(v) The charging order will, however, affect such interest only as the debtor has in the fund, although while the order stands the fund cannot be dealt with, and therefore where the debtor had, previous to the charging order, mortgaged his interest in the fund, but notice had not been given to the trustee, the mortgagee was held entitled to priority (Scott v. Hastings, 4 Kay. & J. 633). A charging ord r when made absolute operates from the making of the conditional order (Haly v. Barry, L. R. 3 Ch. Ap. 42). (w) Where, after the charging order had been obtained, another charging order and order to pay was obtained by a different creditor in another Court, whereupon the bank paid the amount to the creditor obtaining the second charging order, it was held that it was nevertheless responsible to the creditor who had obtained the first order, Salaman v. Donovan, 10 Ir. C. L.R. Ap. 13. 133. A copy of such order of attachment shall be served on the debtor or his attorney or agent (x), and unless the said debtor or some other person interested shall within the space of twenty days from the service of such order of attachment and copy, or from the date of the last service, or such other time as the Court or a Judge may think reasonable, show sufficient cause to the contrary, it shall be lawful for the Court or a Judge, if he shall so think fit, on proof of the service of such order of attachment and copy, to make an order on all persons, corporations, and public companies. whose act or consent is thereto necessary, to transfer the said government stock, funds, annuities, or shares belonging to the said judgment debtor, and standing in his own name, or in the name of any trustee for him for his own benefit, into the name of the said sheriff or other officer as aforesaid, or to make payment of such dividends, interest, and annual produce to said sheriff, and all such persons whose act or consent is so necessary as aforesaid are hereby required to obey such order, and are indemnitied for all things done or permitted pursuant to such order (y): Provided also, that it shall be lawful for such Court or a Judge, on the application of the debtor or any person interested, to discharge or vary such order for attachment, and to award such costs, on such application, as to the said Court or a Judge shall seem just (8). (x) The order may be served personally out of the jurisdiction (Wheelhouse v. Sharpe, 9 Ir. L. R. 154). The section, as may be observed, provides that the copy of the order is to be served on the debtor or his attorney. Where, however, the debtor's attorney had himself obtained a charging order against the fund, service of the order on such attorney was held not to be sufficient without proof that he still continued to act for the debtor (Martin v. Duffy, 6 Ir. Jur. N. S. 383); and as to serving the attorney, see further, Guinness v. Armit, ubi supra. Iu Johnson v. Hodgens, 8 Ir. Jur. N. S. 187, the Court substituted service on the defendant's father, and an attorney Substituting who had previously acted for him. As to substituting service upon the exe- service. cutors in whose name the stock is standing, see Guinness v. Armit, ubi supra. All the parties interested must of course be brought before the Court, as, for instance, the assignees of the defendant, if he becomes bankrupt after the making of the charging order (Mills v. Horner, 6 Ir. L. R. 210). (y) See note (w), supra. doubtful. (2) Where the rights of the execution debtor to the stock, &c., attached Where right are doubtful, or depend on difficult questions of equity, the Court will not discharge the order, but will leave the parties to settle their rights in a Court of Equity (Cannock v. Butler, Ir. R. 2 C. L. 8; Rogers v. Holloway, 12 L. J. C. P. 182; Cragg v. Taylor, L. R. 1 Ex. 148, L. R. 2 Ex. 131). So, also, if it be doubtful whether the Court had jurisdiction to make the order it may refuse to interfere (Witham v. Lynch, 1 Ex. 391). If when cause comes to be shown, the motion is heard before a Judge, Appeal. either party may, if dissatisfied with his decision, appeal to the Court (Brown v. Bamford, 9 M. & W. 42; ante, p. 4). But the order cannot be entered on the judgment roll for the purpose of being reviewed by a Court of Error Error. (Newton v. Boodle, 18 L. J. C. P. 73). 134. If such debtor shall have an interest in any such stock, funds, annuities, or shares, or the dividends, interest, and annual produce thereof, not vested or in possession, but contingent or in remainder or reversion, it shall be lawful for the Court or a Judge, on a like application, to be made by the party obtaining such judgment, to make an order ex parte that such stock, funds, annuities, shares, dividends, interest, or annual produce, or a competent part thereof, shall stand charged with the payment of the amount for which such judgment shall have been recovered, and interest on so much as shall remain unsatisfied, unless satisfactory cause shall be shown to the contrary by the said debtor or some other person interested, within a time to be named in said order, and a copy of such order shall be served on the debtor or his attorney or agent; and unless cause shall be shown to the contrary within the time specified in such order, or such time as the Court or a Judge may think proper, it shall be lawful for the Court or a Judge, if it shall so think fit, on proof of the service of such order, to make same absolute; and such order shall entitle the creditor to all such as he would have been entitled to if such charge had remedies been made in his favour by the debtor: provided that such Court or a Judge shall, on the application of such debtor, or any person interested, have full power to discharge or vary such order, and to award such costs, upon such application as the Court or a Judge may think fit (a). Charging tingent and order on con future interests. 