disapproved, and that of Erle, J., followed, in Beavan v. L. Oxford, 6 D. M. & G. 492; Kinderley v. Jervis, 22 Beav. 1; Scott v. L. Hastings, 4 K. & J. 633; Pickering v. Ilfracombe Ry., L. R. 3 C. P. 235; Robinson v. Nesbitt, Ib. 264; Gill v. Continental Gas Co., L. R. 7 Ex. 332; Punchard v. Tomkins, 31 W. R. 286; Re Bell, Carter v. Stadden, 54 L. T. N.S. 370; Re Leavesley, (1891) 2 Ch. 1.

It has been held that a charging order may be made on shares standing in the name of a mere trustee: Cragg v. Taylor, L. R. 1 Ex. 148; Fuller v. Earle, 7 Ex. 796; and where the judgment debtor is not the only person beneficially interested: S. W. Loan Co. v. Robertson, 8 Q. B. D. 17; Fowler v. Churchill, 11 M. & W. 57, 323.

But it has been also held that if the judgment debtor in whose name the shares stand has no beneficial interest in them, the charging order nisi will not prevent a transfer: Gill v. Continental Gas Co., L. R. 7 Ex. 332.

As stated by Erle, J., in Watts v. Porter, 3 Ell. & Bl. 758, a judgment creditor with a charging order gets all such remedies as (and no more than) he would have been entitled to if such charge had been made in his favour by the judgment debtor; and see Robinson, Law of Priority, 14, 102; Fish. on Mort. 631; Re Blakely Ordnance Co., 25 W. R. 111; Onslow's Trusts, 20 Eq. 677; Gill v. Continental Gas Co., L. R. 7 Ex. 332, 338; and the Court has no jurisdiction to order a sale, which can only be obtained in separate proceedings: Leggott v. Western, 12 Q. B. D. 287.

The interest of a legatee in the residuary produce of stocks and shares bequeathed to him, subject to a trust for payment of debts and legacies and conversion, is not an interest which can be charged by him with his judgment debt, under 1 & 2 V. c. 110, s. 14, and 3 & 4 V. c. 82, s. 1: Dixon v. Wrench, L. R. 4 Ex. 154. And see Cragg v. Taylor, L. R. 2 Ex. 131.

A charging order on a fund standing to the credit of a lunatic ought to be in form unconditional, and as to a specified amount, and not leaving the amount to be charged to be determined by the Lords Justices: Horne v. Pountain, 23 Q. B. D. 264.

Charging orders on stock in Court to the credit of a lunatic, worded so as not to be enforceable until his death, prevail over any claim by his administratrix: Re Leavesley, (1891) 2 Ch. (C. A.) 1.

A charging order upon the next accruing dividends of property settled to the separate use of a married woman with restraint on anticipation is inoperative: Stanley v. S., 7 Ch. D. 589; as also a charging order in respect of a debt which is void by reason of the contractor's infancy: Onslow's Trusts, 20 Eq. 677; or upon a pension granted to the judgment debtor by the E. I. Co.: Morris v. Manesty, 7 Q. B. 674; or Government life annuities and the arrears: Taylor v. Turnbull, 4 H. & N. 495.

The order nisi could not be made absolute where the judgment debtor was dead when it was obtained: Finney v. Hinde, 4 Q. B. D. 102.

A bankruptcy notice was not set aside, because during the seven days of pendency the creditor had obtained a charging order on shares of the debtor, as the shares could be sold subject to notice to the creditor: Re Sedgwick, Exp. McMurdo, 60 L. T. N.S. 9; 37 W. R. 72.

A judgment creditor could not, by analogy to an attachment of a legal debt under the C. L. P. Act, 1854, ss. 60-67, obtain a charging order in Equity on property which, from being in the name of trustees, was a mere equitable debt to the judgment debtor: Horsley v. Cox, 4 Ch. 92.

Service of a charging order nisi on shares upon the solr and the broker, and also at the last address of the contributory, was held sufficient service before applying to draw up the order absolute: The Paragon and Spero Mining Co., 8 Jur. N.S. 11.

And as to charging orders, see Dan. 934-941; Lewin, 806 et seq.; Fish. Mort. 130-134.

SECTION III.-ATTACHMENT OF DEBTS.

