Divisional Court, or by any Judge, charging with payment of the amount for which judgment has been recovered, and interest thereon, any Government stock, funds, or annuities, or any stock or shares in any public co. in England (whether incorporated or not) standing in the judgment debtor's name in his own right, or in the name of any person in trust for him, or (3 & 4 V. c. 82, s. 1) in the name of the Acc. G. (since the Chancery Funds Act, 1872 (35 & 36 V. c. 44), s. 6, the Paymaster-General), or in which the judgment debtor has a vested or contingent interest, whether in possession, remainder, or reversion, and the dividends, interest, or annual produce of any such stock, &c. Such order entitles the judgment creditor to all such remedies as he would have been entitled to if the charge had been made in his favour by the judgment debtor; but no proceedings can be taken to have the benefit of the charge until after the expiration of six calendar months from the date of the order. As to stock, &c., standing in the name of the paymaster it is provided, by 3 & 4 V. c. 82, s. 1, that no such order is to prevent the Bank of England or any other public co. from permitting any transfer of such stock, &c., or payment of the interest, &c. thereof in such manner as the Court (of Chancery) may direct, or have any greater effect than if such debtor had charged such stock, &c., or interest, &c., in favour of the judgment creditor with the amount to be mentioned in such order. The meaning of this enactment is that the charge is to be as effectual as if the debtor had power to charge, and had charged, his interest on the stock, and therefore a charging order may be valid although the judgment debtor is a lunatic: Re Leavesley, (1891) 2 Ch. 1. A charging order is not a "transaction" protected by s. 49 of the Bankruptcy Act, 1883: In re O'Shea's Settlement, Courage v. O'Shea, (1895) 1 Ch. 325, C. A.; and see Wild v. Southwood, (1897) 1 Q. B. 317. There is no power under the section to make a charging order against the exor of a deceased judgment debtor, and quare whether judgment on which to ground a charging order can be obtained against such exor: Stewart v. Rhodes, (1900) 1 Ch. 386, C. A. Leave to issue execution under O. XLII, r. 23 (v. sup. p. 426), is not equivalent to a judgment for this purpose: S. C.

By 1 & 2 V. c. 110, s. 15, the charging order is to be made in the first instance ex parte and without any notice to the judgment debtor, and should be an order to show cause only; and such order, if any Government stock, funds, or annuities, or any stock or shares in any public co. standing in the name of the judgment creditor in his own right or in the name of any person in trust for him, are to be affected by such order, shall restrain the Bank of England or the public co. from permitting a transfer thereof in the meantime and until such order shall be made absolute or be discharged. If after notice of such order to the persons to be restrained thereby, or in case of corporations to any authorized agent of such corporation, and before the order shall be discharged or made absolute, such corporation or person shall permit any such transfer to be made, then and in such case the corporation or person so permitting such transfer shall be liable to the judgment creditor for the value or amount of the property so charged and so transferred, or such part thereof as may be sufficient to satisfy his judgment. No disposition of the judgment debtor in the meantime shall be valid as against the judgment creditor; and unless the debtor shall within a time to be mentioned in such order show cause to the contrary, the order shall, after proof of notice thereof to the debtor, his attorney, or agent, be made absolute; provided that the Judge shall, on application of the judgment debtor, or any person interested, have full power to discharge or vary such order and to award such costs upon such application as he may think fit. The judgment debtor is the only person who can show cause; his exor cannot: Stewart v. Rhodes, sup.

By O. XLVI, 1, an order charging stock or shares may be made by any Divisional Court, or by any Judge, and the proceedings for obtaining such order shall be such as are directed, and the effect such as is provided by the above Acts, 1 & 2 V. c. 110, ss. 14, 15, and 3 & 4 V. c. 82, s. 1.

An order enforcing payment of costs in lunacy by directing a transfer of Consols is not a charging order within the rule: Re Cathcart, (1893) 1 Ch. 466, C. A.

By r. 2, the writ of distringas under the Court of Chancery Act, 1841 (5 V. c. 5), s. 5, is no longer to issue; and rr. 4-11 contain provisions sub

VOL. I.

I I

stituting for such writ, and with the same force and effect, service by any person claiming to be interested in any stock (including shares, securities, and dividends thereon: rr. 3, 3a), standing in the books of a co. (including the Bank of England, and any other public co., whether incorporated or not: r. 3), of an office copy of the affidavit and duplicate of the notice made in form therein prescribed (R. S. C., App. B., Forms 22, 27), and filed as therein directed.

