operation before or after the act (Lawrence v. Lawrence, 26 Ch. D. 795; following Re Cline, 18 Eq. 213; see Patching v. Barnett, 43 L. T. 50; Re Thacker, 1873, W. N. 10).

The act applies as between the estate of a testator and a person claiming under a specific gift of real estate (Hasluck v. Pedley, 19 Eq. 271; Constable v. Constable, 11 Ch. D. 681) and of personal estate (Re Griffith, Carr v. Griffith, 12 Ch. D. 655; Pollock v. Pollock, 18 Eq. 329; correcting Whitehead v. Whitehead, 16 Eq. 528). Similarly the act applies between tenant for life and remainderman (Re Cline, 18 Eq. 213; Pollock v. Pollock, ib. 329).

33 & 34 Vict.

c. 35, s. 2.

As between vendor and purchaser the words of sect. 2 seem wide enough as between to give rise to an apportionment of rent when not provided for by the vendor and contract. See, however, Re Keillor (I. R. 6 Eq. 329), where a purchaser purchaser; of land was held liable to all rent payable after the purchase; and Black v. Homersham (4 Ex. D. 24), where a purchaser of shares was held entitled to all dividends declared after the contract (See further Dart, V. & P. 6th ed. 915).

It was held under the old law that the legal operation of a conveyance of land in the occupation of a tenant was to vest in the purchaser all the vendor's interest in rents not due at the date of conveyance (Flinn v. Calow, 1 Man & G. 589).

Where a condition on a sale of leaseholds provided that the purchaser should have possession on a certain day, all outgoings up to that day being cleared by the vendors, the vendors were held bound to pay an apportioned part of the current rent (Lawes v. Gibson, 1 Eq. 135).

As between landlord and tenant, where, during a quarter, a succession as between of interest occurs in the reversion, the case falls within the proviso at the landlord and end of sect. 4, and only one action can be brought for the entire rent. tenant. But where the succession occurs among the persons entitled to the term, the reversioner can sue each person liable for his proportion of rent (Swansea Bank v. Thomas, 4 Ex. D. 94). The act has not altered the date at which the rent becomes due (United Club Co., 60 L. T. 665; see sect. 3).

Under this act an apportionment has been made of rents (Capron v. Payments Capron, 17 Eq. 288; Roseingrave v. Burke, I. R. 7 Eq. 186; see South apportionable. Kensington Co-operative Stores, 17 Ch. D. 161); dividends on stock (Pollock v. Pollock, 18 Eq. 329); an occasional bonus on shares in an unincorporated life assurance society which was held to be a public company within sect. 5 (Re Griffith, Carr v. Griffith, 12 Ch. D. 655); a salary (Treacy v. Corcoran, I. R. 8 C. L. 40); but not of profits arising from a newspaper (Re Cox, 9 Ch. D. 159); nor of the profits of a private trading partnership (Jones v. Ogle, 8 Ch. 192); nor of parish rates (Re Wearmouth Co., 19 Ch. D. 640).

In the case of an annuity charged on the estate of a tenant for life and secured by a term, it was held under the old law that unless the annuitant had entered into possession he was not entitled to claim arrears of his annuity out of the apportioned rents belonging to the tenant for life's estate (Paget v. Anglesey, 17 Eq. 283).

The right specially conferred by 14 & 15 Vict. c. 25, s. 1, upon a remainderman to an apportioned part of the rent under a lease granted by a tenant for life seems now to belong to him under the general provisions of this act.

No apportionment of income will be made as between tenant for life and remainderman with reference to the variation in price of stock arising from the distance of a period of sale or investment from the last payment of dividend (Scholefield v. Redfern, 2 Dr. & Sm. 173; Freeman v. Whitbred, 1 Eq. 266; see Re Clarke, Barker v. Perowne, 18 Ch. D. 160).

The apportionment contemplated by the above act is one in respect of time. As to the apportionment (in a different sense) of rent-service and rent-charges in certain cases, see 22 & 23 Vict. c. 35, ss. 3, 10, post; and with respect to leases granted after the 31st of December, 1881, see Conv. Act, 1881, s. 12, post.

