Extended equitable remedies of creditor under new law.

(s) Sug. 665.

These provisions leave no doubt as to the rights in Equity of a judgment creditor of a tenant in tail.

So, in case of bankruptcy, the judgment creditor would seem, under the 13th sect. of the Act, to have all the rights of an equitable mortgagee, provided that the judgment was entered up twelve months before the issuing of the fiat (u): in the case of a judgment entered up under a warrant of attorney, and of the subsequent insolvency of the debtor, the judgment creditor's security is not affected by the 61st section of the Act (w).

The recent Bankruptcy Law Consolidation Act (x) avoids warrants of attorney to confess judgment in any personal action and being for or in respect of, wholly or in part, an antecedent debt or money demand and every cognovit actionem or consent to a judge's order for judgment in any action commenced by collusion with the bankrupt or not adversely, or purporting to be given in an action, but having been in fact given before the commencement of any action against him, in cases where the same respectively are given on or after the 11th October, 1849, and within two months before filing the petition in bankruptcy and the bankrupt at the time of giving the same is unable to meet his engagements; whether they be given in contemplation of bankruptcy or not.

Judgment, how now affected by bankruptcy.

(7) See Smith v. Hurst, 1 Coll. 705. As to the form of decree which may be obtained by a judgment creditor, see Carton v. Farlar, 8 Beav. 525.

(u) Sect. 13 of Act; and see Rolleston v. Morton, 1 Dru. & W. 195, and 12 & 13 Vict. c. 106, s. 184.

(w) Hotham v. Somerville, 9 Beav. 63.

(x) Sect. 135; and see ss. 136, 137.

The recent important case of Whitworth v. Gaugain (y) seems to show that the statements in the text books that a judgment under the new law operates as a specific charge upon the debtor's lands, must be received with very serious qualification, if in fact the expression be any longer applicable: this case established the following principle: viz., that where a debtor has merely a modified or qualified interest in the lands, as where he holds them wholly or in part as a trustee or subject to any previous incumbrance whether legal or merely equitable, the judgment must be considered as the statutory equivalent to his written agreement to charge, not the lands themselves, but merely that which he may rightfully charge, viz., his beneficial interest (if any) in them; so that the judgment creditor, although he subsequently acquire the legal estate, is postponed to a cestui que trust, or a prior equitable incumbrancer who advanced his money upon the security of the specific property.

In the recent case of Harris v. Davison (z), Sir L. Shad-well, V. C, with reference to the 13th section of the 1 & 2 Vict. c. 110, said, that he "could not conceive any set of words better adapted to describe every possible interest in lands of every possible description; they are as comprehensive as possible, and include lands of every tenure, except, perhaps, lands held in ancient demesne;" he then decided that a registered judgment operated as a charge upon the beneficial interest of the debtor (the grantee of a personal annuity) under a trust for sale of leaseholds for better securing the payment of the said annuity: this decision (which seems to involve the necessity of a search for judgments against a mortgagee upon taking a transfer of or paying off the mortgage debt) has, it is understood, been to a considerable extent disregarded in practice by conveyancers (a).

Judgment creditor postponed to cestui que trust or prior equitable incumbrancer.

Harris v. Davison.

Judgment whether a charge on mortgage debt.

(y) 1 Phil. 728; and see New-lauds v. Paynter, 4 Myl. & Cr. 408;

Langton v. Norton, 1 Ha. 549, 560. (z) 15 Sim. 128.

But an annuity given by a will, and charged upon, or issuing out of land, is an interest in land within the Statute (b); so that a search for judgments against such an annuitant will be necessary, if his annuity is to be released or dealt with.

The same, it is conceived, must be the rule as to a legacy charged upon land.

A judgment entered up against the vendor after a contract for sale, is, as formerly, an equitable charge upon the unpaid purchase-money; although execution cannot be levied upon it (c); and so, upon a sale by a mortgagee, the surplus proceeds of sale are charged by judgments entered up against the mortgagor subsequently to the mortgage id).

By the 18th section of 1 & 2 Vict. c. 110, 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 (e), 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 the 19th and 21st sections of the same Act, in order that any judgment, decree, order, or rule, may become operative under the Act as against purchasers, mortgagees, or creditors, a memorandum thereof must be left for registration (f) with the Senior Master of the Common Pleas at Westminster; or, (in the case of a judgment obtained in the Courts of Lancaster or Durham,) with the prothonotary, or deputy prothonotary, or other appointed officer of such Courts respectively; and by the 2 & 3 Vict. c. 11, the old dockets were closed, and judgments then docketed were not to affect lands, etc, as against purchasers, mortgagees, or creditors, after the 1st August, 1841, until a memorandum thereof was left for registration at Westminster under the 1 & 2 Vict. c. 110; and as respects judgments registered at Westminster, a fresh memorandum was required to be left for registration every five years (g); so that in no case need a search at Westminster extend back for more than five years; but the search for the five years preceding the purchase should be made, not only as against the present vendor, but also against former owners, although more than five years may have elapsed since they parted with the property.