of this section was much discussed in Ex parte Stanford, Re mistake referred to by Mr. Justice Kay was of a similar character, Barber (34 W. R. 507, 17 Q. B. D. 259), where the judgment of and arose from a copy of a copy being used, in which there was
Lord Esher, M.R., and of Cotton, Lindley, Bowen, and Lopes, an omission of a few important words. The learned judge expressed L.JJ., states that "a bill of sale is surely in accordance with the a desire, and in fact directed, that in future every petition seeking prescribed form if it is substantially in accordance with it—if it for payment of a fund out of court should contain a verbatim does not depart from the prescribed form in any material respect. extract, marked with inverted commas, of the clause of the will or But a divergence only becomes substantial or material when it is settlement under which the parties claim. The effect of the dis- calculated to give the bill of sale a legal consequence or effect covery of the mistake was to protract very considerably the busi- either greater or smaller than that which would attach to it if ness of Mr. Justice Kay's court on Saturday, for he carefully drawn in the form which has been sanctioned, or if it departs from examined the evidence, in each case calling for original documents, the form in a manner calculated to mislead those whom it is the and going through them critically.
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 THE REMARKS We made last week on Lord Justice Fry's condemna- form, is to be void ; for, owing to this statutory penalty, no matetion of the practice of entering affidavits in an order as having been rial variation can, in the end, have any legal effect at all. To read which in fact were never read to the court, received, in some re
suppose, for example, that a bill of sale can be brought back into spects, a singular confirmation in the course of an appeal'in Whitev: harmony, with the statutory form by the mere addition of a Peto, heard before a division of the Court of Appeal of which Lord proviso that all covenants or conditions at variance with the
We must Justice Fey was himself a member. The court rejected, almost statutory form are to be disregarded, would be absurd. with contempt, the argument that a judge could not have exercised take the form, interpreted by the light of the Act, on the one a judicial discretion in making an order of reference under section hand, the instrument to be discussed upon the other; and we 57 of the Judicature Act, 1873, because he did not hear the section 9 of the statute, the instrument, as drawn, will, in virtue
must then consider whether, but for the avoidance inflicted by affidavits read, but acted on the statement of the plaintiff's counsel, either of addition or omission, have any legal effect which either which was assented to by the defendant's counsel, that the evidence goes beyond or falls short of that which would result from the was conflicting. It was every-day practice,” said Lord Justice Corron, " for a judge to ask counsel whether his affidavits variance, would be calculated reasonably to deceive those for whose
statutory form, or whether the instrument, in respect of such answered the case made by the other side, and if counsel replied benefit the statutory form is providod. If so, the variance is that he could not say that they did, it would be wrong for the material, and the bilî of sale is not in substantial accordance with entirely destroy the mode in which business was conducted in the the form adopted by it, in order to be valid, must produce, not judge to require the affidavits to be read at length. It would the statutory precedent. Whatever form the bill of sale takes, English courts in reliance on the statement of counsel.” The merely the like effect,' but the same effect—that is to say, the question we desire to repeat is, How an order in such a case can be legal effect, the whole legal effect, and nothing but the legal drawn up without stating as read the evidence on which the effect-which it would produce if cast in the exact mould of the order is based, and which Lord Justice Cotton expressly says schedule. Such a test as this contains no element of uncertainty, ought not to be read length to the court ?
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 LORD CHANCELLOR, in his speech at the Mansion House on the section, and we proceed accordingly to inquire on which side Tuesday, dropped a remark obviously intended to allay the not un- of the line the bill of sale before us falls if this test is to be reasonable apprehensions to which the stress previously laid on the applied." cheapening of land transfer has given rise. He is reported to have The opinion expressed in some of the earlier cases, eg., by said that
Brett, M.R., in Melville v. Stringer (13 Q. B. D., at p. 397), " that Any future legislation which enables people to deal with their own in bills of sale must be in a form which is sufficiently simple, in the any way they may please without uudue restriction and without undue first place, for a borrower of ordinary understanding to know the expense is calculated to add to our advantages as a community.,,I nature of the security he had given for his debt; and, secondly, believe that if passed in that spirit legislation is possible and is desirable, for a new proposed creditor to understand at once on searching the that any legislation which has for its object to deprive a man of any right register and without taking counsel's opinion as to the meaning of without giving him compensation for what is taken from him is neither the security and the true position of the borrower" can hardly desirable nor likely to promote the harmony and the welfare of this great now be considered to be correct, the true question being, “Is empire. In our future legislation we must proceed upon the lines of the bill of sale substantially in accordance with the prescribed respecting the rights of all.”
