23 & 24 VICTORIA, C. 115. An Act to simplify and amend the Practice as to the Entry 23 & 24 Vict. WHEREAS by several acts of parliament debts and obligations c. 115, s. 1. to the crown, judgments pending suits, and annuities are severally required to be registered in the office of the senior master of the Court of Common Pleas at Westminster, in order to affect any lands, tenements and hereditaments sought to be charged therewith, and it is expedient to simplify and amend the practice with respect to the entry of satisfaction or discharge on the registry thereof respectively: be it therefore enacted, as follows: Provisions of sects. 195, 196 and 197 of 16 & 17 Vict. c. 107, extended to all bonds to the crown. All bonds, &c. valid. 1. All the powers, provisions and regulations, concerning bonds and other securities relating to the customs contained in sections one hundred and ninety-five, one hundred and ninetysix, and one hundred and ninety-seven, of the act passed in the session of parliament holden in the sixteenth and seventeenth years of her Majesty's reign, chapter one hundred and seven (a), shall, mutatis mutandis, be deemed to extend and shall be applied to all bonds and other securities entered into or given to her Majesty, her heirs or successors: provided always, that in every case in which under the provisions of the said sections any certificate is required to be signed or any other matter authorized to be done by the commissioners of customs, or any number of them, any such certificate or matter in relation to any bond or other security concerning or incident to any public department shall respectively be signed and done by the respective commissioners or other principal officers of such department, or any two of them respectively, or if there shall be only one such commissioner or principal officer then by him, as the case may be, or if there shall be no such commissioner or other principal officer then by the commissioners of her Majesty's treasury or any two of them. (a) Sect. 195. All bonds and other securities entered into by any person or persons for the performance of any condition, order or matter relative to the customs or incident thereto, shall be valid in law, and upon breach of any of the conditions thereof may be sued and proceeded upon in the same manner as any bond expressly directed, or given by or under the provisions of any act relating to the customs, and all bonds relating to the customs or Bonds to be taken for the performance of any condition or matter incident thereto shall be to the use of her Majesty. taken to or for the use of her Majesty, and all such bonds, except such as are given for securing the due exportation of or payment of duty upon warehoused goods, may, after the expiration of three years from the date thereof or from the time, if any, limited therein for the performance of the condition thereof, be cancelled by or by the order of the commissioners of customs, and all bonds given under the provisions of this or any act relating to the customs by persons under twenty-one years of age shall be valid. Sect. 196. If any bond given under the provisions of this or any act relating to the customs, or in respect of any matter under the control or management of the commissioners of customs shall have been registered in the Court of Common Pleas in England, or in the office of the registrar of judgments in Ireland, and the condition of such bond shall have been satisfied, the commissioners of customs, by certificate under the hands of any two or more of them, may authorize the proper officer of the said court or office of registrar of judgments as the case may be, to enter up satisfaction on the record of such bond or obligation, and such certificate may be in the form or to the effect following: This is to certify that the following bond has been satisfied and cancelled. And upon the receipt of such certificate such officer is required to enter up satisfaction accordingly, whereupon the bond or obligation shall be discharged, and the land thereby affected shall be released and exonerated from all claims in respect thereof. 23 & 24 Vict. c. 115, s. 1. Bonds of minors valid. How bonds may be discharged. Sect. 197. When any bond entered into under the provisions of this or Exoneration of any act relating to the customs, or for the performance of any condition, estates of order or matter incident or relative to the customs, shall have been regis- obligors. tered in the Court of Common Pleas in England, under the act of the second year of the reign of her present Majesty, chapter eleven, or in the office of the registrar of judgments in Ireland, under the act of the seventh and eighth years of the reign of her said Majesty, chapter ninety, and it shall be deemed necessary in the discretion of the commissioners of customs, to exonerate the whole or any part of the lands of any obligor of such bond from liability in respect thereof, the commissioners of customs, by certificate or certificates under the hands of any two or more of them, may, first requiring the consent of any co-obligor if they shall deem it necessary, exonerate and discharge such lands or any part thereof, as the case may require, and such certificate may be in the form or to the effect following : By a bond or obligation bearing date the day of —, 186—, [name Form of certificate of obligor seeking exoneration,] of [residence and description of obligor], of exoneration. became bound to her Majesty, her