2&3 Vict. c. 11, s. 4.

Present rule as to searches for

judgments and writs of execution.

Other searches.

Purchaser not

bound to search.

p. 599) has provided that no judgment already docketed under 4 & 5 Will. & Mary, c. 20, shall, after the 1st August, 1841, affect any lands as to purchasers, mortgagees or creditors, unless and until the minute thereof prescribed by the 1 & 2 Vict. c. 110, s. 19 (ante, p. 593), shall be left with the senior master of the Court of Common Pleas at Westminster, who shall forthwith enter the same in manner thereby directed in regard to judgments. The 4th section of this act has further provided that all judgments, decrees or orders, rules and orders, which had been registered under the 1 & 2 Vict. c. 110, or which thereafter should be so registered, are, in order to bind purchasers, mortgagees or creditors, to be again registered every five years.

The rule as to the searches which should be made in the case of sales of land since 1864 has been thus stated: "A purchaser should, as a general rule, search in the Common Pleas for judgments entered up before the 28th July, 1864, against the vendor and all other persons who appear from the abstract to have been owners of or interested in the property during a period of twenty years immediately preceding the sale, except mortgagees who have been paid off on the occasion of a prior sale or mortgage, or are intended to be paid off out of the present purchase-money; and such search should be made immediately before the completion of the purchase, and be carried back for a period of five years, which will in all cases be sufficient. If upon such search a judgment is found, its satisfaction or release should be required, unless it has been entered up between the 23rd July, 1860, and the 29th July, 1864, and execution has not been duly issued and registered. The purchaser should also search for executions issued and registered since the 29th July, 1864, and should require the release or satisfaction of any judgment upon which he shall find a writ of execution to have been so issued and registered." (1 Prideaux, Conv. 147, 7th ed.)

The register of judgments should be searched, although the estate lie in a registered county. (Sugd. V. & P. 546, 14th ed.) In purchasing from a tenant in tail or remainderman it will be necessary to search for judgments against the preceding tenants in tail. (See ante, pp. 568, 574.) A purchaser should also search the Court of Chancery for statute deeds substituted for fines and recoveries, as well as the index in the Common Pleas for the certificates of acknowledgments of deeds by married women; in which index the names of married women and their husbands are alphabetically arranged. (See 3 & 4 Will. 4, c. 74, s. 87, ante, p. 394; Sugd. V. & P. 546, 14th ed.) There should be a search for grants of annuities. (18 & 19 Vict. c. 15, s. 12, post; Sugd. V. & P. 547, 14th ed.)

The next section seems to show that registration is not in itself notice. An estate was mortgaged to A., and afterwards to the defendant. The plaintiff subsequently obtained a registered judgment against the mortgagor. The defendant then purchased the equity of redemption without searching for judgments. On a bill to charge the equity of redemption with the judgment, the court held, that the defence of "purchase for valuable consideration without notice" was available in this case, and that it was not incumbent on a purchaser to search for judgments. (Lane v. Jackson, 20 Beav. 535. See Sugd. V. & P. 761, 14th ed.)

When a judgment has been registered and a search has been made for such judgment, the person searching must be considered to have notice of the judgment. (Procter v. Cooper, 18 Jur. 444; 2 Drew. 1.)

Where a vendor, from inability to make out a title, fails to complete a contract for the sale of an estate, the purchaser is entitled to recover the expense of comparing deeds, of searching for judgments, and of journeys for that purpose, and interest on his deposit money. Unless judgments are searched for at an early stage of the proceedings, great expense may afterwards be incurred unnecessarily; and for the same reason, the comparison of deeds with the abstract should be early. (Hodges v. Earl of Lichfield, 1 Bing. N. C. 492, 499. See Lodge v. Lysely, 4 Sim. 75; Foster v. Blackstone, 1 Myl. & K. 259; Forth v. Duke of Norfolk, 4 Madd. 504; and Sugd. V. & P. 538, 547, 14th ed.)

any

PURCHASERS WITHOUT NOTICE.

5. As against purchasers and mortgagees without notice of such judgments, decrees or orders, rules or orders, as aforesaid, none of such judgments, decrees or orders, rules or orders, shall bind or affect any lands, tenements or hereditaments, or any interest therein, further or otherwise or more extensively in any respect, although duly registered, than a judgment of one of the superior courts aforesaid, would have bound such purchaser or mortgagee before the said act of the first and second years of the reign of her present Majesty, where it had been duly docketed according to the law then in force (f).