form ?" These words will be remembered by the profession when the time comes for discussing the promised scheme for facilitating and sion “ bill of sale” as defined in the Bills of Sale Act, 1878,
What instruments must be in the prescribed form.—The exprescheapening land transfer.
which is incorporated in the Act of 1882, includes some instru
ments which, from their nature, cannot possibly be expressed in case where the mortgage was by demise, or whether they would the prescribed form--for example, a licence to seize personal also apply to the case of a mortgage in fee and to the tenancy chattels as security for a debt is a “bill of sale” within the created by the attornment. The full report of this case will be definition contained in the Act of 1878. It is obviously impossible looked for with much interest by the profession. to express it in accordance with the form prescribed by the Act Contemporaneous Instruments. It is a general rule of construc of 1882. It might be thought that, as the law requires no man to tion that all instruments relating to the same subject-matter and do an impossibility, the user of the statutory form might be forming part of the same transaction must be construed together : dispensed with in cases of this nature ; but this view is erroneous, see E. N. C. Interp., p. 7. Attempts have been made to evade and every such instrument "given by way of security for the the Act by executing and registering a bill of sale in the prescribed payment of money by the grantor thereof " not made in accord form and executing , contemporaneous instrument containing other ance with the statutory form is absolutely void : Ex parte Parsons, terms agreed upon between the parties. The bill of sale will, in Re Townsend (34 W. R. 329, 16 Q. B. D. 532), and per Lopes, this case, generally be void for the following reasons - First, it L.J., Myers v. Elliott (16 Q. B. D., at p. 530).
is void as to the personal chattels comprised in it under section 8 On the other hand, a document given to secure money, which is of the Act of 1882 because it does not truly state the consideration, not a bill of sale as defined by the Act of 1878, need not be in the part of which is contained in the unregistered instrument : Simpson form prescribed by the Act of 1882. This has been decided 7. Charing Cross Bank (34 W. R. 568); secondly, it is void as to the
- first, where the document fell within the exception to the personal chattels comprised in it under section 8 of the Act of 1882 4th section of the Act of 1878: Re Hall, Ex parte Close because part of it is not registered: Ex parte Odell, Re Walden (33 W. R. 228, 14 Q. B. D. 386); Re Cunningham (33 (27 W. R. 274, 10 Ch. D. 76), Cochrane v. Matthews (10 Ch. W. R. 387, 28 Ch. D. 682); see the remarks on these cases D. 80n), cases decided under the repealed Act of 1854; thirdly, it in the judgment in Ex parte Parsons (16 Q. B. D. 532); and, is wholly void under the 9th section of the Act of 1882 because secondly, where the transaction was really the pledge of goods, the whole of it is not, though part of it is, in the prescribed and the document was a contemporaneous instrument signed by the form: Lee v. Barnes (24 W. R. 640, 17 Q. B. D. 77), pledgor recording the transaction and stating the rights of the where the bill of sale contained a covenant to perform the covenpledgee as to selling the goods: Ex parte Hubbard, Re Hardwick ant contained in a recited indenture ; fourthly, it may be void as to (W. N., 1886, 153, 30 SOLICITORS JOURNAL, 690), reversing the the personal chattels comprised in it because it is subject “ to a decision of the Divisional Court (34 W. R. 790).
