Chap. XVI. Companies Act, 1908, or a deed of charge to cover such debentures, are not bills of sale within the scope of the Bills of Sale Act, 1878 (0), for they are not secret documents, or documents of the class by which frauds were perpetrated upon creditors by means of secret bills of sale (p).

Register of mortgages.

Registration

of mortgages

Limited companies are required to keep a register of mortgages and charges specifically affecting their property (q), and to allow any person to inspect it (r) and take copies (s).

Every mortgage or charge created (t) by a registered company and charges. must be registered with the registrar of companies (u), if it is(1) for the purpose of securing any issue of debentures, or (2) on uncalled capital, or (3) created or evidenced by an instrument which, if executed by an individual, would require registration as a bill of sale (x), or (4) on any land, wherever situate (y), or any interest (2) therein, or (5) on any book debts of the company, or (6) a floating charge on the undertaking or property (a). Unless registered within twenty-one days after its creation-is void against the liquidator or creditors of the company so far as any security upon its property or undertaking is thereby conferred, but without prejudice to any obligation to repay the money thereby secured (b). The registrar must give a certificate of registration, which is conclusive evidence of due registration (c); and a copy of the certificate must be endorsed by the company upon every debenture secured by the registered mortgage or charge (d). The register may be inspected by any person (e); and the company must keep at its office a copy of every instrument creating a mortgage or charge (f). The time for registration may be extended, and mistakes or omissions may be rectified by order of a judge (g).

Debentures may be made irredeemable, or redeemable only on Chap. XVI. the happening of a contingency, however remote, or on the ex- Perpetual piration of a period, however long (h).

debentures.

of contract to

A contract with a company to take up and pay for any of its Enforcement debentures may now be enforced by an order for specific per- subscribe for formance (i).

debentures.

Act, 1875.

The Local Loans Act, 1875 (k), contains provisions as to the Local Loans raising of loans by local authorities on the security of debentures, debenture stock, or annuity certificates. The Act does not confer any fresh powers of borrowing, but presupposes that the local authority has aliunde power to borrow in one or all of these forms.

(h) S. 103. See Southern Brazilian Rly. Co., [1905] 2 Ch. 78.

(i) S. 105. See South African

Territories v. Wallington, [1898] A.
C. 309; ante, p. 162.

(k) 38 & 39 Vict. c. 83.

Chap. XVII.

Judgment

creditor not

CHAPTER XVII.

EXECUTIONS.

WE proceed to discuss the methods of enforcing a judgment debt against the personal estate (a) of the debtor by execution (b). It is a general principle, with regard to both real and personal a purchaser. property, that a judgment creditor is not a purchaser, that he stands in the shoes of the judgment debtor, and can obtain by execution only such property as belongs to the debtor both at law and in equity (c); he must take subject to all prior interests created by the debtor for value, whether legal or equitable (d).

Execution

with leave.

Generally execution can be levied without leave, but in certain cases leave must be obtained, the most important instances being where six years have elapsed since the judgment or order, or any change has taken place, by death (e) or otherwise, in the parties entitled or liable to execution, or a husband is entitled or liable to execution on a judgment for or against a wife, or upon a judgment of assets in futuro, or a party is entitled to execution against any of the shareholders of a company on a judgment against such company or a public officer or other person representing the company (ƒ).

(a) As to methods of enforcing a judgment against the land, including chattels real, of the debtor, see M. L. R. P. 372 et seq.

(b) "Execution signifieth in law the obtaining of an actual possession of anything acquired by judgment of law, or by a fine executory levied, whether it be by the sheriff or by entry of the party; " Co. Litt. 154a. "An action is said in its proper sense to continue until judgment be given, and after judgment doth process of execution begin "; Co. Litt. 289a. See as to executions generally, R. S. C., Ord. XLII.; Anderson on Executions.

(c) Jennings v. Mather, [1902] 1 K. B. 1.

(d) See Whitworth v. Gaugain, 1 Ph. 728, Cr. & Ph. 325, and other cases, explained in Elph. & Cl. Searches, 10; Dolphin v. Aylward, L. R. 4 H. L. 500, per Ld. Hatherley, C.; Davey v. Williamson, [1898] 2 Q. B. 194; Simultaneous, &c. Syndicate v. Foweraker, [1901] 1 K. B. 771; Duck v. Tower Co., [1901] 2 K. B. 314.

(e) See Stewart v. Rhodes, [1900] 1 Ch. 386; Re Clements, [1901] 1 K. B. 260.

(f) See ante, pp. 284, 292, 307, and R. S. C., Ord. XLII. r. 23.

When a company is being wound up execution against the Chap. XVII. company cannot be issued or proceeded with without leave (g). In the case of the bankruptcy of a judgment creditor, the rights of a judgment creditor to issue execution, or to retain the proceeds of an execution already levied, are affected by the Bankruptcy Acts, 1883 and 1890 (h).

Execution may be effected by means of a writ or order addressed to the sheriff or other public officer, or by the Court making an order supplemental to the judgment, or giving special directions to some private person for the purpose of enforcing the judgment.

