Extended equitable operation of judgments under the Judgments Act, 1838.

(s) As to leaseholds being included in this section, see Avison v. Holmes, (1861) 1J. &H. 530, 544. (t) Which, it seems, excludes a power of testamentary appointment.

What are judgments within the Acts :By s. 18 of the Judgments Act, 1838, decrees and orders of Courts of Equity, and all rules of Courts of Common Law, and all orders of the Lord Chancellor, or of the Court of Review (while it existed) in matters of bankruptcy, and all orders of the Lord Chancellor in matters of lunacy, whereby any sum of money, or any costs, charges or expenses, shall be payable to any person, are to have the effect of judgments. And by s. 22, judgments, etc, of certain inferior Courts of record may be removed into the superior Courts; and are there to be registered; and thereupon are to become binding as judgments of such superior Courts (2).

Certain decrees and orders have the effect of judgments.

Judgments of inferiorCourts may be removed.

But the Judgments Act, 1864, has provided a more summary remedy, in Equity, for the judgment creditor. By s. 4 it is enacted, that every creditor, to whom any land of his debtor shall have actually been delivered in execution (a) by virtue of any judgment under that Act, shall be entitled forthwith, or at any time afterwards, while the registry of such writ or other process shall continue in force, to obtain by originating summons (b), which is to be served upon the debtor, in a summary way, an order for sale of his debtor's interest in such land; and thereupon, the Court is to direct all necessary and proper inquiries as to the nature and particulars of the debtor's interest in the land, and his title thereto; and in making such inquiries, and generally in carrying into effect such order for sale, the practice of the Court, with respect to sales of real estates of deceased persons for the payment of debts, is to be adopted and followed, as far as the same may be found conveniently applicable. If, on making such inquiries, it appears that any other debt due on any judgment, etc, is a charge on the land, the creditor entitled to such charge (whether prior or subsequent to the charge of the petitioner) is to be served with notice of the order for sale, and after such service is to be bound thereby ; and the proceeds of such sale are to be distributed among the persons who may be found entitled thereto according to their respective priorities (c) ; and all parties claiming interest through the debtor are to be bound by the order for sale (d). These provisions are merely prospective; and a creditor, to whom the land has been delivered in execution under a judgment entered up prior to the Act, is not entitled to a summary order for sale (e). Where it is not clear that the debtor has a saleable interest in the land delivered in execution, the Court will not order an immediate sale; but will direct inquiries as to the nature of the debtor's interest: and if it should be found unsaleable, the case appears not to fall within s. 4 (f).

Summary-order for sale may now be obtained in Equity.

(u) See Smith v. Hurst, (1845) 1 Coll. 705 ; 23 L. J. Ch. 289.

(x) Derbyshire B. Co. v. Bainbridge, (1852) 15 Beav. 146.

(y) Holmes v. Milage, 1893, 1 Q. B. 551 ; 62 L. J. Q. B. 380; Harris v. Beauchamp Brothers, 1894, 1 Q. B. 801 ; 63 L. J. Q. B. 480.

(z) See the Judgments Act, 1855, s. 7.

(a) Re Duke of Newcastle, (1869) 8 Eq. 700; 39 L. J. Ch. 68. As to what amounts to actual delivery in execution, see Elph. & CI. on Searches and Inf. p. 1207.

(b) Re Harrison and Bottomley, 1899, 1 Ch. 465 ; 68 L. J. Ch. 208.

"When a sale will bo ordered.

But in order to bring a decree or order of a Court of Equity within the Judgments Act, 1838, it must be one "whereby any sum of money, or any costs, charges, or expenses, shall be payable to any person." Thus, a decree for an account, and for payment of what shall he found due thereon, does not entitle the person in whose favour it is made to obtain a charging order, pending the taking of the account (g) ; and a decree against an executor for payment of a certain sum to his testator's estate, with which he was to be charged in taking the accounts in a pending administration suit, was held not to constitute a judgment debt (A); also, a decree directing payment to the credit of a cause, is not within the Act (i); nor is a decree directing payment of costs a charge upon land, until the costs have been taxed, and the decree registered (k) ; but when this has been done, it is not necessary that there should be a further order to pay costs after taxation (/) ; and a certificate of the chief clerk, finding money due, is not an "order for payment " (m) ; so, the person who seeks to enforce as a charge on land a rule of a Court of Common Law directing payment of money, must be the person to whom the money is payable under the rule (n).

The decree or order must be for the payment of money.

(c) S. 5.

(d) S. 6.

(c) Re Isle of Wight Terry, (1865) 11 Jur. N. S. 279; 34 L. J. Ch. 194.

(f) Re Bishop's Waltham R. Co., (1867) 2 Ch. 382 ; and as to form of order for sale of superfluous lands of a railway company under this section, see Re Hull and Hornsea R. Co., (1866) 2 Eq. 262 ; 35 L. J. Ch. 838 ; Gardner v. L. C. & D. R. Co., (1867) 2 Ch. 385 ; Re Calne R. Co., (1870) 9 Eq. 658 ; and see Seton, 6th ed. 2073 ; and as to priorities between judgment creditors and debenture holders under this section, see Re Hull, Barnsley, §c. R. Co., (1888) 40 Ch. D. 119 ; 58 L. J. Ch. 205.

Secondly, as to what property of the debtor is affected by judgments under the statutory law:Under the provisions of the Judgments Act, 1838, and the succeeding Statutes, a creditor may now (except as against purchasers and mortgagees prior to the 1st October, 1838) take under an elegit the entirety (instead of a mere moiety) of the debtor's property ; and this right extends to copyholds, estates over which the debtor has only a general power of appointment, and leasehold estates; upon all of which the judgment can operate ; and it is said, that where the interest in a term of years is merely equitable, it is subject to the legal as well as the equitable remedy (o). Where the property is of such a nature that it cannot be taken in execution, as, e.g., an advowson, an estate in remainder, a reversionary interest, or an equitable estate, the judgment, or the writ of execution, prior to the Judgments Act, 1864, operated as an immediate charge upon the estate, instead of being, as formerly, a mere general lien (p) ; but under that Act was rendered ineffectual, if entered up after the 29th July, 1864, until delivery in execution; hence between that date and the 1st July, 1901, on which date the above-mentioned provision of the Judgments Act, 1864, was repealed, there could be no charge upon property of such a nature, until, in the case of estates in remainder (q) or reversion (r), the debtor's estate fell into possession, or, in the case of equitable estates in possession, the appointment of a receiver (s).