33 & 34 Vict. c. 35, s. 3. Apportioned part of rent, &c. shall be payable when the next

3. The apportioned part of any such rent, annuity, dividend, or other payment shall be payable or recoverable in the case of a continuing rent, annuity, or other such payment when the entire portion of which such apportioned part shall form part shall become due and payable, and not before, and in the case of a rent, annuity, or other such payment determined by reentire portion entry, death, or otherwise when the next entire portion of the same would have been payable if the same had not so determined, and not before.

shall have

become due.

Persons shall

have the same

remedies for recovering apportioned parts as for entire portions.

rents reserved in certain

4. All persons and their respective heirs, executors, administrators, and assigns, and also the executors, administrators, and assigns respectively of persons whose interests determine with their own deaths, shall have such or the same remedies at law and in equity for recovering such apportioned parts as aforesaid when payable (allowing proportionate parts of all just allowances) as they respectively would have had for recovering such entire portions as aforesaid if entitled thereto Proviso as to respectively; provided that persons liable to pay rents reserved out of or charged on lands or other hereditaments of any tenure, and the same lands or other hereditaments, shall not be resorted to for any such apportioned part forming part of an entire or continuing rent as aforesaid specifically, but the entire or continuing rent, including such apportioned part, shall be recovered and received by the heir or other person who, if the rent had not been apportionable under this act, or otherwise, would have been entitled to such entire or continuing rent, and such apportioned part shall be recoverable from such heir or other person by the executors or other parties entitled under this act to the same by action at law or suit in equity (4). (b) See Swansea Bank v. Thomas, 4 Ex. D. 94, ante, p. 443.

cases.

Interpretation of terms.

5. In the construction of this act—

The word "rents" includes rent-service, rent-charge, and
rent-seck, and also tithes and all periodical payments or
renderings in lieu of or in the nature of rent or tithe.
The word "annuities" includes salaries and pensions.
The word "dividends " includes (besides dividends strictly so
called) all payments made by the name of dividend, bonus,
or otherwise out of the revenue of trading or other public
companies (c), divisible between all or any of the members
of such respective companies, whether such payments
shall be usually made or declared at any fixed times or
otherwise; and all such divisible revenue shall, for the
purposes of this act, be deemed to have accrued by equal
daily increment during and within the period for or in
respect of which the payment of the same revenue shall be
declared or expressed to be made (d), but the said word
"dividend" does not include payments in the nature of a
return or reimbursement of capital.

(c) See Jones v. Ogle (8 Ch. 192); Re Griffith, Carr v. Griffith (12 Ch. D. 655)

(d) It was held under the old law that for the purpose of apportionment a dividend was to be taken as payable on the day on which it was actually payable, and not on the day on which it was declared (Hartley v. Allen, 27 L. J. Ch. 621).

33 & 34 Vict.

c. 35, s. 5.

6. Nothing in this act contained shall render apportionable Act not to any annual sums made payable in policies of assurance of any apply to description.

policies of

assurance;

7. The provisions of this act shall not extend to any case in which it is or shall be expressly stipulated that no apportion- stipulation ment shall take place (e).

(e) It was held under the similar words of sect. 3 of 4 & 5 Will. 4, c. 22, that inference from the whole tenor and context of the will was not sufficient to exclude the operation of the act (Tyrrell v. Clark, 2 Drew. 86).

nor where made to the contrary.

ENACTMENTS RELATIVE TO JUDGMENTS

AFFECTING REAL AND PERSONAL
PROPERTY,

CONTAINED IN THE 1 & 2 VICT. c. 110; 2 & 3 VICT. c. 11; 3 & 4 VICT. c. 82; 18 & 19 VICT. c. 15; 23 & 24 VICT. c. 38, ss. 1-5; 27 & 28 VICT. c. 112; 32 & 33 VICT. c. 62, ss. 24-28; 51 & 52 VICT. c. 51.

1 & 2 Vict.

c. 110, s. 11.

Sheriff empowered to

1 & 2 VICTORIÆ, CAP. 110.