1. Garnishee Order Nisi.

UPON the application of the Plts (creditors), and upon hearing the solrs for the applicants, and upon reading an affidavit of &c., Let all debts due and owing or accruing due from the Deft C. A. and J. S., of &c., as trustees of the will of L., late of &c. (the garnishees), to the said Deft C. A. (debtor) in respect of her share of the annual income of the estate of the said testator, be attached to answer the sum of £—, being the amount of a judgment recovered against the said Deft C. A. by the said Plts on the day of, under the judgment dated &c.; And Let the said Deft C. A., and the said J. S., their solrs or agents, attend before Mr. Justice at his Chambers in &c., on the at 11 o'clock in the forenoon, to show cause why they should not pay to the said Plts the debt due to them from the said Deft C. A., or so much thereof as may be sufficient to satisfy the said judgment.Birch v. Anderton, M. R., at Chambers, 11 Dec. 1875, A. 1822.

day of

For like order, that "all debts due and owing or accruing due from — (the garnishees) to the Deft be attached to answer the sum of &c., ordered to be paid to the Plt by the said Deft," &c., see Gillot v. Ker; M. R., in Chambers, 5 May, 1876, A. 743.

2. Garnishee Order Absolute for Attachment of Debts.

WHEREAS by an order dated &c. (Recite former order, Form 1)And the applicants by their solrs attending this day, and the said C. A. and J. S. not appearing in person nor by their solr, though they have been duly served with the said order as by the affidavit of &c. appears, and upon reading &c.; It is ordered that the Deft C. A. and the said J. S., the garnishees, do pay any sum or sums of money now in their hands as trustees of the will of L., the testator &c., in respect of the interest which the said C. A. takes under the said will, to the Plts B. &c., not exceeding the said sum of £-, being the (amount of the) judgment recovered by the said Plts against the said Deft C. A., together with interest thereon at the rate of £4 p. c. per ann. until payment.

3. Attachment of Moneys in the Hands of a Receiver on Application of a Judgment Creditor.

UPON the application &c., It is ordered that any sum or sums of money now in the hands of the receiver payable or accruing due to the Deft E. G. be (subject to any prior incumbrances thereon) attached to answer the sum of £-, being the amount of the judgment recovered against the said Deft E. G. by the applicant on the day of, with interest at £4 p. c. per ann. from the date of the said judgment; And it is ordered that the said receiver do after payment of any prior incumbrances thereon pay any sum or sums of money in his hands, pay

able or accruing due to the said Deft E. G., to the applicant, not exceeding the amount of the said judgment debt with interest.

NOTES.

By O. XLII. 32, the party entitled to enforce a judgment or order for the recovery or payment of money may apply to the Court or a Judge for an order that the debtor liable under such judgment or order, or, in the case of a corporation, that any officer thereof be orally examined as to whether any and what debts are owing to the debtor, and whether the debtor has any and what other property or means of satisfying the judgment or order, before a Judge or an officer of the Court, as the Court or a Judge shall appoint; and the Court or Judge may make an order for the examination of such judgment debtor, and for the production of any books or documents.

The examination under this rule is intended to be of the most stringent character: Republic of Costa Rica v. Strousberg, 16 Ch. Div. 8; et v. sup. P. 374.

By O. XLV. 1, "the Court or a Judge may, upon the ex parte application of any person who has obtained a judgment or order for the recovery or payment of money, either before or after any oral examination of the debtor liable under such judgment or order, and upon affidavit by himself or his solr stating that judgment has been recovered, or the order made, and that it is still unsatisfied, and to what amount, and that any other person is indebted to the judgment debtor, and is within the jurisdiction, order that all debts owing or accruing from such third person (hereinafter called the garnishee) to such debtor shall be attached to answer the judgment or order; and by the same or any subsequent order it may be ordered that the garnishee shall appear before the Court or a Judge or an officer of the Court as such Court or Judge shall appoint, to show cause why he should not pay the person who has obtained such judgment or order the debt due from him to such debtor, or so much thereof as may be sufficient to satisfy the judgment or order."

By r. 2, "service of an order that debts due or accruing to a debtor liable under a judgment or order shall be attached, or notice thereof to the garnishee in such manner as the Court or Judge shall direct, shall bind such debts in his hands."

By r. 3, "if the garnishce does not forthwith pay into Court the amount due from him to the debtor liable under a judgment or order, or an amount equal to the judgment or order, and does not dispute the debt due or claimed to be due from him to such debtor, or if he does not appear upon summons, then the Court or Judge may order execution to issue, and it may issue accordingly, without any previous writ or process, to levy the amount due from such garnishee, or so much thereof as may be sufficient to satisfy the judgment or order."

By r. 4, "if the garnishee disputes his liability, the Court or Judge, instead of making an order that execution shall issue, may order that any issue or question necessary for determining his liability be tried or determined in any manner in which any issue or question in an action may be

tried or determined."

