« PreviousContinue »
A collision also not unfrequently arises between a sheriff and a receiver in the execution of their respective duties. Both are merely ministerial officers, and ought not therefore, as long as they are obeying the orders of their respective Courts, to incur any personal responsibility ; whereas the Court of Chancery, by not recognizing the sheriff as an officer of its own, even whilst executing its own writs of fi. fa. and elegit, subjects him to all the risks of contempt of court if he interferes with property over which a receiver has been appointed. Your Committee think that by adapting the Interpleader Acts to such cases as these, the sheriff might obtain the necessary indemnity by application to the Court out of which, in the particular case, the writ has issued; thereby throwing it on the interested parties to contest their priorities inter se. Resolution No. 5 is directed to this object.
Then the Law of Registration, as applied to judgments, requires, in the opinion of your Committee, to be placed on a new basis. As the law stands, judgments must, at Law and in Equity, be registered, in order to bind chattels real as well as realty, as against purchasers, mortgagees, and creditors.“ Terms being lands, within section 11 of 1 & 2 Vict. c. 110" (per Lord Campbell, 3 Ellis & Blackburne, 737), they are “ lands" also within section 19, and must be registered; when registered, however, they bind chattels real at Law, not from registration but from the delivery of the writ (3 Ellis & Blackburne, 737). Whereas at Law realty, and in Equity both chattels real and realty, are bound from registration. But neither at Law nor in Equity is registration necessary to bind either realty or chattels real, as against the debtor himself, or volunteers claiming through him. Your Committee see no reason why different rules should prevail at Law and in Equity on this point with reference to leaseholds, nor at Law between freeholds and leaseholds, which are often a scarcely less valuable property than freeholds. They propose to place the law on the foregoing heads on one uniform and intelligible footing; and to declare, as is suggested in resolutions Nos. 6 and 7, that registration shall be necessary as against all persons; and that judgments shall in all courts take effect from registration.
But an additional registration, if the realty or chattels real lie in a register county, seems objectionable. Such a protection to purchasers may have been expedient when communication with the provinces was difficult, and a Common Pleas Registration not required by law; but now, one search and one registration will surely answer every purpose ; the registration to be preserved being of course that in the Common Pleas. Resolution No. 8 provides for this.
But, perhaps, the most important alteration in the Law of Registration which your Committee would suggest is, the effect which they purpose to give it. They recommend, by resolution 9, that it shall be notice of a judgment to all persons claiming a subsequent interest in the debtor's realty or chattels real. This will prevent the plea of purchase for value without notice, as between mortgagees and purchasers on the one hand, and prior Judgment Creditors on the other, and prove auxiliary to the more general rules presently to be noticed for ascertaining equitable priorities. A Judgment Creditor's position, therefore, would then be as follows:-It would be incumbent on him, in order to insure priority for his charge against realty and chattels real, forthwith to register it in the Common Pleas, wherever such property may be situate, and in whosesoever hands the land may be which is sought to be affected by the judgment. And by such registration, as being accessible to them, and therefore placing them within the means of acquiring notice, all subsequent claimants would be deemed to have acquired such notice.
Resolution 10 proposes to abolish the obsolete securities of statutes merchant and staple, and recognizances in the nature of statutes staple. This would obliterate from the text-books much useless learning, which, so long as these are legal securities, must still encumber them, however improbable the chance of its being practically serviceable.
But recognizances to the Crown your Committee do not at present interfere with; Crown debts not being, as above stated, within the purview of this report.
Together with the above suggestions your Committee have made two others, which relate rather to the improvement of equitable than of legal doctrines, in connection with the Law of
VOL. II, NO, III.
Judgments ; namely, the adjustment of priorities between incumbrancers of land.
That Courts of Law should be inadequate to such an adjustment, is indeed a just cause of regret; but that in Equity not only no infallible canon exists to which to refer them, but that rules subversive of justice should have been so long tolerated, is surely an evil requiring immediate correction !
At present, four questions seem capable of presenting themselves in settling such priorities :-1. Where is the legal estate ? 2. Whose incumbrance is prior in point of time? 3. Had the subsequent incumbrancers notice? 4. Who has possession of the title-deeds?