heirs and successors, in the sum of conditioned as therein mentioned, and the said bond was on the day of 186-, duly recorded in the Court of Common Pleas, [if in England,] or filed in the office of the registrar of judgments, [if in Ireland,] in pursuance of the act [state the act under which the bond was registered]. This is to certify that all the estates, lands, tenements and hereditaments [if the whole are to be discharged] or [here set out the particular lands, tenements and hereditaments exonerated, if part only are to be discharged, adding the following words,] being part of the estate, lands, tenements and hereditaments of the said [name of obligor seeking exoneration,] are wholly exonerated and discharged from all claims of her Majesty, her heirs or successors, or of the commissioners of customs on her or their 23 & 24 Vict. c. 115, s. 1. Certificates to be sufficient evidence of exoneration. As to entry of satisfaction on judgments. behalf in respect of such bond or obligation. Given under our hands this And the lands mentioned in such certificate or certificates shall thereupon be held wholly exonerated and discharged from all liability in respect of such bond or obligation, and every such certificate shall be accepted by all persons and in all courts as sufficient evidence of the exoneration of the lands therein described. 2. The senior master of the Court of Common Pleas at Westminster may, upon the filing with him of an acknowledgment in the form or to the effect following, be at liberty to enter a satisfaction or discharge as to any registered judgment, pending suit, lis pendens, decree, order, rule, annuity or rent-charge, or writ of execution, and such officer shall be entitled for any such registry of satisfaction or discharge to the sum of two shillings and sixpence, and no more; and such senior master may issue certificates of the entry of any satisfaction or discharge, and may charge the sum of one shilling for every such certificate (b). Form of Acknowledgment of Satisfaction. (b) Satisfaction is acknowledged between A. B. and C. D. as to a of which said day of a memorandum was left with the senior master of the Court of Common Pleas at Westminster, on the day of 186-, to affect the estate of and [if so] on the writ of execution thereon, dated the day of 186- a memorandum of which was left with the said master on the day of 186-. And [or the executor or administrator of] do hereby expressly nominate and appoint -> of —, attorney-at-law, to witness and attest the execution of this acknowledgment of satisfaction. Signed by the said, in the presence of me, the undersigned -, one of the attorneys of her Majesty's Court of at Westminster, and I hereby declare myself to be the attorney for and on behalf of the said -, expressly named by and attending at request to inform him of the nature and effect of this acknowledgment of satisfaction (which I accordingly did the before the same was signed by -), and I also declare that I subscribe my name as witness hereto as such attorney. A. B., the abovenamed - [or F. G., executor or (administrator of] day of 186-. 27 & 28 Vict. c. 112, s. 1. 27 & 28 VICTORIA, C. 112. An Act to amend the Law relating to future Judgments, WHEREAS it is desirable to assimilate the law affecting c. 112, s. 1. most excellent Majesty, by and with the advice and consent 27 & 28 Vict. of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, as follows: 1. No judgment, statute, or recognizance to be entered up after the passing of this act shall affect any land (of whatever tenure) until such land shall have been actually delivered in execution by virtue of a writ of elegit or other lawful authority, in pursuance of such judgment, statute, or recognizance (a). (a) As to judgments entered up before the 23rd July, 1860, sec 1 & 2 Vict. c. 110, s. 13, ante, p. 574; and as to judgments entered up between the 23rd July, 1860, and the 29th July, 1864, see 23 & 24 Vict. c. 38, s. 1, ante, p. 618. Future judg ments, &c. not to land delivered in affect land until execution. Judgments entered up before the passing of this act. The present section requires that in every case the land shall have been What is actual "actually delivered in execution." Where the debtor's property consisted delivery in exeof corporeal hereditaments in possession, it was held, that the return of the cution. sheriff to a writ of elegit constituted actual delivery of the land in execution within the meaning of the act, and that it was not necessary to go on the land and deliver seisin. (Champneys v. Burland, 19 W. R. 148.) actually delivered Literally construed, the provisions of the act can only mean that, except Whether act in the comparatively few cases where the debtor's land is capable of being applies to prodelivered in execution, and has actually been so delivered, no future perty not judgment was to operate as a charge on land. But by sect. 2, "land" is in execution. to include incorporeal hereditaments, and any interest (e. g. a reversionary interest) in corporeal hereditaments. And sect. 5 speaks of charges prior or subsequent to the charge of the petitioner." Clearly, therefore, the act contemplates the case of a judgment creditor who may acquire a charge under the act, and be entitled to the summary remedy in equity which it provides, although not in actual possession under a writ of elegit. (Dart, V. & P. 438, 4th ed.) In a case where a creditor had taken out a writ of fi. fa., and the debtor's property could not be taken in execution under that writ, Lord Romilly stated, that he could see no steps by means of which the creditor could claim the assistance of the court under this act. And that he had serious doubts whether 1 & 2 Vict. c. 110, s. 13, had not been repealed. (Re Duke of Newcastle, L. R., 8 Eq. 706.) Wood, V.