(f) A judgment registered under the stat. 1 & 2 Vict. c. 110, does not bind leasehold lands against a purchaser for value without notice until an elegit is awarded, for before that act a docketed judgment did not bind such lands before an elegit was awarded. (Westbrook v. Blythe, 3 Ell. & Bl. 737, ante, p. 576.)

A creditor by judgment registered pursuant to 1 & 2 Vict. c. 110, but not registered in the Middlesex registry, by suit sought priority over a mortgagee of a subsequent date, but whose security was properly registered in the Middlesex registry, and to foreclose him. The court thought the question of priority turned upon notice, and directed an issue, whether the mortgagee had, at the date of his mortgage, actual notice of the judgment. (Robinson v. Woodward, 4 De G. & S. 562. See, however, Hughes v. Lumley, 4 Ell. & Bl. 274; and Benham v. Keane, 3 De G., F. & J. 318, ante, p. 576.)

EXTINCT JUDGMENTS.

6. Nothing in the said recited act of her present Majesty nor Not to revive in this act contained shall extend to revive or restore any judg- already extinjudgments ment which shall be extinguished or barred, nor shall the same guished or barred. extend to affect or prejudice any judgments as between the parties thereto, or their representatives, or those deriving as volunteers under them.

REGISTRY OF LIS PENDENS.

7. No lis pendens shall bind a purchaser or mortgagee without 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 the same particulars in a book as aforesaid, in alphabetical order, by the name of the person whose estate is intended to be 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 hereinbefore contained in regard to the re-entering of judgments every five years, and the fee payable to the officer thereon, shall extend to every case of lis

Purchasers not to lis pendens, unless such suit is

be affected by any

duly registered as directed by

this act.

2&3 Vict. pendens which shall be registered under the provisions of this

c. 11, s. 7.

Special case to be a lis pendens, and

may be registered.

act (g).

(g) By stat. 13 & 14 Vict. c. 35, s. 17, the filing of a special case under that act (which commenced on 1st of Nov. 1850), and the entering of appearances thereto by the persons named as defendants therein, shall be taken to be a lis pendens, and may be registered under the provisions of this act in like manner as any other lis pendens in a court of equity may now be so registered, and unless and until so registered, shall not bind a purchaser or mortgagee without express notice thereof.

It seems that, upon filing a bill in equity, there is a lis pendens before service of the bill; and that a general administration suit is a lis pendens quoad lands afterwards sold under the decree in it. (Drew v. Earl of Norbury, 3 Jones & L. 267.)

As to lis pendens, see Kinsman v. Kinsman, 1 Russ. & My. 617; Powell on Mortgages, by Coventry, Vol. 1, 541-547; Sugd. V. & P. 758 et seq., 14th ed.; Dart, V. & P. 455, 796, 4th ed.; and as to negligence on the part of a solicitor for not registering a lis pendens, see Plant v. Pearman, 20 W. R. 314.

Under 25 & 26 Vict. c. 89, s. 114, which authorized the registration of a petition for winding up a company as a lis pendens: it was held, that the petition could not be registered against the individual contributories. (Ex parte Thornton, L. R., 2 Ch. 171.) But the section is now repealed. (30 & 31 Vict. c. 47, s. 1.)

Satisfaction may be entered as to a registered lis pendens under 23 & 24 Vict. c. 115, s. 2, post; 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 bonâ fide. (30 & 31 Vict. c. 47, s. 2.)

REGISTRY OF CROWN DEBTS.

