« PreviousContinue »
sequence of a party refusing to consent to a judge at chambers making an order in the case, no authority for that purpose being given by the statute, are not allowed the Sheriff. If an issue be directed, the costs are either made to abide the event, or are reserved; in the former case, they will fall on the party who fails in the latter, they will be subsequently arranged, as may appear most just and reasonable. Thus, where they were reserved, and the issue was as to five horses, and the plaintiff made out his claim only to two, the plaintiff was allowed only a portion of the costs of the issue to be ascertained by the master, and he was held entitled to the costs of the original application, but not to those of the subsequent proceedings to obtain costs, inasmuch as his claim was too large. The Court may adjudicate as to the costs of appearing to the Sheriff's rule, and of an issue directed to be tried under it, although the trial of it has already taken place. When an issue is directed to be tried between an execution creditor and a claimant, and the latter refuses to try and abandons his claim, he will be liable to pay the execution creditor's costs down to the time of the claim being abandoned and of applying to take the money out of Court.d Where the Court ordered a claimant to proceed to trial, upon bringing a sum of money into Court, which he neglected to do, he was held liable to pay as well the costs occasioned by his false claim, as the costs of the application to Court to compel him to pay them, and that, too, although no previous application had been made to him; but the costs should be previously demanded, otherwise the costs of the application will not, in general, be allowed.f The Sheriff will be allowed the extra expenses he is put to by obeying the rule of Court directing an issue; and the expenses of a sale effected by the authority of the Court, although it appears on the trial of the issue, that the seizure was wrongful. When the issue is tried, the successful party is entitled, there being no order inconsistent therewith, to the money paid into Court, the costs of trying the issue, and the costs of the application to Court, although he has not applied to the opposite side for their consent to take the money out of Court.i "All rules, orders, matters, and decisions, to be Remedy for. made and done in pursuance of this Act, except only the affidavits to be filed, may, together with the declaration in the cause (if any) be entered of record, with a note in the margin expressing the true date of such entry, to the end that the same may be evidence in future times if required, and to secure and enforce the payment of costs directed by any such rule or order and every such rule or order so entered shall have the force and
a Clark v. Chetwode, 4 Dowl. 635. b Bowen v. Bramidge, 2 Dowl. 214; Lewis v. Holding, 3 Sc. N. C. 191; Carr v. Edwards, 8 Dowl. 30.
Seaward v. Williams, 1 Dowl. 528. d Wills v. Hopkins, 3 Dowl. 346.
Scales v. Sargeson, 3 Dowl. 707. f Ibid.
Armitage v. Foster, 1 Har. & W.
h Bland v. Delano, 6 Dowl. 293.
effect of a judgment, except only as to becoming a charge on any lands, tenements, or hereditaments; and in case any costs shall not be paid within fifteen days after notice of the taxation, and amount thereof given to the party ordered to pay the same, his agent or attorney, execution may issue for the same by fieri facias or capias ad satisfaciendum, adapted to the case, together with the costs of such entry, and of the execution if by fieri facias; and such writ or writs may bear teste on the day of issuing the same, whether in term or vacation; and the Sheriff or other officer executing any such writ shall be entitled to the same fees and no more as upon any similar writ grounded upon a judgment of the Court."a
A party entitled to costs, under the Interpleader Act, may pursue his remedy for their recovery either under that Act or under the 1 & 2 Vict. c. 110, s. 18; if he proceed under the latter Act, he need not enter the order for them of record.b Upon an application under an interpleader rule (as to get money out of Court, or the like) an affidavit should be entitled in the Application original cause.c The successful party is entitled to the costs of the application, though cause be shown in the first instance.d Where a judge at chambers has, under this Act, directed money to be paid into Court, to abide the event of an issue, and has reserved the question of costs, an application for the money must be made to a judge, and not to the Court.
for money out of
Definition JUDGMENTS are the sentences of the law,
pronounced by the Court, upon the matter contained in the record. In obtaining the fruits of a judgment, it is often necessary to ask whether it is for the Queen or for a subject? whether it is a judgment after verdict, or one by default? But of these, more hereafter in their proper places. The present inquiry is into the effect of a judgment upon the person, goods and chattels, and land of the debtor. What was its effect at common law? 1. The judgment created no at common lien upon the body. There was no capias for the debt or damage of a common person; the party having trusted him only with personal things, had his remedy only on the personal estate; the King had the interest in the body of his subject, and the lord in his feudatory or vassal, to be called out to war, or to labour for him, and therefore none but the King could imprison him.8 2. As to goods and chattels; the judgment, of itself, did not
a 1 & 2 W. 4, c. 58, s. 7.
b Cetti v. Bartlett, 1 Dowl. N. C. 928.
c Pariente v. Pennell, 7 Sc. N. C. 834.
d Cusel v. Pariente, 8 Sc. N. C. 240.
e Marks v. Ridgway, 1 Exch. 8.
f 3 Bl. Com. 395; 1 Inst. 39.