-C., however (in speaking of the intention of the legislature in passing 27 & 28 Vict. c. 112), said, that it could not have been intended that all the remedies given by 1 & 2 Vict. c. 110, should be swept away by a side wind. The intention must have been simply, that all those remedies which a judgment creditor can affect by means of a writ of elegit must be exercised by him before he can come in under the act. (Re Cowbridge R. Co., L. R., 5 Eq. 416.) See, further, the note to sect. 4, post. As to the necessity of issuing a writ of elegit and obtaining a return to the writ, see Wallis v. Morris, 12 W. R. 997; Godfrey v. Tucker, 33 Beav. 280; Partridge v. Foster, 34 Beav. 1. not issued execution. It has been held by Lord Romilly, M. R., that judgment creditors of a Judgment cremortgagor, whose judgments do not affect the mortgaged land at the date ditors of mortof the decree in a foreclosure suit, are entitled to redeem if they acquire a gagor who have charge on the land by issuing writs of elegit, and obtaining a return from the sheriff within six months from the date of the decree. (Mildred v. Austin, L. R., 8 Eq. 220.) This, however, has been disapproved by Malins, V.-C., who has held, that judgment creditors who have not issued execution are not necessary parties to foreclosure suits. (Re Bailey, 17 W. R. 393; Earl of Cork v. Russell, L. R., 13 Eq. 210.) Where mortgagees of real estate were about to sell under their power, Sale by mortand a bill was filed by a judgment creditor of the mortgagor (who had gagees. issued and registered a writ of elegit, and delivered the same to the sheriff) to restrain the mortgagees from paying over the balance of the purchasemoney to the mortgagor, the court granted the injunction. (Thornton v. Finch, 4 Giff. 515.) S. SS 27 & 28 Vict. c. 112, s. 1. Tacking. Interpretation of terms. Writs of execution to be registered in manner prescribed by 23 & 24 Vict. c. 38. Creditor to whom execution en titled to obtain summary order from Court of Chancery for sale. It has been held, under this act, that a mortgagee without notice of the issue of a writ of elegit is not entitled to tack a subsequent charge to his first mortgage on redemption by the tenant by elegit. (Champneys v. Burland, 19 W. R. 148.) 2. In the construction of this act the term "judgment" shall be taken to include registered decrees, orders of courts of equity and bankruptcy, and other orders having the operation of a judgment; and the term "land" shall be taken to include all hereditaments, corporeal or incorporeal, or any interest therein; and the term "debtor" shall be taken to include husbands of married women, assignees of bankrupts, committees of lunatics, and the heirs or devisees of deceased persons. 3. Every writ or other process of execution of any such judgment, statute, or recognizance, by virtue whereof any land shall have been actually delivered in execution, shall be registered in the manner provided by an act passed in the session of the twenty-third and twenty-fourth years of her present Majesty, intituled "An Act to further amend the Law of Property," but in the name of the debtor against whom such writ or process is issued, instead of, as under the said act, in the name of the creditor; and no other or prior registration of such judgment, statute, or recognizance shall be or be deemed necessary for any purpose; and no reference to any such prior registration shall be required to be made in or by the memorandum or minute of such writ or other process of execution which shall be left with the senior master of the Court of Common Pleas for the purpose of such registry (b). (b) The writ may be registered prior to the date of the sheriff's return. (Champneys v. Burland, 19 W. R. 148.) 4. Every creditor (c) to whom any land of his debtor shall land delivered in have been actually delivered in execution (d) by virtue of any such judgment (e), statute, or recognizance, and whose writ or other process of execution shall be duly registered, shall be entitled forthwith, or at any time afterwards while the registry of such writ or process shall continue in force, to obtain from the Court of Chancery, upon petition in a summary way, an order for the sale of his debtor's interest in such land, and every such petition may be served upon the debtor only; and thereupon the court shall direct all such inquiries to be made as to the nature and particulars of the debtor's interest in such land, and his title thereto, as shall appear to be necessary or proper (ƒ); and in making such inquiries, and generally in carrying into effect such order for sale, the practice of the said court with respect to sales of real estates of deceased persons for the payment of debts shall be adopted and followed, so far as the same may be found conveniently applicable. Plaintiff in ad (c) Where an order was made in an administration suit for payment ministration suit into court of sums found due from an executor; and default having been made in payment, sequestration issued at the instance of the plaintiffs, and possession was taken of the executor's lands by the sequestrators: it was not a creditor. |