With regard to the first of these, it appears to the Committee that the advantage given to the owner of the legal estate, by which he is frequently enabled, as the phrase is, to “squeeze out” a prior deserving claimaint, should no longer be allowed him, but that the rights between the claimants should be regarded as if the legal estate were out of the way. This is the object of resolution 11.
Whilst with regard to the three remaining questions, your Committee have, it is hoped, by the scheme, proposed in resolution 12, laid down a test, in unison with justice, by which to determine, as soon as the facts of each case have been ascertained, the law by which precedences should be regulated.
Among incumbrancers whose conflicting claims your Committee has thus attempted to settle, they would venture to include Judgment Creditors, notwithstanding the recent case of Bevan and Lord Oxford (W. R., fourth year, No. 15) has decided that they are not purchasers within 27th Eliz.
Resolution 13 would remove the inconvenience and delay which arise from the present practice of requiring new writs of execution with different venues to be issued into different counties; a practice disavowed in the case of writs of summons under the new practice, and it is believed disapproved by the present Chief Justice of the Common Pleas, on the debate of the Common Law Procedure Act, 1852.
If to consolidate into half a dozen octavos forty folio volumes of statutes be rightly accounted a national blessing, it is certainly
an important part of this work to codify in a single Act all that relates to judgments. Such an object your Committee propose in their concluding resolution, No. 14; and they beg most earnestly to press it upon the Society as a great desideratum in this instalment of fusion.
They have now only to submit seriatim the conclusions above referred to at which they have unanimously arrived) in the terms in which they conceive they ought to be embodied and adopted by the Society.
1. Provide for a Judgment Creditor a remedy in the Common Law Courts, by sale of all the estate and interest, whether legal or equitable, in realty or personalty, whether in possession, remainder, reversion, or expectancy, to which the debtor shall be entitled, or over which he shall have any power of disposition or appointment, exercisable for his own benefit.
2. Let choses in action be assignable at Law, as they now are in Equity.
3. Let charging orders of the Common Law Courts, obtained by Judgment Creditors under 1 & 2 Vict. c. 110, sec. 14, and 3 & 4 Vict. c. 82, sec. 1, be made available at Common Law, by sale, without the necessity of any proceedings being taken in equity.
4. Let a Judgment Creditor's remedies at Law and in Equity, under 1 & 2 Vict. c. 110, secs. 13 and 14, be immediate.
5. Extend the protection given to the sheriff by the Interpleader Acts to all questions arising out of executions, whether legal or equitable, the protection in each case to be afforded by the Court out of which the execution has issued.
6. Make registration, and after five years re-registration, of judgments in the Common Pleas necessary to bind realty and chattels real, as against the Judgment Debtor and all other persons whatever.
7. Let judgments take effect in all Courts against realty and chattels real from their dates of registration.
8. Abolish registration of judgments in the register counties, and let a Common Pleas registration be sufficient in all cases.
9. Let registration of judgments in the Common Pleas be notice of the interest of the Judgment Creditor to all persons interested in realty and chattels real, and having notice of the interest of the Judgment Debtor.
10. Abolish statutes merchant and staple, and recognizances in the nature of statutes staple, except recognizances to the Crown.
11. Let not the mere possession of the legal estate confer priority as between incumbrancers of realty or chattels real.
12. Let priority of time give the preference as between incumbrancers of realty and chattels real in every case, except as against a subsequent incumbrancer without notice, who has, at the time of the creation of his incumbrance, obtained bona fide possession of the title-deeds.
13. Let every writ of execution be available in all counties.
14. Consolidate and re-enact in one Act, having regard to the above resolutions, all the laws relating to judgments.
ART. IX.-LORD COCKBURN'S REMINISCENCES.
E pointed out with some particularity, in our last number,
the gross errors which prevail through this book, and showed how entirely it is to be disregarded as having any authority upon the matters of contemporary history, with which it assumes to deal. This is the most important light in which the subject is to be viewed; but there are other objections to the plan, as well as the execution, of the work. To these we must again advert, before recurring to the main ground of the statements—they may be generally termed stories—with which it abounds.
A person whose name, from his station, gives weight to his representations of characters or of facts, sitting down to write