3 & 4 Vict. c. 82, 3 & 4 Vict. c. 105, s. 23. How realized. Order in respect of money in name of Ac countant General. 3 & Vic. c. 82 8. 1, 3 & 4 Vic. c. 105, B. 23. Where stock &c. in Court of Chancery. Form of order. From what time order binds. 4 (a) See the notes to sections 133 & 134. When the order is made under this section, the creditor will have to proceed in a Court of Equity to realize his execution. 135. If such debtor shall have an estate or interest in any stock, funds, annuities, or shares, or money, which shall be standing in the name of the Accountant-General of the Court of Chancery, or of the Court of the Commissioners for the Sale of Incumbered Estates in Ireland, or the Master of any such Superior Court of Cominon Law, or in the dividends, interest, or annual produce thereof, it shall be lawful for the Court or a Judge to make such order as to such stock, funds, annuities, shares, and the dividends, interest, and annual produce thereof, as if the same had been standing in the name of a trustee for such judgment debtor; but no such order shall prevent the said governor and company of the Bank of Ireland or any such public company from permitting any transfer of such stock, funds, annuities, and shares, or money, or the payment of the dividends, interest, or annual produce thereof, in such manner as the said Court of Chancery, or the Commissioners for the Sale of Incumbered Estates in Ireland, or the Court of Common Law may direct: provided, however, that it shall be lawful for the said Court of Chancery or Court of Common Law, or the said Court of the Commissioners for the Sale of Incumbered Estates, on the application of the judgment creditor, to make such order in respect of same as shall be just (b). (b) As to the manner in which an application is to be made to the Court under this section, and the costs of the order, see ante, the notes to section 132; where also it will be seen that, before obtaining an order, it is necessary to revive the judgment, and also that it is prudent to issue a writ of execution. As to the nature of the debtor's interest in the fund in order to entitle the plaintiff to an order, see note (t) to section 132. It will be observed that an order attaching the defendant's interest in the fund may be obtained before allocation, if it appears that there is a residue coming to him (Synan v. Tuthill, 7 Ir. Jur. O. S. 288; Byrne v. M'Nevin, 6 Ir. Jur. O. S. 126; and see also Corah v. Dillon, 2 Ir. Jur. N. S. 422). The order will in general be conditional only in the first instance (Goodly v. Devereux, 6 Ir. Jur. O. S. 114; Wright v. Millar, 2 Ir. Jur. N. S. 234). As to the form of the order, see (Brown v. Ellis, 3 Ir. C. L. R. 106). The order when made absolute binds from the time of the making of the conditional order. In (French v. Balfe, 6 Ir. C. L. R. 63), it was held that if after the making of the conditional order a charging order be obtained from the Court of Chancery, under 3 & 4 Vict. c. 105, and lodged with the Accountant-General before the conditional order is made absolute, the Chancery order would prevail, and in that case it seems to have been also considered that the lodging of the order with the Accountant-General of the Court of Chancery without obtaining an order from that Court does not charge the stock. However, where a creditor entered a suggestion upon the record entitling him to execution against the executrix of a deceased defendant and obtained an order nisi charging shares belonging to the debtor, and upon the same day, but after the making of the order, a decree was made for the administration of the estate of the deceased it was held, an application having been made by the plaintiff in the administration suit to restrain further proceedings by the creditor, that the injunction ought not to be granted, and that a charging order when made absolute operates from the making of the order nisi (Haly v. Barry, L. R. 3 Ch. Ap. 452). The remedy given by the above section is confined to judgment creditors at Common Law, and therefore the interest of a debtor in a fund standing in the Landed Estates Court cannot be attached under a decree of the Court of Chancery (The Commissioners of Charitable Donations v. Archbold, 14 Ir. C. L. R. 67). Neither can the Lord Chancellor make an order under this section (Reg. v. Uuiacke, 4 Ir. Ch. Rep. 492). Courts of Equity may, however, make charging orders under the 3 & 4 Vict. c. 105, sections 23 & 27, in the cases provided for there. Suitors' Fee It was