CHAPTER XVIII.

CHARGING GOVERNMENT OR OTHER STOCKS, &C., AND PROCEEDINGS IN LIEU OF DISTRINGAS.

1. Affidavit to obtain an Order for a Charge upon Government Stock, &c., of the Defendant (a).

[Title, &c., as usual; see post," Affidavits.”]

I, A. B., the above-named plaintiff [or X. Y., of

solicitor in

this action for the above-named plaintiff A. B., or as the case may be], make oath and say as follows:

1. The above-named defendant C. D. is justly and truly indebted to [me] in the sum of £

annum from the

on the defendant £

[and also interest thereon at £4 per centum per

] by virtue of a judgment entered up in this action 19-, whereby [I] recovered against the said for debt and £- for costs.

day of

2. There is now standing in the books of the Governor and Company of the Bank of England in the said defendant's name, in his own right [or in the name (or names) of E. F. (and G. H.) in trust for the said defendant], the sum of £- £2 per cent. British Government Consolidated Stock [or War Stock, or as the case may be, naming the stock, funds or annuities on which the charge is desired]. 3. [I am informed by

(state grounds of belief) and verily believe that] the said defendant is beneficially interested in the said [stock], and is entitled to the same [or to the dividends payable on the said (stock)] for his own use and benefit.

Sworn [&c., as usual; see post," Affidavits."]

This affidavit is filed [&c., as usual].

2. The like, to obtain an Order for a Charge on Shares in a Public

Company (a).

[Follow the preceding form, but describe the shares thus:] There are [one hundred] shares [or ordinary, or preference, or deferred shares, or as the case

(a) Charging of Stock or Shares.]-By R. S. C., Ord. XLVI., r. 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 shall be such as is provided, by the Acts 1 & 2 Vict. c. 110, ss. 14 and 15, and 3 & 4 Vict. c. 82, s. 1."

By 1 & 2 Vict. c. 110, s. 14, it is provided that "If any person against whom any

may be, describing the shares accurately] now standing in the name of [&c., see the preceding form], in a certain public company in England, called the Company [Limited].

judgment shall have been entered up in any of her Majesty's superior Courts at Westminster shall have any government stock, funds, or annuities, or any stock or shares of or in any public company in England (whether incorporated or not), standing in his name in his own right, or in the name of any person in trust for him, it shall be lawful for a Judge of one of the superior Courts, on the application of any judgment creditor, to order that such stock, funds, annuities or shares, or such of them or such part thereof respectively as he shall think fit, shall stand charged with the payment of the amount for which judgment shall have been so recovered, and interest thereon; and such order shall entitle the judgment creditor to all such remedies as he would have been entitled to if such charge had been made in his favour by the judgment debtor, provided that no proceedings shall be taken to have the benefit of such charge until after the expiration of six calendar months from the date of such order."

By s. 15, “Every order of a Judge charging any government stock, funds, or annuities, or any stock or shares in any public company, under this Act, shall be made, in the first instance, ex parte, and without any notice to the judgment debtor, and shall be an order to show cause only; and such order, if any government stock, funds or annuities, standing in the name of the judgment debtor in his own right, or in the name of any person in trust for him, is to be affected by such order, shall restrain the Governor and Company of the Bank of England from permitting a transfer of such stock in the meantime, and until such order shall be made absolute or discharged; and if any stock or shares of or in any public company, standing in the name of the judgment debtor in his own right, or in the name of any person in trust for him, is or are to be affected by any such order, shall in like manner restrain such public company from permitting a transfer thereof; and if, after notice of such order to the person or persons to be restrained thereby, or in case of corporations to any authorized agent of such corporation, and before the same order shall be discharged or made absolute, such corporation, or person or persons, shall permit any such transfer to be made; then, and in such case, the corporation, or person or persons so permitting such transfer, shall be liable to the judgment creditor for the value or the amount of the property so charged and so transferred, or such part thereof as may be sufficient to satisfy his judgment; and no disposition of the judgment debtor in the meantime shall be valid or effectual as against the judgment creditor; and, further, that unless the judgment debtor shall, within a time to be mentioned in such order, show to a Judge of one of the said superior Courts sufficient cause to the contrary, the said order shall, after proof of notice thereof to the judgment debtor, his attorney, or agent, be made absolute; provided that any such Judge shall, upon the 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."