8. No judgment, statute or recognizance which shall hereafter be obtained or entered into in the name or upon the proper account of her Majesty, her heirs or successors, or inquisition by which any debt shall be found due to her Majesty, her heirs or successors, or obligation or specialty which shall hereafter be made to her Majesty, her heirs or successors, in the manner directed by an act passed in the thirty-third year of the reign of his late Majesty King Henry the Eighth, intituled "The Erection of the Court of Surveyors of the King's Lands, and the Names of the Officers there, and their Authority," or any acceptance of office which shall hereafter be accepted by officers whose lands shall thereby become liable for the payment and satisfaction of arrearages under the provisions of the act passed in the thirteenth year of the reign of her late Majesty Queen Elizabeth, intituled "An Act to make the Lands, Tenements, Goods and Chattels of Tellers, Receivers, et cætera, liable to the Payment of their Debts," shall affect any lands, tenements, or hereditaments, as to purchasers or mortgagees, unless and until a memorandum or minute, containing the name and the usual or last place of abode, and the title, trade or profession of the person whose estate is intended to be affected thereby, and also in the case of any judgment the court and the title of the cause in which such judgment shall have been obtained, and the date of such judg

2&3 Vict.

c. 11, s. 8.

ment, and the amount of the debt, damages and costs thereby recovered, and also in the case of a statute or recognizance the sum for which the same was acknowledged, and before whom the same was acknowledged, and the date of the same, and also in the case of an inquisition the sum thereby found to be due, and the date of the same, and also in the case of an obligation or specialty the sum in which the obligee* shall be bound, or Sic, query for which the obligation or specialty shall be made, and the obligor. date of the same, and also in the case of acceptance of office, the name of the office, and the time of the officer accepting the same, shall be left with the senior master of the said Court of Common Pleas, who shall forthwith enter the same particulars in a book, to be intituled "The Index to Debtors and Accountants to the Crown," in alphabetical order, by the name of the person whose estate is intended to be affected by such judgment, statute or recognizance, inquisition, obligation or specialty, or the acceptance of any office; and such officer shall be entitled for any such entry to the sum of two shillings and sixpence ; and all persons shall be at liberty to search the same book, and Registry to be also the other book to be kept according to the provisions of open to inspecthe said recited act of the first and second years of the reign of her present Majesty, or either of the said books, on payment of the sum of one shilling, whether one only or both of the said books shall be searched, and no multiplication of books is to increase the fee (h).

tion.

(h) The statute 13 Eliz. c. 4, enumerates a great many officers of the Who are and are crown, and renders their lands liable to crown debts. That statute is re- not accountants pealed as to receivers of customs, by the 6 Geo. 4, c. 105, s. 13. (See 6 to the crown. Geo. 4, c. 106, s. 7.) In Wilde v. Fort, 4 Taunt. 334, a commissioner of Dutch property who was directed by statute to pay the surplus of certain sales into the Bank of England, subject to the orders of the king in council, was considered to come within the words "receiver of any sums of money, imprest or otherwise, for the use of the crown." Money impressed by the crown is money advanced for the purpose of being employed by the party for the use of the crown. (6 Price, 424.) But in Casberd v. Ward and the Attorney-General (6 Price, 411), it was held, that a collector of assessed taxes is not a collector or receiver of money to the use of the king's majesty, within the purview of the statute. (See 16 Vin. Abr. 527-529.) See 43 Geo. 3, c. 99, and 3 Geo. 4, c. 88, as to the bond by a tax collector and his surety, and the sale of lands and goods under it. (Gwynne v. Burnell, 2 Bing. N. C. 7; 9 Bing. 544.) A recognizance by a guardian in the matter of a minor is not a debt due to the crown upon which an extent can issue, as the debt not being of a public nature, is not altered by the form of the security. (Ex parte Usher, 1 Rose, 366.) It was formerly questioned whether a bond to the crown, entered into by the committee of a lunatic, in consequence of a grant of the lunatic's estate having been made to him in the usual form, under the great seal, be an obligation of the same force and effect as a statute staple within the 33 Hen. 8, c. 39, s. 50, so that an extent may be issued on it. (Rex v. Lamb, M'Clel. 402; 13 Price, 649. See form of bond in Shelford on Lunatics, 849, 850, 2nd ed.) It has been decided that such bond is within that statute, and that the crown is entitled to treat it as matter of record, and to have a scire facias thereon. (Reg. v. Chambers, 11 Mees. & W. 776.) A bond to the crown under 33 Hen. 8, c. 39, binds all lands of the obligor over which he has a disposing power at the time he entered into the bond. The giving such a bond is the voluntary act upon the part of the obligor, and he cannot, by afterwards exercising the power, defeat the right of the crown. Such bond is within the 33 Hen. 8, c. 39,

2 & 3 Vict.

c. 11, s. 8.

