ORDER XLVI. CHARGING OF STOCK OR SHARES AND DISTRINGAS. Order XLVI. order. 1. An order charging stock or shares may be made by R. 1. any Divisional Court, or by any judge, and the proceed- Charging ings for obtaining such order shall be such as are directed, and the effect shall be such as is provided by 1 & 2 Vict. c. 110, ss. 14 and 15, and 3 & 4 Vict. c. 82, s. 1. By 1 & 2 Vict. c. 110, s. 14:— and shares If any person against whom any judgment shall have been Judgment, entered up in any of Her Majesty's Superior Courts at West- a charge on minster shall have any Government stock, funds, or annuities, public stock or any stock or shares of or in any public company in England in com(whether incorporated or not), standing in his name in his own panies, &c., right, or in the name of any person in trust for him, it shall be by order of a judge. lawful for a judge of one of the Superior Courts, on the application of any judgment creditor, to order that such stock, funds, annuities, or shares, or such of them or such part thereof respectively as he shall think fit, shall stand charged with the payment of the amount for which judgment shall have been so recovered, and interest thereon; and such order shall entitle the judgment creditor to all such remedies as he would have been entitled to if such charge had been made in his favour by the judgment debtor, provided that no proceedings shall be taken to have the benefit of such charge until after the expiration of six calendar months from the date of such order." instance bank or company, to By s. 15-"Every order of a judge charging any Government Order of stock, funds, or annuities, or any stock or shares in any public judge to he company, under this Act, shall be made, in the first instance, ex made in first parte, and without any notice to the judgment debtor, and shall ex parte, be an order to show cause only; and such order, if any Govern- and, on noment stock, funds, or annuities, standing in the name of the judg- tice to the ment debtor in his own right, or in the name of any person in trust for him, is to be affected by such order, shall restrain the Governor operate as a and Company of the Bank of England from permitting a transfer distringas. of such stock in the meantime, and until such order shall be made absolute or discharged; and if any stock or shares of or in any public company, standing in the name of the judgment debtor in his own right, or in the name of any person in trust for him, is or are to be affected by any such order, shall in like manner restrain such public company from permitting a transfer thereof; and.that if, after notice of such order to the person or persons to be restrained thereby, or in case of corporations to any authorized agent of such corporation, and before the same order shall be discharged or made absolute, such corporation, or person or persons, shall permit any such transfer to be made; then, and in such case, the corporation, or person or persons, so permitting such transfer, shall be liable to the judgment creditor for the value or the amount of the property so charged and so transferred, or such part thereof as may be sufficient to satisfy his judgment; and that no disposition of the judgment debtor in the meantime shall be valid or Order XLVI. r. 1. Order may be discharged or varied. effectual as against the judgment creditor; and, further, that unless the judgment debtor shall, within a time to be mentioned in such order, show to a judge of one of the said Superior Courts sufficient cause to the contrary, the said order shall, after proof of notice thereof to the judgment debtor, his attorney, or agent, be made absolute; provided that any such judge shall, upon the application of the judgment debtor, or any person interested, have full power to discharge or vary such order, and to award such costs upon such application as he may think fit." By 3 & 4 Vict. c. 82, s. 1, passed to remove doubts as to the construction of the former Act, it is enacted that "The aforesaid provisions of the said Act shall be deemed and taken to extend to the interest of any judgment debtor, whether in possession, remainder, or reversion, and whether vested or contingent, as well in any such stocks, funds, annuities, or shares as aforesaid, as also in the dividends, interest or annual produce of any such stock, funds, annuities or shares; and whenever any such judgment debtor shall have any estate, right, title, or interest, vested or contingent in possession, remainder, or reversion, in, to, or out of any such stocks, funds, annuities, or shares, as aforesaid, which now are or shall hereafter be standing in the name of the AccountantGeneral of the Court of Chancery, or the Accountant-General of the Court of Exchequer, or in, to, or out of the dividends, interest, or annual produce thereof, it shall be lawful for such judge to make any order as to such stock, funds, annuities, or shares. or the interest, dividends, or annual produce thereof, in the same way as if the same had been standing in the name of a trustee of such judgment debtor; provided always, that no order of any judge as to any stock, funds, annuities, or shares standing in the name of