defeasance, condition, or declaration of trust not written on the same Avoidance in toto.-A question of some difficulty was decided in paper or parchment," so that the registration is void under section Davies v. Rees (34 W. R. 573, 17 Q. B. D. 408). In that case a bill 10, sub-section 3, of the Act of 1878: see the cases collected in of sale was decided to be void as not being in accordance with the Ex parte Popplewell, Re Storey (21 Ch. D. 73). prescribed form; and the question arose whether a covenant contained Cases like Ex parte National Mercantile Bank, Re Haynes (15 in it for payment of principal and interest was also void. It was Ch. D. 42) where it was held that an agreement as to the applicaargued that the covenant was not part of the bill of sale properly tion of the money advanced on the security of a bill of sale under so called, and that, therefore, it might be good though the bill of the Act of 1878 need not be set forth, cannot safely be relied on sale itself was void. But it was held that, as the prescribed form as authorities for the construction of the Act of 1882. of bill of sale contained a covenant for payment of principal and Another plan has been devised for attempting to evade the Act interest, such a covenant was an integral part of the bill of sale, -namely, by a sale to the lender and å dem.ise back to the and, accordingly, that, as the bill of sale was void, the covenant borrower, as in North Central Wagon Co. v. Manchester, Sheffield, was void also.
and Lincolnshire Railway Co. (34 W. R. 430, 32 Ch. D. 477), but It has been contended by Mr. White, in a paper read before the in this case the transaction is invalid for all the reasons stated Provincial Meeting of the Incorporated Law Society in 1886 (see 30 above, if any part of it is carried out by a writing. If no writing SOLICITORS' JOURNAL, 821), that a mortgage of land containing the is employed the transaction would not fall within the Act, and common attornment clause is a bill of sale within the Act of 1882 (see its validity would depend upon other considerations that do not fall the Act of 1878, s. 6), and that therefore the covenant for payment, within the scope of these articles. 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
CONCERNING SEARCHES. to be void. It must be remembered that, as pointed out by
(XIV.) JUDGMENTS. Bowen, L.J., in Davies v. Rees (17 Q. B. D. at p. 411), “ under the apparent form of
II. THE MODERN LAW OF JUDGMENTS. single agreement or covenant, written on one piece of paper and signed with one seal, you may have several The law remained unaltered down to the present reign, when the independent contracts or obligations, and in such a case we must statute 1 & 2 Vict. c. 110 was passed " for extending the remedies take care that the fall of one of these covenants or obligations of creditors against the property of debtors." The first report of does not drag the others with it. When an Act makes one thing the Real Property Commissioners of 1829 (p. 59) had expressed void, we must see that we do not destroy independent obligations their opinion that the law appears very objectionable, whether merely because they are contained in the same piece of paper, or regard be had to the complicated and dilatory relief afforded by because apparently they hang together.” A mortgage of land elegit, or to the continuing effect of dormant judgments, which containing an attornment clause consists of two independent con- render the land often in effect unsaleable, and add to the expense tracts—the mortgage of the land and the mortgage of the chattels and risk of every transfer"; and the witnesses examined by the seized under the power of distress conferred by the attornment. commissioners complained that the law was obscure and unsatisGranting that the latter clause is void, and that, if it stood alone, factory; that it imposed upon eolicitors a liability which it was the covenant for payment would be void with it, there appears often impracticable for them to discharge ; and that the searches little reason to fear that the covenant would not be supported as involved so much expense and trouble as to be extremely onerous, being part of the common form of a mortgage of land.
and yet failed to ensure the security of purchasers (1st Rep. Appx., Since the preceding paragraph was written Hall v. Comfort (31 pp. 159, 445, 447, 454, 628, 630). SOLICITORS' JOURNAL, 29) has been reported. In that case a mort Legal execution under 1 8. 2 Vict. c. 110, s. 11.—By this section gage by demise contained an attornment clause, and the mortgage the creditor, under a judgment recovered in an action in any of the was upheld ; Coleridge, C.J., saying, “The Bills of Sale Acts did superior courts at Westminster, is enabled to obtain delivery in not include such an attornment as that in this deed. Certain execution under an elegit of the whole of the debtor's interest, rights were attached by the law to the relation of landlord and instead of, as under the old law, a moiety only; and of lands tenant, and among them was the right under certain limitations to of copyhold or customary freehold tenure as well as freeholds and could not be brought into a schedule.” It will be observed that the tories, tithes, and hereditaments of which the debtor, or any person necessary short report of this case renders it doubtful whether the in trust for him, is seised or possessed" (these words do not inremarks of Coleridge, C.J., were intended to apply solely to the clude a remainder : 9 Ch. 373) at the time of entering up the
judgment, or at any time afterwards, or over which the debtor has his new remedy under section 13) claiming relief under the old any disposing power which he might, without the assent of any jurisdiction in equity, whereby he could obtain receipt of the rents other person, exercise for his own benefit.”