When lien of crown attaches.

though made payable to "the king, his heirs and successors," and, being a record, can be looked at by the court, although it be not set out in the pleadings. (Reg. v. Ellis, 4 Exch. 652.) A deputy assistant commissarygeneral was held to be a public accountant within the meaning of the statutes, subjecting the property of certain accountants with the crown to seizure and sale for satisfaction of the balance against them. (Rex v. Fernandes, 12 Price, 862.) An agent of a fire insurance company, who has received premiums and duties for the company to whom he has given security, is liable to a writ of immediate extent for the duties, although the company be also liable to the crown. (Rex v. Wrangham, 1 C. & J. 408 ; 1 Tyr. 383.) A person employed in the service of the crown as deputy commissary-general to the forces abroad, and assistant commissary in the islands of Guernsey and Alderney, and employed in the negotiation of Bank of England notes received from the paymaster-general of the forces, and of bills of exchange received from the treasury on account of the public service, having also received specie on the same account, is accountable to the crown, and is, as such accountant, within the stat. 13 Eliz. c. 4, s. 1, and his lands, of which he was seised at any time during the period of his accountability, are bound by his engagement with the public, and subjected to prerogative process for security and payment of the balance ultimately declared against him. (Rex v. Rawlings, 12 Price, 834.) Where the defendant was appointed Clerk of the Patents under 3 & 4 Will. 4, c. 84, it was held that he was a paid agent for the purpose of receiving and paying over money, and that the crown was entitled to file an information in the Court of Chancery for an account of the public monies received by him. (AttorneyGeneral v. Edmunds, L. R., 6 Eq. 381.)

In cases coming within the stat. 13 Eliz. c. 4, the lien of the crown attaches from the time at which the owner of the land becomes a receiver and accountant; so that a sale made after the acceptance of the office, and before any debt is contracted, may, to the extent of the interest of the crown, be defeated by the existence of a subsequent debt to the crown. (Nicholls v. How, 2 Vern. 389; King v. Bishop of Sarum, Moore, 126; 25 Geo. 3, c. 35.) All freehold lands are liable to the execution of the crown, and trust estates (Earl of Devonshire's case, 11 Rep. 92; 13 Eliz. c. 4, s. 5) as well as legal estates, are bound by this lien. Consequently the plea of being a purchaser for valuable consideration, without notice, will not avail against the crown; and a purchaser, though thus favourably circumstanced, cannot use an attendant term as a protection against the crown. (Rex v. Smith, Sugd. V. & P. 673, 778, 1098, 11th ed.; How v. Nichol, Pr. Ch. 125. See Rex v. St. John, 2 Price, 317; Rex v. Hollier, 2 Price, 394.) Where the term never was held in trust for the crown debtor, it may be used as a defence against the crown debt. (Rex v. Lamb, 13 Price, 649; M'Clel. 402.) Entailed lands are chargeable under 33 Hen. 8, c. 39, s. 76: when the lien attached on the heir in tail, as such, under the statute, a bona fide alienation by the heir in tail before the teste of the writ of extent would bind the crown. (Anderson's case, 7 Rep. 21.) An agreement on borrowing (by recital in a bond) money, on the part of the borrower, that certain real property, freehold and leasehold, sbould stand pledged for repayment of it, and a delivery of the title deeds, amounting in equity to a mortgage or right to a mortgage, creates a lien binding as against the prerogative lien of the crown, in respect of a debt accruing due to the king subsequently; and the equitable mortgagees are entitled to be first paid their principal and interest out of the produce of the sale of the premises, the property of the crown debtor, seized under an extent in chief. (Fector v. Philpot, 12 Price, 197.) Where part of the property so equitably pledged was leasehold, renewable by the lessee, and the equitable mortgagee had procured a renewal of the lease in the name of the lessee (the crown debtor), by surrendering the original lease, and taking a new one of the same premises after the crown debt had accrued, such new lease, and the premises leased thereby, were held to be subject to the equitable lien on the old lease, and the lien to be preferable to the demand on the part of the crown against the crown debtor, in respect of priority of satisfaction out of the proceeds of the sale. (lb.) When the mortgagor had become bankrupt, an equitable mortgagee was not allowed