Gilb. Exec. p. 18.
bind them; because, as the books say, it was in force for a whole year, and it would have been hard that none, against whom judgment was pronounced, should buy or sell during that time. 3. As to the lands; the land was not liable to any debt, not only because the debt was contracted upon the personal security, but also that the lord might not have a stranger put upon him, for those only were to enjoy the land who came in by feudal donation. A private judgment, therefore, at common law, created no charge upon the land. But the lands themselves, being held mediately or immediately from the King, were as much subject to the King's demands, by the judgment of his Court, as if there had been a reservation on the original tenure, and therefore, in case of the Crown, it bound the lands from the time of the record of such debt, before execution issued; for if they had not determined that the record would bind the lands themselves as firmly as if it had been in the feudal patent, it would have happened that the subject, by an alienation of his land, might have defeated the King's execution, which would frequently have happened, since the King was to give notice, before he could seize the land. So stood the common law, before the stat. of West. 2, Under stat. (13 Edw. 1, c. 18,) which says, "When a debt is recovered or Westm. 2. acknowledged in the King's Court, or damages awarded, it shall be from henceforth in the election of him that sueth for such debt or damages, to have a writ of fieri facias unto the Sheriff of the lands and goods; or that the Sheriff deliver to him all the chattels of the debtor (saving only his oxen and beasts of his plough) and the one-half of his land, until the debt be levied according to a reasonable price or extent. And if he be put out of that estate, he shall recover by a writ of novel disseisin, and after by a writ of redisseisin if need be."f As the books say, there was no inconvenience that the judgment Effect of in a private case should bind the lands from the time of the upon lands judgment, as it did before in the King's debts, since they might real. search the records of the King's Courts for the one as well as for the other. By this stat., a judgment became a general lien upon all the debtor's lands, which he then had, or which he might afterwards acquire; this general lien could not be avoided by any subsequent act of the debtor, not even by an alienation
a See 3 Rep. 11; Dyer, 89, 49, 344; Giles v. Grover, 9 Bing. 285: and see the remarks hereafter upon the Stat. of West. 2, and the 1 & 2 Vict. c. 110.
b Herbert's ca., 3 Rep. 12. Debts of
record bind the debtor's land from the time of his becoming in debt to the Queen; 2 Roll. Abr. 156 (B.), pl. 1; 2 Wms. Saund. 70e. Debts not of record bind his lands from the time they are entered into; 33 H. 8, c. 39; Giles v. Grover, 9 Bing. 285.
c Gilb. Exec. p. 8: and see Rex v. Allnutt, 16 East, 279; Swain v. Morland, 1 B. & B. 370; 2 Wms. Saund. 69, and 1 ib. 219h.
d That is, ad invitum, or by confession, Doe v. Carter, 8 T. R. 61.
e This moiety of the land was extended to the whole by 1 & 2 Vict. c. 110, s. 11.
f As to the legal import of the word lands, see post, "Elegit."