By 1 & 2 V. c. 110, s. 18, the effect of judgments was extended to all decrees or orders of Courts of Equity, and all rules of Courts of Common Law, and all orders of the L. C. or of the Court of review in Chancery, and orders of the L. C. in Lunacy, whereby any sum of money, or any costs, charges, or expenses should be payable to any person; and by 27 & 28 V. c. 112, s. 2 (which enables the creditor to whom any land of his debtor shall have been actually delivered in execution to obtain upon petition a summary order for sale), the term "judgment" includes registered decrees and orders of Courts of Equity and Bankruptcy, and other orders having the operation of a judgment (sect. 2); but the Act is not retrospective: Re Isle of Wight Ferry Co., 11 Jur. N. S. 279; 34 L. J. Ch. 194; 12 L. T. 263.

For an order to operate as a judgment, so as to give the right to a charging order, it must be an order for payment of a specific sum of money to some person: Dan. 751; Fisher on Mortgage, 237; and a mere order for an account of what is due in respect of an annuity and payment is not, pending the account, and until the amount has been ascertained, an order for payment so as to entitle the party to a charging order: Widgery v. Tepper, 6 Ch. D. 364, C. A.; Chadwick v. Holt, 8 D. M. & G. 584; nor is the Master's certificate finding money to be due, though (according to former practice) adopted by the Judge: E. Mansfield v. Ogle, 4 D. & J. 38; nor an order for payment of money to the credit of an action: Ward v. Shakeshaft, 1 Dr. & S. 269. But a charging order may be presently made though the judgment is for payment on or before a future day named: Bagnall v. Carlton, 6 Ch. D. 130; Younghusband v. Gisborne, 1 D. & S. 209.

In order to give effect to a decree or order of the Court of Chancery a charging order might be made by a Chancery Judge: Stanley v. Bond, 7 Beav. 386; but in order to give effect to a judgment at law upon a fund in the Court of Chancery, the practice was first to obtain a charging order from a Common Law Judge in Chambers, and then to apply in Chancery for a stop order as ancillary to the charging order: Miles v. Presland, 4 M. & Cr. 431; Hulkes v. Day, 10 Sim. 41; and see Re Nowell, 11 W. R. 897.

Under the new procedure a preliminary charging order need not be obtained by a person who has obtained judgment in another Division of the High Court before application for a stop order in the Ch. Div.: Hopewell v. Barnes, 1 Ch. D. 630; Shaw v. Hudson, 48 L. J. Ch. 689.

66

Sect. 14 of 1 & 2 V. c. 110, does not extend to money, and O. XLVI, 3, whereby the expression "stock" was defined as including shares, securities, and money," has been altered (August, 1888) by substituting the words "the dividends thereon" for "money."

But by way of equitable execution, and in aid of the power conferred by sect. 12 of 1 & 2 V. c. 110, of taking money, &c. under a fi. fa., a charging order can be made by a Judge of the Q. B. Div. upon cash standing to the credit of the debtor in the Ch. Div.: Brereton v. Edwards, 21 Q. B. D. 488, C. A. Such an order may, in a fit case, be made ex parte, and notice to the paymaster is sufficient without obtaining a stop order or the appointment of a receiver: Ib.; and v. sup. Form 3.

Applications for charging orders are now usually made by summons. For forms of summons and affidavit in support, see D. C. F. 461–463.

A charging order need not have been intituled in any cause or matter, but was sufficiently intituled "In the matter of the Act 1 & 2 V. c. 110, and of the Act 3 & 4 V. c. 82": L. Hastings v. Beavan, 10 W. R. 206; but a charging order made in the Ch. Div. on a fund in Court is intituled either in the action or matter to the credit of which the fund stands.

By O. LIV, 12, applications by summons for charging orders are excepted from the jurisdiction exercised by a Master in the Q. B. Div., and by a registrar in the Probate, Divorce, and Admiralty Division.

The six months' proviso in sect. 14 does not prevent the creditor from obtaining a stop order against receipt by the debtor within the six months of dividends on the stock charged: Watts v. Jefferyes, 3 Mac. & G. 372.

And within this period the judgment creditor might, it seems, file a bill for protection of his interest in the fund: Bristed v. Wilkins, 3 Ha. 235; but payment to the judgment creditor who has obtained a charging order would not, without consent of the debtor, be ordered on petition: Whitfield v. Prickett, 13 Sim. 259.

By the Partnership Act, 1890, s. 23 (v. sup. p. 424), a judgment creditor of a partner may obtain a charging order on the interest of the partner in the partnership property and profits. The procedure under the section is now regulated by O. XLVI, 1a, 1b, for which v. sup. p. 424.

EFFECT OF CHARGING ORDER.

After the charging order has been made absolute the Court has no jurisdiction to rescind or vary it: Drew v. Willis, (1891) 1 Q. B. 456; Jeffreyes V. Reynolds, 52 L. J. Q. B. 55; 48 L. T. 358.

