6 order the garnishee to show cause why he should not pay to the Chap. XVII. judgment creditor the debt due from him or so much as will satisfy the judgment debt.' Service of an order on, or notice of it to, the garnishee binds such debts in his hands. The debts which can be attached may be legal or equitable," payable at the present or at a future time; but they must be existing debts. Unliquidated damages, or an unascertained sum, or a debt to arise on a condition, or money which will be payable to the debtor by trustees when they have received it, but not yet received by them, or rent not yet due, cannot be attached; though rent which is due can be attached; 10 and debts that cannot be assigned cannot be attached. The pay of an officer in the army or navy, seamen's wages,12 and the wages of a servant, labourer, or workman, at any rate in an inferior Court, cannot be attached.13 11 14 9 If the garnishee does not pay into Court the sum that he ought to pay, and does not dispute the debt claimed to be due from him to the judgment debtor, the Court may direct execution to issue against him; but if he disputes his liability, the Court may direct the question to be tried. If it is suggested 15 that a third person has a lien or charge on the debt, the Court can order such person to appear, and may bar his claim or make such order as it thinks fit with respect to the lien or charge.16 Payment by the garnishee into Court, or to the judgment creditor on an order being made, or execution for such payment 17 levied upon him in the proceedings, is a valid discharge as against the judgment debtor to the amount paid or levied. It should be observed that the effect of a garnishee order is to place the judgment creditor in the shoes of the judgment debtor. He has, therefore, no better 1 R. S. C., Ord. XLV. r. 1. 2 lb. r. 2; Rogers v. Whiteley, (1892] A. C. 118. 3 Per Brett, M. R., Webb v. Stenton, 11 Q. B. D. 525. + Tapp v. Jones, L. R. 10 Q. B. 591. Jones v. Thompson, E. B. & E. 63; Dresser v. Johns, 6 C. B. N. S. 429. 6 Johnson v. Diamond, 11 Ex. 73; Richardson v. Elmit, 2 C. P. D. 9. Howell v. Metropolitan District R. Co., 19 Ch. D. 508. * Webb v. Stenton, 11 Q. B. D. 518. Holsham V. Passawar, Chitty's Archbold's Practice, 929 (4). 18 10 Mitchell v. Lee, L. R. 2 Q. B. 259. 192. 12 Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60), s. 163. 13 33 & 34 Vict. c.30; Booth v. Trail, 12 Q. B. D. 8; Gordon v. Jennings, 9 Q. B. D. 45. 14 Ord. XLV. rr. 3, 4. 15 Not necessarily by the garnishee; Roberts v. Death, 8 Q. B. D. 319. 16 Ord. XLV. rr. 5, 6. 17 Turner v. Jones, 1 II. & N. 878. 2 Chap. XVII. right than the latter, so that, if the judgment debtor has created an equitable charge on the debt attached, the judgment creditor takes the debt subject to the charge, even if the person entitled to the charge has not perfected his title by giving notice (ante, p. 128) to the garnisheee; and debts which have been assigned by the judgment debtor before the order, cannot be attached; nor the balance of a debt already attached under a garnishee order if it has been assigned, for a garnishee order binds only what the judgment debtor can honestly deal with without interfering with the interests of third persons. A debt attachment book, in which particulars of the attachment have to be entered, is kept in the Central Office, but there appears to be no penalty for omitting to make such entry." Charging order. Charging Order. Until the commencement of the present reign, stock or shares could not be taken in execution; but now a judgment creditor can obtain an order, called a "charging order," charging the judgment debt and interest upon the debtor's interest, whether in possession, remainder, or reversion, and whether vested or contingent, in any government stock, funds or annuities, or any stock or shares in a public company in England, or the dividends or interest thereof, whether being funds in Court or not, and whether standing in the debtor's name in his own right, or in the name of a trustee for him; and a charging order may be made upon cash in Court to the credit of the debtor.10 The order entitles the creditor to the same remedies as if the charge was made by the debtor. The effect of the order does not depend on the capacity of the debtor to make the charge, but on the validity of the judgment." No proceedings can be taken to enforce 1 Badeley v. Consolidated Bank, 34 Ch. 3 Yates v. Terry, [1902] 1 K. B. 527. 61 & 2 Vict. c. 110, ss. 14, 15; 3 & 4 9 8 Ic., to which he is beneficially entitled; Cooper v. Griffin, [1892] 1 Q. B. 740; Howard v. Sadler, [1893] 1 Q. B. 1; Fuller v. Earle, 7 Ex. 796. 9 South Western Co. v. Robertson, 8 Q. B. D. 17. 10 Brereton v. Edwards, 21 Q. B. D. 488. 