and profits (see ante, p. 24; 1 Coote Mort. 66); but for this purThe operation of an appointment in overreaching judgments pose it would formerly, as we have seen, have been necessary to entered up against the appointor since the creation of the power issue a writ of elegit (though not so in a proceeding under section (ante, p. 4) is thus at an end, for the judgment is in effect an 13: 1 Coote Mort. 66). By a series of decisions since the Judiexecution of the power pro tanto in favour of the creditor; but cature Acts it has been settled that this formality is no longer (Sugd. Conc. V. 392) this is subject to the protection given by necessary, and also that a new action need not be instituted, for 2 & 3 Vict. c. 11, s. 5 (post), to purchasers without notice. The the court can appoint a receiver in the original action after judgdisposing power referred to in this section includes the power of a ment (Smith v. Cowell, 6 Q. B. D. 75), although the plaintiff has joint tenant to sever the joint tenancy; but it has been questioned not expressly claimed a receiver by his statement of claim (Salt v. whether it includes the power of a tenant in tail to bar issue and Cooper, 16 Ch. D. 544). remaindermen; and the opinion of Lord St. Leonards was that it Section 13 is discussed in Harris v. Davison (15 Sim. 133); does not, though section 13 does : Sugd. V. & P., 14th ed, 526. Beavan v. Earl of Oxford (6 De G. M. & G. 521, 530); Whit
Under this section (11) lands are bound as against the debtor worth v. Gaugain (1 Ph., at p. 734 ; foll., 3 Ha., at p. 429): see from the entering up of the judgment; but it must be read in Sugd. Conc. V. 386; Eyre v. M'Dowell (9 H. L. C. 642, 651). connection with section 19 (post), by virtue of which they are From these authorities it appears that its effect is not only to make bound as against purchasers only from the date of registration of a judgment attach upon property which formerly was not bound the judgment. The section enabled legal execution by elegit to bý it, but also to give it the effect of an express charge ; it bebe enforced against terms of years, and (under section 19) they comes a specific incumbrance, an equitable estate (Rolleston v. became bound as against purchasers from registration of the judg- Morton, 1 Dr. & War. 195). But “ although it may affect a ment, whereas under the old law (ante, p. 4) they were not affected greater extent of property belonging to the debtor, there is nothing until delivery of the writ of execution to the sheriff ; but the effect to vary the equities to which the property may be liable. The of 2 & 3 Vict. c. 11, s. 5 (post), is that, as against purchaser s whole beneficial interest which the debtor may have in the property without notice, the old law remained in force (Westbrook v. Blythe, is bound, not the beneficial interest which a stranger may have in 3 E. & B. 737). And it may be noted here that if the term it” (1 Ph. 735)—i.e., the rule (discussed above, p. 4) still obtains "goods" in 19 & 20 Vict. c. 97, s. 1, were held to include chattels that the creditor can take only that which really belongs to his real (as the same term in the Statute of Frauds, s. 16, was held to debtor. The result is that the creditor is not to be put to the include them) terms of years were not bound after 19 & 20 Vict. same inconvenient and circuitous mode of making his judgment until actual seizure. There seems to be no ground for excluding available to which he was driven before the statute ; but the words equitable interests in terms of years from the operation of 1 & 2 as to the charge, when coupled with the prior part of the section, Vict. c. 110, s. 11, though it has been contended (see ante, p. 4) refer only to land of which the debtor has an absolute power of that they were not within the 10th section of the Statute of disposing as he thinks fit for his own benefit (6 De G. M. & G. Frauds. Under 1 & 2 Vict. c. 110, as under the old law (ante, 527, 530; see and consider the judgment of Erle, J., in Watts v. p. 4), lands of which the debtor is equitable owner can be delivered Porter, 3 E. & B. 743, 758 ; approved in Beavan v. Earl of in legal execution only where there is a simple trust for him, and Oxford, 6 De G. M. & G. 492, 507). he has the whole beneficial interest (Digby v. Irvine, 6 Ir. Eq. What are judgments ?-By 1 & 2 Vict. c. 110, s. 18, all R. 149). It should be observed that the statute binds equitable “decrees and orders of courts of equity," and all rules of "courts interests as from entry of judgment, or as against purchasers from of common law,” and orders in bankruptcy and lunacy "whereby registration, instead of as under the old law (ante, p. 4) from any sum of money or any costs, charges, or expenses shall be execution issued.