A charging order, when made absolute, operates from the date of the order nisi, and can only be defeated by some prior charge, showing that it ought not to have been made; and a subsequent admon judgment, or order on a summons in an admon action directing payment out of a fund affected by the previous order nisi, will not have this effect: Haly v. Barry, 3 Ch. 452 (explaining Warburton v. Hill, Kay, 470); Brereton v. Edwards, 21 Q. B. D. 488, 495, C. A.; Re Womersley, Etheridge v. W., 29 Ch. D. 557; Re Bell, Carter v. Stadden, 54 L. T. 370; 34 W. R. 363; Stewart v. Rhodes, (1900) 1 Ch. 386, C. A.

But when an assignment has been perfected by notice to the trustees before paying the fund into Court, a subsequent judgment creditor does not, by obtaining a charging order on the fund in Court, get priority over the assignee who has not obtained such order: Re Bell, 34 W. R. 363; 54 L. T. 370; Brearcliff v. Dorrington, 4 D. & S. 122.

or

A charging order under sect. 14 creates such an incumbrance as will determine a life interest, limited to A. until he executes some assignment or act whereby the interest may be incumbered: Montefiore v. Behrens, 1 Eq. 171; "until he should do or suffer any act" whereby the dividends shall become payable to another person: Roffey v. Bent, 3 Eq. 759; and see Hurst v. H., 21 Ch. D. 278; but it is an involuntary alienation: Re Kelly's Settlement, West v. Turner, 59 L. T. 494 (and see Wild v. Southwood, (1897) 1 Q. B. 317), not a contract; and therefore the incumbrancer desiring to enforce it cannot obtain leave for service out of the jurisdiction: Moritz v. Stephen, 36 W. R. 779; 58 L. T. 850.

An order nisi charging shares under 1 & 2 V. c. 110, s. 14, is not, as between the creditor and the debtor's trustee in bankruptcy, an "execution against the goods of a debtor" within the Bankruptcy Act, 1883, s. 45: Re Hutchinson, 16 Q. B. D. 515.

And a charging order against the debtor will not affect property assigned by the debtor between the date of the judgment on which the charging order was obtained and the charging order: Scott v. L. Hastings, 4 K. & J. 633. And see Fish. Mort. 620; and inf. Chap. XLVII., "MORTGAGES." Mere notice of the charging order, though left and entered in the pay office (formerly office of the Acc. Gen.), did not operate as a stop order to prevent a transfer of the fund; and was of no avail against a stop order on the fund afterwards obtained: Warburton v. Hill, Kay, 470; but now under the Jud. Acts, and S. C. F. R., r. 99, notice is sufficient, and a stop order is no longer necessary: Brereton v. Edwards, 21 Q. B. D. 488, C. A.

On the question whether a charging order on stock standing in the name of a trustee in trust for the judgment debtor, gives the judgment creditor priority over a prior assignment without notice to the trustee, see Watts v. Porter, 3 E. & B. 743.

The opinion of the majority of the Q. B. that the assignment without notice was inoperative as against the subsequent charging order, has been 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. 370; 34 W. R. 363; 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.

And qualification shares of a director, of which other persons are beneficial owners, though held by him "in his own right" within sect. 14, cannot be charged: Howard v. Sadler, (1893) 1 Q. B. 1; Cooper v. Griffin, (1892) 1 Q. B. 740, C. A.; Pulbrook v. Richmond Cons. Mining Co., 9 Ch. D. 610.

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 Re Blakely Ordnance Co., 25 W. R. 111; 35 L. T. 617; 46 L. J. Ch. 367; 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; Re Ashton, W. N. (00) 109.

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. 1, C. A.

Maintenance for a lunatic will be allowed out of his fund in Court although the capital is thereby rendered insufficient for payment of creditors who have obtained charging orders: Re Plenderleith, (1893) 3 Ch. 332, C. A.; but this rule does not affect funds in the High Court, and in such case only the balance of the fund after satisfying the charge will be transferred to lunacy: Re Brown, Llewellin v. B., (1900) Ĭ Ch. 489.

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; and see Stewart v. Rhodes, (1900) 1 Ch. 386, C. A.; v. sup. p. 481.

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. 9; 37 W. R. 72.

Á 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; 10 W. R. 76.

Transfer of Consols was ordered, though not claimed or provided for by the order nisi: Ricketts v. R., W. N. (91) 29.

And as to charging orders, see Dan. 749 et seq.; Lewin, 987 et seq.; Fish. Mort. 239 et seq.; Edwards on Exton., 331 et seq.

SECTION II.-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 day of -, 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.

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