By r. 5, "whenever in proceedings to obtain an attachment of debts it is suggested by the garnishee that the debt sought to be attached belongs to some third person, or that any third person has a lien or charge upon it, the Court or Judge may order such third person to appear, and state the nature and particulars of his claim upon such debt."

By r. 6, "after hearing the allegations of any third person under such order as in r. 5 mentioned, and of any other person whom by the same or any subsequent order the Court or Judge may order to appear, or in case of such third person not appearing when ordered, the Court or Judge may order execution to issue to levy the amount due from such garnishee, or any issue or question to be tried or determined according to the preceding rules of this order, and may bar the claim of such third person, or make such other order as such Court or Judge shall think fit, upon such terms, in all cases, with respect to the lien or charge (if any) of such third person, and to costs, as the Court or Judge shall think just and reasonable."

By r. 7, "payment made by or execution levied upon the garnishee under

any such proceeding as aforesaid shall be a valid discharge to him as against the debtor, to the amount paid or levied, although such proceedings may be set aside, or the judgment or order reversed."

By r. 8, "there shall be kept by the proper officer a debt attachment book, and in such book entries shall be made of the attachment and proceedings thereon, with names, dates, and statements of the amount recovered, and otherwise; and copies of any entries made therein may be taken by any person upon application to the proper officer."

By r. 9, the costs of any application for an attachment of debts, and of any proceedings arising from or incidental to such application, shall be in the discretion of the Court or a Judge."

By O. XLVIIIA. (June, 1891), r. 9, debts owing from a firm carrying on business within the jurisdiction may be attached under O. XLV., although one or more members of such firm may be resident abroad: provided that any person having the control or management of the partnership business or any member of the firm within the jurisdiction is served with the garnishee order. An appearance by any member pursuant to an order shall be a sufficient appearance by the firm.

With the exception of r. 4, which is varied from s. 64, these rules are in substance identical with the garnishee clauses which were introduced as a new remedy against the property of the judgment debtor by the C. L. P. Acts, 1854 (17 & 18 V. c. 125), ss. 60-67; 1860 (23 & 24 V. c. 126), ss. 29, 30; both repealed by 46 & 47 V. c. 49.

The object of sect. 61 (corresponding with r. 1), was to give a judgment creditor, who cannot levy upon the chattels of his debtor, a remedy against his debts by attaching both existing and accruing debts, and by enforcing the attachment by order for payment of debts as and when they become payable, making a fresh order for payment when each debt has become actually payable: Tapp v. Jones, L. R. 10 Q. B. 591; and see Sampson v. Seaton Ry. Co., Ib. 28.

Under the former procedure the power of attaching debts was only exercised in favour of persons who had obtained judgment in a superior Court of Common Law, and not a mere order for payment in Equity: see Exp. Financial Corp., L. R. 4 C. P. 155.

But this distinction has been abolished by the Jud. Acts, and any person who has obtained a judgment or order in any Division of the High Court, for the recovery or payment of money, may apply for a garnishee order, as provided by O. xlv. 1, 2.

The assignee of a judgment debt is a person who has "obtained" a judgment within O. XLV. 1, and entitled as such to a garnishee order: Goodman v. Robinson, 18 Q. B. D. 332.

An affidavit of information and belief is sufficient on an application for a garnishee order: Coren v. Barne, 22 Q. B. D. 249; De Pass v. Capital and Industries Corporation, (1891) 1 Q. B. (C. A.) 216, and though the affidavit specifies a particular debt the inquiry is not limited to that, but the garnishee may be called upon to deny that he owes any debt to the judgment debtor, and if he refuses to do so, an order absolute will go.

DEBTS CAPABLE OF BEING ATTACHED.

A debt, in order to be capable of attachment, under O. XLV. 1, 2, must be one in which the judgment debtor is beneficially interested, and for which he is in a position to sue: Chatterton v. Watney, 16 Ch. D. 378; and only so much of the debt can be affected as the judgment debtor can honestly deal with at the time when the garnishee order is obtained: Davis v. Freethy, 24 Q. B. Div. 519; Re General Horticultural Co., Exp. Whitehouse, 32 Ch. D. 512; Badeley v. Consolidated Bank, 38 Ch. Div. 238; and see Hancock v. Smith, 41 Ch. Div. 456.

