1850.-Johnson v. Holdsworth.

s. 4, and 1 & 2 Vict. c. 110, s. 13) to redeem a mortgagee, in possession of lands in the West Riding of Yorkshire, whose mort. gage was made in 1846, and to foreclose the mortgagor.

On the claim coming on to be heard,

Mr. Amphlett, for the mortgagee, said that the mortgagor had confessed other judgments which had been registered pursuant to the 1 & 2 Vict. c. 110; and that, though they had not been registered pursuant to the 5 & 6 Anne, c. 18, the mortgagor, of course, had notice of them; and, therefore, the conusees ought to be made parties to the suit, in order that the mortgagee might not be called upon to account more than once: Davis v. Lord Strathmore.(a)

Mr. Bethell, for the plaintiff, said that Davis v. Lord Strath. more was a suit between a vendor and a purchaser; and that it was held, in that case, that, as the purchaser took his convey. ance with notice of an undocketed judgment against the vendor, the notice affected,his conscience, and, therefore, raised a personal equity against him: but that a personal equity was distinct from a charge on land; and that a judgment-creditor, whose iudgment was unregistered, had no jus in re; or, *in [*107] other words, had no charge upon or interest in the land

of his debtor; and, therefore, could not claim to redeem it if it was subject to a mortgage.

Mr. Amphlett:-The judgment-creditors, in this case, may regis ter their judgments to-morrow, and then they will take effect from the time when they were entered up.

Under the 13th section of the 1 & 2 Vict. c. 110, a judgmentcreditor has a lien on the land of his debtor, though his judg ment has not been rendered pursuant to the Act of Anne; and the only consequence of his not having registered his judg ment under the last-mentioned act, is, that a subsequent judg

!

1850.-Johnson v. Holdsworth.

ment-creditor may gain priority over him by registering his judg

ment.

Mr. Bethell:-If the judgment-creditors, who are said to be necessary parties to this suit, should register their judgments, they will, in effect, be brought into existence pendente lite; for judgments operate only from the time of their registration; and the plaintiff in a suit need not make any persons parties to it whose interests were acquired subsequent to the institution of it.

25th November.-THE VICE-CHANCELLOR:-This was a claim to redeem.

The plaintiff, Johnson, is a judgment-creditor of Holdsworth, who is the owner of the equity of redemption of certain [*108] lands in the West Riding of Yorkshire. *Johnson's

judgment has been duly registered at Wakefield, as required by 5 Anne, c. 18, s. 4: and he has served the mortgagee and Holdsworth, but no other parties. The mortgagee objects that he ought to have made subsequent judgment-creditors of Holdsworth, co-defendants. Johnson replies that their judg ments have never been registered as required by the statute of Anne. That being so, the question is, are they necessary parties?

Now, consider the question, first as it would have stood before the statute 1 & 2 Vict. c. 110.

The statute of Anne says no judgment shall affect lands in the West Riding, but only from the time of registry: therefore, before registration, a judgment-creditor has no right against the lands of his debtor, legal or equitable. The statute has no exception of equitable rights: but then it is said that equity puts parties, who have notice of unregistered judgments or incumbrances, in the same position as if they had been registered. This is stating the proposition too broadly. All that equity has done is this: where a purchaser has paid his money to a vendor, with notice of an unregistered judgment against that vendor,

1850.-Johnson v. Holdsworth.

there this court has held that such a purchaser shall not, to the prejudice of the judgment-creditor, shelter himself behind the registry acts, which were made to protect parties against charges of which they had no notice, and not against those which were known to them. Whether that was originally a line of decision conformable to the scope and policy of the Registry Acts in general, I need not inquire. But the equity so enforced is merely a personal equity, arising out of the character of vendor and purchaser; an equity affecting the conscience of a party paying *money with notice: and the doctrine has no ap- [*109] plication to a case like the present. A second mortgagee, filing a bill to redeem, is bound, for the security of the first mortgagee, and to prevent him from being called on to have the same account taken a second time against him, to bring before the court all the parties who might call for a redemption of the first mortgage; that is, the mortgagor and parties entitled under him to subsequent incumbrances. But, in the register counties, an unregistered judgment-creditor is not, either at law or in equity, an incumbrancer, although he has rights which, as against a party purchasing the estate and paying his purchase-money, with notice of the judgment, may give him the same benefit, in this court, as if he were an incumbrancer. This principle has, obviously, no application to the case of a plaintiff, a second incumbrancer, filing a bill to redeem. So that, on the law as it stood before the 1 & 2 Vict. c. 110, I think unregistered judg ment-creditors were not necessary parties to such a suit.