the Accountant-General of the Court of Chancery, or the Accountant-General of the Court of Exchequer, or as to the interest, dividends, or annual produce thereof, shall prevent the Governor and Company of the Bank of England, or any public company, from permitting any transfer of such stocks, funds, annuities, or shares, or payment of the interest, dividends, or annual produce thereof, in such manner as the Court of Chancery or the Court of Exchequer respectively may direct, or shall have any greater effect than if such debtor had charged such stock, funds, annuities, or shares, or the interest, dividends, or annual produce thereof, in favour of the judgment creditor, with the amount of the sum to be mentioned in any such order." The things which may be charged under these sections are stock or shares which the judgment debtor has standing in his own name in his own right, or in the name of any person in trust for him (under the first Act), and (under the second) the interest of the judgment debtor, whether in possession, remainder, or reversion, vested or contingent, in such stock, funds, annuities, or shares, or in the dividends, interest, or annual produce of them. Such property standing in the name of the Accountant-General of the Court of Chancery in which the judgment debtor had any interest was also expressly included in the second Act. And s. 6 of the Court of Chancery (Funds) Act, 1872 (35 & 36 Vict., c. 44), seems to continue the same right as to property in the hands of the Paymaster-General, who now fills the place of the Accountant General, In Watts v. Porter, 3 E. & B. 743, the majority of the Court of Queen's Bench held that stock standing in the name of trustees for the judgment debtor, but which he had mortgaged, though no notice of the mortgage had been given to the trustees, might be charged, so as to give the judgment creditor priority over the mortgagee. But this view was disapproved in Beavan v. Lord Oxford, 6 D. M. & G. 507; and see Kinderley v. Jervis, 22 Beav. 1. If, notwithstanding the assignment, the judgment debtor still retains an equitable interest, that interest at least may be charged Baker v. Tynte, 2 E. & E. 897; Cragg v. Taylor, L. R. 2 Ex. 131. But where a testatrix left her whole estate and effects to trustees, in trust to pay debts and legacies, with a direction to pay the legacies as soon as her means could be converted into cash, and as to the residue in trust for the judgment debtor and others, it was held that the judgment debtor, though interested in the proceeds of the estate, was not interested in stock and shares of which the estate in part consisted, so as to make them chargeable: Dixon v. Wrench, L. R. 4 Ex. 154. In Fuller v. Earle, 7 Ex. 796, and Cragg v. Taylor, L. R. 1 Ex. 148, it was held that in Courts of Law it was no answer to an application to charge shares of which the judgment debtor was the registered holder, to show that he held them subject to trusts. But those cases only decided that a Court of Law would make the charge, leaving a Court of Equity to give to it its proper effect, and determine all questions of priority. See also Rogers v. Holloway, 5 Man. & G. 292. For the future, every Court must recognise equitable rights incidentally appearing : s. 24, sub-s. 4, of the Act of 1873, ante, p. 21. Whether this change may affect the granting of an order in such cases may give rise to a question. Formerly the application, if in aid of a Common Law judgment, could only be made to a Common Law Judge; a Judge in Chancery had no jurisdiction: Miles v. Presland, 4 M. & Cr. 431. The above rule is express that the application may be to any judge: see Hopewell v. Barnes, 1 Ch. D. 630, V. C. M.; and the order nisi in that case, sub nom. Re Prince, Hopewell v. Barnes, Seton on Decrees, p. 305, No. 3, ed. 4. Compare, however, s. 11, sub-s. 1, of the Act of 1875, ante, p. 104. A charging order, when made absolute, operates as from the date of the order nisi, and binds the stock charged as from that date; Haly v. Barry, L. R. 3 Ch. 452. Where an order had been made charging stock, and it appeared that the judgment debtor was dead when the order nisi was made, the Court discharged the order: Finney v. Hinde, 4 Q. B. D. 102. A charging order upon dividends of stock standing in the books of the Bank of England in the names of legal owners in trust for the judgment debtor does not throw any duty upon the Bank as to the distribution of the fund; it is bound simply to pay to the legal owners: Churchill v. Bank of England, 11 M. & W. 323. As to a trust for the judg ment debtor and others, see South Western Loan Co. v. Robertson, 8 Q. B. D. 17. A charging order cannot be made when the sum due is unascertained, nor for costs before taxation: Widgery v. Tepper, 6 Ch. D. 364, C. A.; overruling Burns v. Irving, 3 Ch. D. 291, V.-C. H. See Bagnall v. Carlton, 6 Ch. D. 130, V.