By 3 & 4 Vict. c. 82, s. 1, it is provided that the aforesaid provisions "shall be deemed and taken to extend to the interest of any judgment debtor, whether in possession, remainder, or reversion, and whether vested or contingent, as well in any such stocks, funds, annuities, or shares as aforesaid, as also in the dividends, interest or annual produce of any such stock, funds, annuities, or shares; and whenever any such judgment debtor shall have any estate, right, title, or interest, vested or contingent in possession, remainder, or reversion, in, to, or out of any such stocks, funds, annuities, or shares, as aforesaid, which now are or shall hereafter be standing in the name of the Accountant-General of the Court of Chancery, or the Accountant-General of the Court of Exchequer, or in, to, or out of the dividends, interest, or annual produce thereof, it shall be lawful for such Judge to make any order as to such stock, funds, annuities, or shares, or the interest, dividends, or annual produce thereof, in the same way as if the same had been standing in the name of a trustee of such judgment debtor : Provided always, that no order of any Judge as to any stock, funds, annuities, or shares standing

3. Order Nisi, charging Government Stock, &c. (b).

[Title, &c., as usual.]

Upon hearing the [solicitor for the] above-named plaintiff [A. B.], and upon reading the affidavit of [the said A. B.], filed the

day of

debt and £

19—, whereby it appears that [here set out the substance of the affidavit, e.g., that] on the day of , 19, the [said] plaintiff recovered judgment herein against the defendant [C. D.] for the sum of £ costs, and that the said defendant is still indebted to the said plaintiff in the said sums so recovered,* and that there is standing in the books [&c., as in paragraph 2 of the affidavit, form No. 1, supra] :

It is ordered that, unless sufficient cause be shown to the contrary before the Judge in Chambers, Central Office, Royal Courts of Justice, Strand, London, onday, the o'clock in the

day of

19—, at

ncon, the defendant's interest in the said [stock] so standing as aforesaid shall, and that the same in the meantime do, stand charged with the payment of the above-mentioned amount due on the said judgment.

4. Order Nisi charging Shares in Public Company (b).

[Follow the preceding form, down to the asterisk, then proceed thus:] and that there are [one hundred] shares [or ordinary, or preference, or deferred shares, or as the case may be, describing the shares as they are described in the affidavit] now standing in the name of [&c., as in the affidavit] in a certain public company in England, called the

with the affidavit]:

It is ordered [&c., as in preceding form].

Company [let all this agree

in the name of the Accountant-General of the Court of Chancery, or the AccountantGeneral of the Court of Exchequer, or as to the interest, dividends, or annual produce thereof, shall prevent the Governor and Company of the Bank of England, or any public company, from permitting any transfer of such stocks, funds, annuities, or shares, or payment of the interest, dividends, or annual produce thereof, in such manner as the Court of Chancery or the Court of Exchequer respectively may direct or shall have any greater effect than if such debtor had charged such stock, funds, annuities, or shares, or the interest, dividends, or annual produce thereof, in favour of the judgment creditor, with the amount of the sum to be mentioned in any such order."

(b) The application for the order nisi is made ex parte, on affidavit, to a Master in Chambers; and the application for the order absolute is made to the Judge in Chambers (the Master having no jurisdiction; see Ord. LIV., r. 12 (1)). When made absolute, the order takes effect from the date of the order nisi (Brereton v. Edwards, 21 Q. B. D. 488. The above form, No. 3, is framed from that given in R. S. C., App. K., No. 27.

5. Notice of the Order Nisi to the Bank of England (c).

In the High Court of Justice.

To the Governor and Company of the Bank of England.