payable to any person,” are to have the effect of judgments in Charge in Equity under 1 & 2 Vict. c. 110, s. 13.—By this the superior courts of common law. Before the statute a decree section a judgment entered up in the superior courts at Westmin- in equity gave no right against the land (see 3 Prest. Abst. 354; ster is to operate as a charge upon all lands, &c., belonging to the Lee v. Green, 4 W. R. 270, 6 De G. M. & G., at p. 168; Nortdebtor at the time of entering up (as against purchasers section cliffe v. Warburton, 10 W. R. 635 ; 1 Dan. Ch. Pr., 6th ed., 925). 19 substitutes the time of registration of) the judgment, or at any as to what are decrees, &c., within this section, see Dart, 466 ; time afterwards“ for any estate or interest whatever, at law or in Shelf. R. P. Stat. 590 ; Seton, 1142, 1143. The principle of equity, whether in possession, reversion, or expectancy," or over the decisions,” said Kindersley, y.c. (Garner v.
Briggs, 27 L. J. which he has a general disposing power (described as in section Ch. 483), “subject to exceptional cases with respect to judgments 11); and it is to bind all persons claiming under him after such at law, is this :—To constitute a judgment debt, the judgment judgment, and also the issue of his body, and all other persons must not be interlocutory, but final, for the payment of a whom he might bar without the assent of any other person. The specific sum of money, upon which there is nothing left to be done creditor is to have the same remedies in a court of equity as he except to compute interest, and the party must also have an actual would have had if the debtor had, by writing under his hand, right to receive the money." Since the Judicature Acts the agreed to charge the hereditaments with the amount of the judg- judgments and orders of all divisions of High Court (which ment debt and interest ; but such charge is not to be enforced in includes the Bankruptcy Jurisdiction : Bankruptey Act, 1883, s. equity until the expiration of one year from entry of judgment. 93) must be taken to be on the same footing; and in the Judicature The section concludes with a proviso that nothing therein contained Act, 1873, s. 100, “judgment” includes decree, and “order" shall alter or affect any doctrine of equity protecting purchasers includes rule. Judgments of palatine and county courts, and for value without notice. There is thus protection to purchasers Scotch and Irish judgments will be dealt with hereafter. without notice so far as regards the additional remedies given by Observe that the decrees, orders, and rules spoken of in this secsection 13; but section 11 gave no such protection, and they tion are those of " courts of equity” and “courts of common law” therefore remained liable to execution by elegit (see post, 2 & 3 generally, and not merely those of the High Court of Chancery Vict. c. 11; Sugd. Conc. V. 387).
and the superior courts at Westminster. 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 take possession and p. 29, it should be stated that, on the 4th inst., a divisional court of the
With regard to the case of Reeve v. Fowle, in chambers, reported ante, receive the rents and profits (see ante, p. 24), the section now under Queen's Bench Division granted a rule absolute for a prohibition against consideration gave a new right to the creditor, enabling him to
the county court judge. obtain satisfaction out of the corpus of the property, and for that
The Berlin correspondent of the Times says that the German civil purpose to realize it by a suit in equity (Pratt ý. Ball, 11 W. R. code, on which a commission of eminent jurists has been labouring for 82, 295, 4 Giff. 117).
some years back, is now rapidly approaching completion, only the secIt remained open to the creditor, in cases where there was any The empire has already-since 1879--a criminal and commercial code, as
tion relating to the law of inheritance remaining now to be dealt with. impediment to legal execution under section 11, to file a bill well as a uniform system -of legal procedure, and now the national (without waiting for the expiration of the year to entitle him to unity, as far at least as law is concerned, is soon to receive the coping