The only remaining question is, whether the case is varied by the late statute of 1 & 2 Vict. c. 110, s. 13: whether the effect of that statute is to make all judgment-creditors, unregistered as well as registered, equitable incumbrancers on the lands of their debtors? I think not. I expressed an opinion, a few days since,(a) that the effect of that statute is to make every judgmentcreditor an equitable incumbrancer on whatever lands or hereditaments of his debtor he might, before the statute, have taken under an elegit.

1850.-Johnson v. Holdsworth.

What is now contended for is that the clause goes much [*110] further, and makes the judgment a charge, *whether it is registered or not: but I cannot concur in that view of

the case.

In the first place, it is impossible to suppose that the legislature could have meant to alter the Registry Acts by a side-wind, as it were, and without ever alluding to them. But, independently of this general consideration, it seems to me abundantly clear, on the face of the act, that no such intention is to be collected from it. By section 11, it is enacted that it shall be lawful for the sheriff, to whom an elegit shall be directed, to deliver execution, to the judgment-creditor, of all the debtor's lands, a, before the act, he might of a moiety; but there is no power, to the judgment-creditor, to obtain an elegit on any judgment on which he could not have obtained it before. It is certain, therefore, that, in a register county, no unregistered judgment-creditor can get execution against his debtor's lands; and, that being so, it would be impossible to hold that, under the 13th section of the act of Vict., the creditor becomes an equitable incumbrancer, without admitting the strange anomaly that the judgment-creditor is to have the equitable right, although he has not the legal right to which the equitable right was intended to be superadded. My opinion is, that the thirteenth section, notwithstanding the generality of its language, must be read as applying only to judg ments legally perfected, so as to affect the lands of the debtor, and on which the creditor might sue out an elegit. This construction, therefore, excludes unregistered judgments in Yorkshire: and the result is that, according to my view of the case, the plaintiff here has brought all necessary parties before the court, and so is entitled to the usual decree in a suit like the present.

1850.-Balguy v. Broadhurst.

*BALGUY V. BROADHURST.

[*111]

Answer.-Insufficiency.-Defendant.-Privileged Communications.

1850: 2d December.

A defendant admitted that he had in his possession documents relating to the matters in the bill; but refused to set forth a list of them, because they had been procured by his solicitor since the institution of the suit, and for the purpose of his *defence to it; and the same were, as he was advised and insisted, confidential communications.

Held, that the allegation relative to the documents did not justify the defendant's refusal to set forth a list of them; and, therefore, that his answer was insufficient.

THE defendant admitted the allegation in the bill, that he had documents in his possession, relating to the matters mentioned in the bill; but denied that, from those documents or any of them, if produced, the truth of the matters in the bill stated or of any of them, would appear, save as such matters were admitted by his answer or thereby appeared to be true. He added that some of those documents had been procured, by his solicitor, since the institution of the suit, and for the purpose of his defence to it; and that the same were, as he was advised and insisted, confidential communications; and that, and for that reason, he refused to set forth any list or schedule of such last-mentioned documents or to produce the same, or to make any discovery relating thereto.

Mr. Bethell and Mr. Amphlett, in support of exceptions to the answer for insufficiency, said that the reason assigned by the defendant, for not setting forth a list of the last-mentioned documents, was not sufficient.

Mr. Rolt and Mr. G. L. Russell, for the defendant, relied on the allegation, in the answer, that the documents had been procured by the defendant's solicitor since the institution of the suit, and for the purpose of his defence to it; and cited Holmes v. Baddeley, (a) Curling v. Perring.(b)

(a) 1 Phill. 476; and 19 Eng. Ch. R. 475, Am. Ed.

(b) 2 Myl. & Keen, 380; and 7 Eng. Ch. R. part 2, 380, Am. Ed.