held that the Suitors' Fee Fund was money withing the meaning of this section, and that therefore a charging order might be made upon the Fund. pension of a defendant payable thereout, (Quinn v. O'Keeffe, 10 Ir. C. L. R. 393); and see Witham v. Lynch, 1 Ex. 391. however, been transferred to the Consolidated 88. The Suitors' Fee Fund has Under 23 & 24 Vict. c. 82, the interest of a defendant in stock, &c. in the Landed Estates Court may be attached. The Act in question was rendered necessary by the decision in (Sawyer v. Norris, 10 Ir. C. L. R. 168), in which case it was held that the above section did not extend to stock, &c., in that Court. Stock &c. in the Landed Estates Court. beneficed 136. Where to a writ of fieri facias issued against a bene- Execution ficed clergyman the sheriff shall have returned nulla bona against a and that the defendant is a beneficed clerk having no lay fee, clergyman. the plaintiff may as of course issue a writ of execution de bonis ecclesiasticis, directed to the bishop of any diocese in which the defendant may have a benefice, and at any time after a writ of execution de bonis ecclesiasticis shall have been delivered to any bishop, the plaintiff may apply to the Court by motion for an order that the bishop do certify what has been done under the writ, and that the sequestrator do account; and where, in obedience to any such writ of fieri facias, de bonis ecclesiasticis, a sequestration of the ecclesiastical benefice shall be issued by any bishop, it shall be lawful for any Court in which any judgment shall be had against the same defendant, and execution issued and returned nulla bona, to make an order extending the said sequestration to the matter of the said last-mentioned judgment, without any Sequestration. Return of writ. further writ or proceeding; and the said last-mentioned creditor shall have the benefit of such sequestration, and with priority as from the date of such order of extension, as if it were a sequestration issued at his own instance (c). (c) Under the provisions of the Irish Church Act, 1869, writs of sequestration must become very rare. A writ of sequestrari facias is a writ directed to the bishop of a diocese commanding him to make of the ecclesiastical goods of the defendant the amount of the plaintiff's debt. It might be either in the nature of a fieri facias or levari facias, the latter being the more extensive and usual remedy. As in the case of other writs of execution, the judgment should be revived before it issued (Baker v. Armstrong, 4 Ir. C. L. R. 177). It is, or was, the only way in which the profits of a benefice could be attached, as the judgment could not be registered as a mortgage against ecclesiastical property (Luby v. Dixon, 1 Ir. L. T. 101). The bishop with reference to these writs stands in precisely the same situation as the sheriff in reference to ordinary writs, and may be ruled to return the writ, and is bound to obey the order of the Court (Phelps v. St. John, 10 Ex. 895). The writ is not, however, returnable till the whole amount of the debt, &c., is raised (Disney v. Eyre, Alc. & Nap. 34); but the bishop may at any time be ordered by the Court to certify what has been done under the writ (Hart v. Volluns, 1 Dowl. 434), and see the section, supra. Duty of The sequestrator, who is appointed by the bishop, may be ordered by the Sequestrator. Court to account (Garstin v. Williams, 3 Ir. Law Rep 512); and such an order may be made upon the application, not merely of the plaintiff as provided by the present section, but upon the application of the defendant as well (Garstin v. Williams, ubi supra). The accounting takes place in the Master's office. The sequestrator when appointed is entitled under the 12th and 13th Vict. c. 67, to recover and sue for in his own name, the profits, &c., of the living, including the rents and profits of the glebe lands, and he is liable for any arrears while in possession, unless he makes out a case of diligence (Middleton v. Maxwell, 13 Ir. L. R. 261). When the sequestrator has been ordered to account, he ought not, pending the confirmation of the Master's report, pay over to the bishop the money in his hands; and if he does, the Court, will, notwithstanding, compel him to bring in the amount (Galbraith v. Pilkington, 10 Ir. L. R. 473). If the money has not been paid over to the bishop, but remains in the sequestrator's hands, the Court may order the sequestrator's bond to be handed over to the party entitled to the money (Galbraith v. Pilkington, 12 Ir. L. R. 70). The sequestration of the bishop for non-residence is entitled to priority over the plaintiff's sequestration (Middleton v. Maxwell, 13 Ir. L. R. 261). So, also, the expense of keeping the glebe house in repair is a charge on the moiety of the sum levied under a sequestration in priority to the demand of the creditor (Lardner v. Fitzgerald, 1 Ir. Jur. N. S. 469). 137. No sheriff or other officer shall return a devastavit against any defendant, being an executor or administrator, in any action, but upon an inquisition taken on the oaths of twelve lawful men of his county, to whom challenge may be taken; and the plaintiff shall give the defendant ten days |