An Act for abolishing Arrest on Mesne Process in Civil
Actions, except in certain Cases; for extending the
Remedies of Creditors against the Property of Debtors;
and for amending the Laws for the Relief of Insolvent
Debtors in England.
[16th August, 1838.]

WRIT OF ELEGIT.

11. And whereas the existing law is defective in not providing adequate means for enabling judgment creditors to obdeliver execu- tain satisfaction from the property of their debtors, and it is tion of lands expedient to give judgment creditors more effectual remedies to judgment against the real and personal estate of their debtors than they creditor. possess under the existing law: be it therefore further enacted, 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 Westminster, to take 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

1 & 2 Vict.

c. 110, s. 11.

lands.

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 exe-
cution shall have been sued out as a tenant by elegit is now
subject to in a court of equity: provided always, that such Proviso as to
party suing out execution, and to whom any copyhold or cus- copyhold
tomary lands shall be so delivered in execution, shall be liable
and is hereby required to make, perform and render to the lord
of the manor or other person entitled all such and the like pay-
ments and services as the person against whom such execution
shall be issued would have been bound to make, perform and
render, in case such execution had not issued; and that the
party so suing out such execution, and to whom any such copy-
hold or customary lands shall have been so delivered in execu-
tion, shall be entitled to hold the same until the amount of such
payments, and the value of such services, as well as the amount
of the judgment, shall have been levied: [provided also, that as Proviso as to
against purchasers, mortgagees, or creditors, who shall have become purchasers,
such before the time appointed for the commencement of this act, and creditors.
mortgagees
such writ of elegit shall have no greater or other effect than a writ of
elegit would have had in case this act had not passed] (d).

The words in italics have been repealed by 37 & 38 Vict. c. 96.
(d) Before this act the writ of elegit (which was founded on 13 Edw. 1,

c. 18, the Statute of Westminster), affected only one moiety of the judg-
ment debtor's lands. This section, however, has extended the remedy of

the judgment creditor to the whole of the debtor's lands. The section What may be expressly includes (1) copyholds which were not subject to execution taken under under the old law (See ante, p. 385). (2) Rectories and tithes, which an elegit. however are not ecclesiastical but lay (Hawkins v. Gathercole, 6 D. M. & G. 24; Bates v. Brothers, 2 Sm. & G. 509; Sweeny v. Fleming, 14 Ir. Ch. R. 23). (3) Land over which the debtor has a disposing power, as to which see the note to sect. 13 (post, p. 453). (4) Land held in trust for the debtor (As to this see before the act 29 Car. 2, c. 3, s. 10; Hunt v. Coles, 1 Comyns, 226; Steele v. Phillips, Beatty, 193; Hickson v. Aylward, 3 Molloy, 25). The present section did not change the nature of the trust estates which might be taken under an elegit, and the old authorities apply (Re Newcastle, 8 Eq. 705; Digby v. Irvine, 6 Ir. Eq. R. 155). According to these authorities it was held that the trust must be a clear and simple trust for the debtor only (Doe v. Greenhill, 4 B. & Ald. 684; Forth v. Norfolk, 4 Madd. 503; Harris v. Booker, 4 Bing. 96). A term held on trust to attend the inheritance might be taken (Doe v. Evans, 1 C. & M. 450); but with regard to a particular equitable interest in leaseholds it was said that it could not be taken (Re Newcastle, 8 Eq. 706). An equity of redemption cannot be taken either in freeholds (Beckett v. Buckley, 17 Eq. 435; Wells v. Kilpin, 18 Eq. 298; Anglo-Italian Bank v. Davies, 9 Ch. Div. 282; Plunket v. Penson, 2 Atk. 290; see Thornton v. Finch, 4 Giff. 515), or in leaseholds (Salt v. Cooper, 16 Ch. D. 544).

The following interests in land may, according to decided cases, be taken under an elegit:-An estate tail (Ashburnham v. St. John, Cro. Jac. 85; Gilb. Exec. 106; see Lewis v. Duncombe, 20 Beav. 398). An estate for