Fieri Facias.

A writ (i) of fieri facias (commonly called fi. fa.) is a writ given to a judgment (k) creditor by the common law. It is a writ addressed by the Crown to the sheriff (7), by virtue of which he seizes the goods and chattels of the debtor and sells them, and (in practice) applies the proceeds in payment to the judgment creditor of the amount due to him instead of paying it into Court as directed by the writ. At common law the sheriff could seize under a fi. fa. all the debtor's corporeal personal property (m) which can be sold (n), except wearing apparel actually in use and (perhaps) goods in the personal possession of the debtor (o). But it is provided by statute (p) that "the wearing apparel and bedding of any judgment debtor or his family and the tools and implements of his trade," not exceeding in the whole the value of 51., shall not be liable to seizure.

The common law rule as to things liable to seizure has been

(g) Companies Act, 1908 (8 Edw. 7, c. 69), ss. 140, 142, 211.

(h) 46 & 47 Vict. c. 52, ss. 9, 10, 45, 46, as amended by 53 & 54 Vict. c. 71, s. 11. See Woolford v. Levy, [1892] 1 Q. B. 772; Burns-Burns v. Brown, [1895] 1 Q. B. 324; Hasluck v. Clark, [1899] 1 Q. B. 699. Post, p. 360.

by a fi. fa., R. S. C., Ord. XLII. rr.
17, 24.

(7) In the County Court a warrant
of execution in the nature of a fi. fa.
is addressed to the high bailiff of the
Court, and in any other inferior Court
a warrant of the like nature is issued
to one of the bailiffs of the Court.

(m) Including leaseholds for years; Elph. & Cl. Searches, 68.

(n) Legg v. Evans, 6 M. & W. 36. (0) Sunbolf v. Alford, 3 M. & W. 254.

(p) 8 & 9 Vict. c. 127, s. 8. See Re Dawson, [1899] 2 Q. B. 54.

What can be

seized under a fi. fa.

Chap. XVII. extended by statute (g) to money (r), bank notes, cheques, bills of exchange, promissory notes, bonds, specialties, or other securities for money, and the sheriff can pay the money or bank notes to the execution creditor, and hold the other property so authorized to be seized as security for the amount directed to be levied by the fi. fa., with power to sue thereon at the time of payment. The sheriff cannot seize any of these things after, although the writ was delivered to him before, the death of the judgment creditor(s). Even since this Act deeds and writings cannot be seized unless they are securities for money (t).

Fixtures.

Emblements -crops.

Things hired by or pledged to debtor.

Railway companies. Soldiers.

Possession of sheriff.

Fixtures annexed to the freehold of the debtor cannot be seized (u); but, where the debtor is possessed of the land for a term of years, fixtures which may be removed by him can be seized (x). Emblements (y), i.e., those growing crops which pass to the executor as being the fruit of the industry of the owner, can be taken in execution (2), but not permanent growths, such as trees or grass. Things let to the debtor may be seized, but only his interest therein can be sold, and, if the sheriff sells more, he becomes liable to an action for the conversion (a). Goods pledged can be seized for the debt of the pledgor on payment of the debt to the pledgee, but not otherwise (b); and the interest of the pledgee can be taken in execution under a fi. fa. for the debt of the pledgee (c).

The rolling stock and plant of a railway company are in some cases protected from execution (d). The pay, arms, ammunition, equipments, regimental necessaries or clothing of all soldiers of the regular forces cannot be seized in execution (e).

By the effect of the seizure the sheriff acquires possession of the

(g) 1 & 2 Vict. c. 110, s. 12.

(r) I.e., coin, not debts due to the judgment debtor; Harrison v. Paynter, 6 M. & W. 387.

(s) Johnson v. Pickering, [1908] 1 K. B. 1.

(t) See, as to what are securities for money, Stokoe v. Cowan, 29 Beav. 637; Alleyne v. Darcy, 5 Ir. Ch. R. 55; Re Sargeant, 7 L. R. Ir. 66.

(u) Winn v. Ingilby, 5 B. & Ald. 625; 24 R. R. 503; Steward v. Lombe, 4 Moo. 283.

(x) Minshall v. Lloyd, 2 M. & W. 459; 46 R. R. 638; Poole's Case, 1

Salk. 368; Dumergue v. Rumsey, 2 H.

& C. 777. See notes to Elwes v. Maw, 2 Sm. L. C. 204.

(y) M. L. R. P. 23.

(z) See 56 Geo. 3, c. 50, s. 1.

(a) Consider Fenn v. Bittleston, 7

Ex. 152.

(b) Rogers v. Kennay, 9 Q. B. 592. (c) Re Rollason, 34 Ch. D. 495.

(d) 30 & 31 Vict. c. 127, s. 4; 38 & 39 Vict. c. 31, s. 1; 46 & 47 Vict. c. 39.

(e) 44 & 45 Vict. c. 58, s. 144. Post, p. 333.