A merely conditional debt, which may or may not become due, cannot be attached, e.g., a claim for compensation money under a notice to treat: Richardson v. Elmit, 2 C. P. D. 9; Howell v. Met. Dist. Rail. Co., 19 Ch. D. 508; or income arising from a trust fund which has not come to the hands of the trustee Webb v. Stenton, 11 Q. B. Div. 518; and per Brett, L. J., accruing debt" means no more than debitum in præsenti solvendum in futuro: S. C.; or a legacy settled by the legatee before the garnishee order, though the

66

settlement be impeachable: Vyse v. Brown, 13 Q. B. D. 199; and see Re Hayson, Booth v. Trail, 12 Q. B. D. 8, 10.

Salary accruing is not a "debt owing or accruing" capable of being attached: Hall v. Pritchett, 3 Q. B. D. 215; Jones v. Thompson, E. B. & E. 63; secus, a sum already accrued due in respect of a superannuation pension to a retired police constable: Booth v. Trail, sup.

As to the effect of the Wages Attachment Abolition Act, 1870 (33 & 34 V. c. 30), see Gordon v. Jennings, 9 Q. B. D. 45; Booth v. Trail, sup.; and that the pay of an officer on service in the army or navy cannot be attached, see Apthorpe v. A., 12 P. D. 192; 35 W. R. 728; citing Flarty v. Odlum, 3 T. R. 681; and that an assignment of the salary of the chaplain to a workhouse and workhouse infirmary is not void as against public policy, see Re Miram, (1891) 1 Q. B. 594.

A debt due to A. and B. jointly cannot be attached to answer the judgment debt of A. alone: Macdonald v. Tacquah Co., 13 Q. B. D. 535; questioning Nash v. Pease, 47 L. J. Exch. 766, where an annuity to which a widow was entitled for the maintenance of herself and her infant son was held attachable in the hands of trustees, subject to inquiry what ought to be allowed for the son's maintenance.

And proceeds of a judgment paid into a County Court are not attachable as a "debt" due from the registrar of the Court: Dolphin v. Layton, 4 C. P. D. 130.

Arrears of income which have accrued due to a married woman restrained from anticipation, and suing under the Married Women's Property Act, 1882, may be retained by trustees to answer costs which she has been ordered personally to pay to them: Cox v. Bennett, (1891) 1 Ch. (C. A.) 617, distinguishing Re Glanvill, 31 Ch. Div. 532. A judgment against a married woman, though limited to her separate estate, is still a judgment under 0. XLV. 1: Holtby v. Hodgson, 24 Q. B. Div. 103.

And money recovered by a married woman in an action, as damages, could be garnished, although the judgment in such action was not in fact entered until after the commencement of the garnishee proceedings: S. C.

As to the right to attach surplus proceeds of mortgaged property in the hands of a mortgagee, and that there can be no such right where the sale has taken place after the garnishee order, see Chatterton v. Watney, sup.; and for particular instances of debts which could or could not be attached, see Dan. 943-945; Day, C. L. P. Acts, 315; Chitty, Archbold, 928-933.

An equitable as well as a legal debt can now be attached: Wilson v. Dundas, W. N. (75) 232; also money in the hands of a receiver and payable under order of the Court to the debtor: Cowan's Estate, Rapier v. Wright, 14 Ch. D. 638.

In Cremetti v. Crom, 4 Q. B. D. 225, it was held that an order of dismissal with costs for want of prosecution could not be enforced by attachment of debts due to Plt.

EFFECT OF GARNISHEE ORDER.

It has been held that a garnishee order nisi is a right much more specific than is created by the mere delivery of a writ of execution to the sheriff: Emanuel v. Bridger, L. R. 9 Q. B. 286; and see Holmes v. Tutton, 5 E. & B. 65; but until served on the garnishee it does not create a charge: Hamer v. Giles, 11 Ch. D. 942.

A garnishee order has not the effect of transferring the debt, nor does it give to the person obtaining the order any right to the securities for it, or any claim to the land comprised therein: Chatterton v. Watney, 17 Ch. Div. 259; nor convert him into a creditor who can present a winding-up petition : Re Combined Weighing Co., 43 Ch. Div. 99; nor is notice necessary to complete the title of a previous incumbrancer as against the garnishor: Re General Horticultural Co., 32 Ch. D. 512; Arden v. A., 29 Ch. D. 702; Badeley v. Consolidated Bank, 38 Ch. Div. 238.

A Scotch arrestment, being equivalent to assignment with notice, may give the arrester of calls due from Scotch shareholders priority over debenture holders who have not given notice to such shareholders: Re Queensland Mercantile Co., (1891) 1 Ch. 536.

A judgment creditor who had obtained and served on the garnishee a

VOL. I.

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