-C. B. For the practice in Chancery as to charging orders on stock and shares, and stop orders in aid, before the Judicature Acts, see Dan. Chan. Pr., pp. 898, et seq., 1543, ed. 5; and for the present practice and forms of orders, see Seton, pp. 305, et seq., ed. 4; Stanley v. Stanley, 7 Ch. D. 589; and for forms of orders see App. H., forms Order XLVI. r. 1. Order XLVI. r. 1-6. R. 2. R. 2a. Nos. 25, 26, post, p. 587. By O. XXXV., r. 3a, proceedings relating to charging orders nisi may be taken in the district registry. As to charging orders under the Solicitors Act (23 & 24 Vict. c. 127), s. 28, see Owen v. Henshaw, 7 Ch. D. 385; Higgs v. Schrader, 3 C. P. D. 252. The application to charge the property recovered or possessed must be made to the judge who tried the action, and for a form see App. H., No. 27, post, p. 588. 2. Any person claiming to be interested in any stock transferable at the Bank of England standing in the name of any other person may sue out a writ of distringas pursuant to the statute 5 Vict. c. 8, as heretofore. Such writ to be issued out of any office of the High Court in London, where writs of summons are issued. This rule is repealed by the rules of April, 1880, and rules 2a to 7 of this order are substituted for it. The repealed rule allowed a distringas to be obtained only against the Bank of England. The new rules contain no such restriction. 2a. Order XLVI. Rule 2, is hereby annulled, and no writ of distringas shall hereafter be issued under the Act Distringas 5 Vict. c. 5, s. 5. Writ of not to issue. (R. S. C., April, 1880, r. 21.) R. 3. 3. In the following Rules of this order the expression "Company" includes the Governor and Company of the Bank of England and any other public company, whether Company incorporated or not, to which 5 Vict. c. 5, s. 5 applies, and the expression "stock" includes shares, securities, and money. Meaning of and (R. S. C., R. 4. Filing and service of affidavit and notice 4. Any person claiming to be interested in any stock standing in the books of a company may, on making an affidavit in or to the effect of the form B. 28 in the schedule hereto, and on filing the same in the Central as to stock. Office with a notice in or to the effect of the form B. 23 in the same schedule annexed thereto, and on procuring an office copy of the affidavit and a duplicate of the filed notice authenticated by the seal of the Central Office, serve the office copy and duplicate notice on the company. R. 5. state ad dress of claimant. 5. There shall be appended to the affidavit a note Affidavit to stating the person on whose behalf it is filed, and to what address notices (if any) for that person are to be sent. All such notices shall be deemed to have been duly sent if sent through the post by a prepaid letter directed to that person at the address so stated or at any such substituted address as hereinafter mentioned, whether the person to whom the notice is sent is living or not. Order 6. The address so stated may, from time to time, be altered by the person by or on whose behalf the affidavit XLVI. rr. 6-10. is filed, but all notices sent by post before the alteration to the address originally given or for the time being sub- R. 6. stituted therefor shall not be affected by any subsequent Alteration alteration. Any such alteration of address may be made of address. by service of a memorandum thereof on the Company in the manner required for service of a notice under this order. affidavit and 7. The service of the office copy of the affidavit and of R. 7. the duplicate of the filed notice shall for the period of service of five years from the day of service, but not longer, (unless led notice the notice is renewed as after mentioned), have the same to have same force and effect as if these Rules had not been made and of disa writ of distringas in respect of the stock had been duly tringas. issued under the Act 5 Vict. c. 5, s. 5. effect as writ 8. The original notice may be kept on foot from time R. 8. to time by a notice of renewal signed by the person by Renewal of whom or on whose behalf the original notice was given, notice. and served on the Company, provided the notice of renewal, if only one is given, is served before the expiration of five years from the day on which the original notice was served, or, if more than one is given, then before the expiration of five years from the day on which the last previous notice of renewal was served. such notice of renewal shall have the effect of continuing and keeping on foot the original notice for the period of five years from the day on which the first notice of renewal or the last previous notice of renewal (as the case may be) was served. Each of notice. 9. A notice filed under this Order may at any time be R. 9. withdrawn by the person by whom or on whose behalf it withdrawal was given on a written request signed by him, or its or discharge operation may be made to cease by an order to be obtained by motion on notice or by petition duly served by any other person claiming to be interested in the stock sought to be affected by the notice. transfer of 10. If, whilst a notice filed under this Order continues R. 10. in force, the Company on whom it is served receive from Effect of the person in whose name the stock specified in the notice request for is standing, or from some person acting on his behalf or stock or representing him, a request to permit the stock to be dividend. transferred or to pay the dividends thereon, the Company payment of |