for valuable consideration, without notice." As by fiction of law, the judgment had relation back to the essoign or first return day of the term, it affected, retrospectively, bona fide purchasers for value; the Stat. of Frauds (29 Car. 2, c. 3, ss. 14, 15) therefore provided, that the judgment should bind lands only from the signing thereof. Observe the expression, "bona fide purchasers for value;" for, as between creditors, the law remained as at common law, until the general rule of H. T. 4 Will. 4, c. 3, which declared," that all judgments, whether interlocutory or final, shall be entered of record of the day of the month and year, whether in term or in vacation, when signed, and shall not have relation to any other day: provided that it shall be competent for the Court or a Judge to order a judgment to be entered nunc pro tunc." Under the stat. of Westm. 2, a judgment operated as a general lien upon the debtor's land; but under the 1 & 2 Vict. c. 110, s. 13, it operates as a specific encumbrance. Now, although a judgment must now be considered, in equity, as equivalent for many purposes to a voluntary charge, yet a judgment creditor is not to be regarded in the light of a purchaser; he has neither jus in re nor jus ad rem; all that he has, by the judgment, is a lien upon the land.d Before the 1 & 2 Vict. c. 110, ss. 11 & 13, a judgment was no lien at law or in equity upon a legal term; and, until execution, the debtor might assign it at his pleasure; but it seems to be generally admitted, that all leaseholds are now bound by the judgment, equally with freeholds.f From what has been said, we may conclude-1. That at common law, in the King's case, a judgment bound the debtor's land from the time of the record of such debt. 2. That at common law a private judgment created no charge upon the land. 3. That under the statute of Westm. 2, a judgment became a general lien upon all the lands which the debtor had at the time of entering up the judgment, and upon all those which he subsequently acquired. 4. That under the 1 & 2 Vict. c. 110, a judgment became a specific lien or incumbrance, both at law and in equity, upon all the land which the debtor had, at the time of entering up such judgment, or at any time afterwards, or over which he then, or at any time afterwards, had a disposing power. 5. That before the 1 & 2 Vict. c. 110, a judgment was no lien at law or in equity upon any leasehold interest; but that, under that Act, such an interest is bound by the judgment, equally with Trust estate freeholds. As to the Statute of Frauds, in respect of lands. The lands of cestui-que use were made liable to execution by 1 Rich. 3, c. 1; but when uses came to be executed, and a new
a 2 Cruise's Dig. 49; Rolleston v. Morton, 1 Dru. & War. 195; Prideaux on Judgments, p. 10, 77: and see Whitworth v. Gaugain, 3 Hare, 416.
b Re-enacted by R. G. Hil. T. 1853, r. 56 and see Robinson v. Tonge, 3 P. Wms. 398.
c Rolleston v. Morton, 1 Dru. & War.
d Brace v. Duchess of Marlborough 2 P. Wms. 490.
e Shirley v. Watts, 3 Atk. 200; Forth v. Duke of Norfolk, 4 Mad. 506; Burdon v. Kennedy, 3 Atk. 739.
f Sugd. V. & P 382, &c.; 5 Jarm. Conv. (edit. Sweet) 48: and see 1 Dru. & War. 182.
estate arose, under the denomination of trust (under the 27 H. 8, c. 10), the 29 Car. 2, c. 3, s. 10, became necessary. It enacts, that it shall be lawful for every Sheriff or other officer, to whom any writ or precept is directed, at the suit of any person or persons of, for, and upon any judgment, statute, or recognisance, to do, make and deliver execution unto the party in that behalf suing, of all such lands, tenements, rectories, tithes, rents, and hereditaments, as any other person or persons are in any manner seised or possessed in trust for him against whom execution is so sued, like as the Sheriff or other officer might or ought to have done, if the said party against whom execution is so sued had been seised of such lands, &c. of such estate as they are seised of in trust for him at the time of the said execution sued; which lands, &c. by force and virtue of such execution, shall accordingly be held and enjoyed, freed and discharged from all incumbrances of such person or persons as shall be so seised or possessed in trust for the person against whom such execution shall be sued; and then provides that the trust shall be assets in the hands of the heir. This was essentially altered, especially as to the time when the judgment affected the land, by the 1 & 2 Vict. c. 110, s. 11, which enacts that, "it shall be lawful for the Sheriff or other officer to whom any writ of elegit, or any precept in pursuance thereof, shall be directed at the suit of any person, upon any judgment which at the time appointed for the commencement of this Act shall have been recovered, or shall be thereafter recovered in any action in any of Her Majesty's Superior Courts at W., to make and deliver execution unto the party in that behalf suing of all such lands, tenements, rectories, tithes, rents, and hereditaments, including lands and hereditaments of copyhold or customary tenure, as the person against whom execution is so sued, or any person in trust for him, shall have been seised or possessed of at the time of entering up the said judgment or at any time afterwards, or over which such person shall, at the time of entering up such judgment or at any time afterwards, have any disposing power which he might, without the assent of any other person, exercise for his own benefit, in like manner as the Sheriff or other officer may now make and deliver execution of one moiety of the lands and tenements of any person against whom a writ of elegit is sued out; which lands, tenements, rectories, tithes, rents and hereditaments, by force and virtue of such execution, shall accordingly be held and enjoyed by the party to whom such execution shall be so made and delivered, subject to such account in the Court out of which such execution shall have been sued out as a tenant by elegit is now subject to in a court of equity: Provided always, that such party suing out execution, and to whom any copyhold or customary lands shall be
a This section does not affect any equitable estate of which the debtor is not sole owner; Doe v. Greenhill, 4 B. & A. 684; Forth v. Duke of Norfolk,
4 Mad. 504: see also Harris v. Booker, 4 Bing. 96; nor an equity of redemption, see post, "Elegit."