11 Re Leavesley, [1891] 2 Ch. 1, where a charging order was made on a fund in Court belonging to a lunatic in respect of debts incurred before the lunacy; and Re Brown, [1900] 1 Ch. 489. payment of the debt by realizing the security until after six Chap. XVII. months from the date of the order, though the creditor can, in the meantime, obtain an order restraining the debtor from receiving the dividends accruing during the six months.1 In order to prevent the debtor from disposing of his interest, the charging order may be made in the first instance ex parte as an order nisi, and, when made absolute, the charge takes effect from the date of the charging order nisi. If the fund is in Court, notice of the order nisi must be given to the Paymaster-General.3 The charge conferred by the order affects only the interest that the debtor can, or could if sui juris, honestly assign; and, therefore, it confers no priority over incumbrances created before the order nisi, even if the incumbrancer has neglected (where the debtor's interest is equitable) to perfect his title by notice to trustees, or, if the fund is in Court, by obtaining a stop order.5 A judgment creditor who has obtained a charging order must, if he wishes to enforce the charge conferred by the charging order, institute an action for that purpose, for the Court cannot, by an order in the action in which judgment was recovered, direct a sale of the property charged." Equitable Execution-Receiver. 66 Where there is no remedy by ordinary process of execution, an Equitable order for a receiver may be obtained so as to give the judgment execution." creditor the same benefit which he would have got by execution. This is equitable relief and is not governed by the same rules as legal execution in the strict sense of the term. It is, however, "execution" within the meaning of the Judgment Extensions Act, 1868; and a receiver may be appointed in the case of a certificate of a Scotch judgment registered in the High Court." A receiver was appointed by the Court of Chancery in aid of a judgment at law when the plaintiff showed that he had sued out Chap. XVII. the proper writ of execution, and was met by certain difficulties. arising from the nature of the property, which prevented his obtaining possession at law.1 Since the Judicature Acts the Court which gave judgment can make the order, and it is not necessary to go through the formality of first issuing a writ of execution.2 Receiver. Judicature Act, 1873, 8. 25 (8). When obtainable. A receiver is a person appointed by the Court to receive the rents and profits or income of specified property, whether real, chattel real, or personal, or of any legal or equitable interest therein. By the Supreme Court of Judicature Act, 1873,3 the Court may appoint a receiver "in all cases in which it shall appear to the Court to be just or convenient that such appointment should be made.”+ This gives jurisdiction to appoint a receiver by way of equitable execution only when the circumstances of the case are such as would have enabled the Court of Chancery to make such an order before the Act, and does not give jurisdiction to appoint a receiver merely because it will be a more convenient mode of satisfying the judgment than the ordinary modes of execution." Equitable execution, therefore, can only be obtained where a debtor's property cannot be got at by the ordinary modes of execution. For instance, where the debtor's real property is subject to a mortgage; where specific chattels are subject to a mortgage bill of sale; or where it is wished to take in execution the interest of the debtor under a settlement of personalty, in which case the appointment of the receiver does not dispossess the trustees, but only renders it their duty to hand over to the receiver the property or income which they would be bound to hand over to the debtor if the receiver had not been appointed. A receiver will not be appointed of property which is inalienable by the debtor, such as inalienable pensions, or of future earnings. 1 Thompson v. Gill, [1903] 1 K. B. 2 Ango-Italian Bank v. Davies, 9 Ch. 8 It need hardly be said that the appointment of a receiver does Chap. XVII. not interfere with the rights of a prior incumbrancer, except that if the latter is not in possession he is not allowed to take posses- brances. sion without the leave of the Court after the receiver has gone into possession. The order appointing the receiver must clearly define the property of which he is to take possession,' for it is not the practice of the Court to appoint a receiver of a judgment debtor's property generally.2 An application for the appointment of a receiver by way of equitable execution must, generally, be made by summons; but there is jurisdiction to appoint upon an ex parte application, which will be exercised where there is danger that the property will disappear before a summons can be heard.3 The order appointing the receiver generally directs him to give security; he has to pay all moneys received by him into Court, and from time to time the moneys, after providing for costs and the receiver's remuneration, are paid out to the persons entitled thereto. The receiver by his appointment becomes an officer of the Court, and if he takes possession no one is entitled to interfere with him without an order of the Court.5 Prior incum Sequestration. Sequestration is a process in rem, not in personam, for the purpose of compelling obedience not only to an order or judgment for payment of money, but of any other order. Under the present Rules of the Supreme Court, where any person is by any judgment or order directed to pay money into Court or to do any other act in a limited time, and after due service of such judgment or order refuses or neglects to obey the same, the person prosecuting the judgment or order can, without obtaining any order for that purpose, issue a writ of sequestration against the estate |