Take notice that an order nisi, a copy whereof is hereto annexed [annex a copy], has been made in the above action, and that the said order operates to restrain you from permitting a transfer of the [stock] referred to in the said order until such order shall be made absolute or discharged.

To the

Yours, &c., X. Y.,
Of

Solicitor for the plaintiff A. B.

6. The like Notice to a Public Company (r).

[Heading as in preceding form.]

Company [Limited] and to their secretary.

Take notice [&c., as in preceding form].

7. Affidavit of Notice to Judgment Debtor of Order Nisi (d).
[Title, &c., of action as usual.]

I, C. C., of

[clerk to X. Y., of the same place], solicitor in this action for the above-named plaintiff A. B., make oath and say as follows:[If the service was on the solicitor, say:] I did on the

day of

19-, before the hour of six [or, if the service was on Saturday, two] in the afternoon, serve D. Z., the solicitor in this action for the abovenamed defendant C. D., with notice of the order herein, dated the day of, 19, now produced and shown to me, and marked A., by delivering a true copy of the said order to, and leaving the same with, the said D. Z. personally [or with a clerk (or servant) of the said D. Z.] at his office, situate at [insert address], being the address for service in this action. [If the defendant was served, say:] I did on the

19-, at

day of

[place of service], serve the above-named defendant C. D. with notice of [&c., as above], by delivering to and leaving with the said C. D. personally [or as the case may be] a true copy of the said order.

Sworn [&c., as usual].

This affidavit is filed [&c., as usual].

(c) See 1 & 2 Vict. c. 110, s. 15, supra. It is not usual for the bank or company, served with the notice, to attend the application to make the order absolute; nor, as a rule, will the costs of such attendance be granted.

(d) See 1 & 2 Vict. c. 110, s. 15, supra, whereby the order nisi is to be made absolute on proof of notice of the order nisi to the judgment debtor, his solicitor or agent, unless the judgment debtor shows sufficient cause to the contrary.

8. Summons by Third Person to have Order Nisi discharged or varied (e).

Master

of £

[Title, &c., of action as usual.]

made herein on the

[Formal parts as usual in application to Julge in Chambers] on the hearing of an application by E. F., of—————、 for an order that the order of day of, 19-, charging the sum stock [describe the stock], standing in the books of the Governor and Company of the Bank of England in the names of E. F. and G. H. [or as the case may be], and the dividends payable thereon, with payment of the sum of £, be discharged [or varied by variation desired] [on the ground that

application be]

Dated [&c., conclude as usual].

stating the

]. [And that the costs of this

9. Order for Issue as to Ownership of Shares (ƒ).

Upon hearing

[Title, &c., of action as usual.]

and upon reading the affidavit of

filed the

day of- -, 19: It is ordered that the said E. F. [the claimant] and the plaintiff A. B. proceed to the trial of an issue in the King's Bench Division of the High Court of Justice, in which the said E. F. shall be plaintiff and the plaintiff A. B. shall be defendant, and that the question to be tried shall be whether, at the date of the service of the said order nisi on the above-named C. D. was the owner of the [shares] transferred to the said E. F. [or as the case may be]. prepared and delivered by the plaintiff therein within ten days from this date, and be returned by the defendant therein within seven days, and be tried [in Middlesex]. And that the said charging order nisi be adjourned generally with liberty to apply. And that the costs of this application be reserved.

alleged to have been And that the issue be

10. Order discharging or varying the Order Nisi.
[Title, &c., as usual.]

Upon hearing. -, and upon reading the affidavit of day of -, 19: It is ordered that the order of Master

filed the

made herein

(e) By the 1 & 2 Vict. c. 110, s. 115, supra, the Judge has power, upon the appli cation of the judgment debtor, or any person interested, to discharge or vary the order nisi, and to deal with the costs of the application. It has been held that the application must be made before the order has been made absolute (Drew v. Willis, [1891] 1 Q. B. 450).

(f) If the title to the stocks or shares is disputed, the Judge may direct an issue to be tried between the claimant and the plaintiff, and adjourn the application to make the charging order absolute until after the issue is decided.