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1905

tration district the same as though the defen- Judgment. dant or defendants had, in writing, under his or their hand PErdue, J. or hands and seal or seals charged the said lands and hereditaments with the amount of the said judgment."

The expression "interest or estate," in the above section is much narrower than that used in the Judgments Act, R.S.M. 1902, c. 91, relating to King's Bench judgments. By the latter Act it is declared that the registration shall form a lien or charge on the lands of the judgment debtor, and the interpretation clause declares land or lands to include "all real property and every estate, right, title and interest in land or real property, both legal and equitable and of what nature and kind soever, and any contingent, executory or future interest therein, and a possibility coupled with an interest in such land or real property, whether the object of the gift or limitation of such interest. or possibility be ascertained or not, and also a right of entry, whether immediate or future, and whether vested or contingent, into or upon land." The provisions of the Judgments Act relate only to judgments or orders of the Court of King's Bench.

The difference in effect between a registered County Court judgment and a registered King's Bench judgment appears to have existed since the establishment of these Courts. The provision relating to the former contained in Con. Stat. Man., c. 41, s. 116, is in the same words as those cited from section 213 of the present County Courts Act. On the other hand, a writ of fieri facias against lands, while such writs existed, or a registered judgment in the higher Court had the same binding effect against the debtor's lands by the provisions of the Con. Stat. of Manitoba as a registered judgment has at present; see Con. Stat., Man., c. 37, s. 83.

1905 In Ontario, the former provisions declaring what Judgment. should be saleable under a fi. fa. lands are similar in effect. to those above cited from the Manitoba Judgments Act; PERDUE, J. see Con. Stat. U.C., 1859, c. 90, ss. 5 & 11. Yet Mr. Leith lays it down that under these provisions a right of purchase cannot be sold under a fi. fa. lands; see Leith's Real Prop. Statutes, p. 314. Subsequent amendments have extended the effect of the writ in Ontario. In Bank of Montreal v. Condon, 11 M.R. 366, Taylor, C.J., held that the interest of a vendor who had entered into an agreement to sell land was not bound by a registered certificate of judgment, following Parke v. Riley, 3 E. & A.

215.

It is unnecessary to consider whether the interest of the defendant Withers could have been sold under the wider provisions contained in the Judgments Act. The question to be considered is, what is the nature of the estate or interest, if any, which he has in the land which may be bound by the plaintiff's registered County Court judgment? If the expression used in the County Courts Act is to be construed as covering everything covered by the much fuller and wider provision contained in the Judgments Act, then the careful enumeration in the latter Act of the various estates and interests, present, executory or future, legal or equitable, vested or contingent, was superfluous. It rather appears that the Legislature intended that a judgment of the higher Court should, when registered, bind all interests of the debtor in real estate in as full a manner as possible, although some interests may have been overlooked and have escaped enumeration. There was not, apparently, an intention on the part of the Legislature to give the same drastic effect to a registered judgment in the inferior Court.

Applying the expression used in the County Courts Act to the present case, what was the "interest or estate,"

1905

which Withers took under the agreement and which he must be regarded as having charged in writing under his Judgment. hand and seal with the amount of the debt? The expres PERDUE.J. sion certainly does not cover an assignment of the contract or of the covenants contained in it. Nor does it cover the future or expectant interest or estate which Withers may have expected to acquire by reason of anything thereafter to be done by him in pursuance of the agreements or covenants. He had, no doubt, some present interest in the land as distinguished from the future or contingent interest. He had a right of possession and, if he continued to cultivate the land and perform the conditions of the contract, he would eventually be entitled to an absolute estate. But to execute a bare charge on the land would only affect his present interest, whatever that is, and would not assign the benefit of the contract or operate by way of estoppel so as to convey the after acquired

estate.

Prior to the commencement of this action, the defendant Houghton, as he claims, cancelled the agreement by service of notice on Withers for non-payment of purchase money and non-performance of covenants. According to the evidence, there seems to have been default on the part of Withers in carrying out the terms of the agreement. The plaintiff claims that he, as holder of a registered judgment, was entitled to notice of this cancellation. The agreement, however, provides that the declaration making the contract null and void may be made by notice to the purchaser. This is not a notice calling upon him to do anything, but a declaration that the agreement has been forfeited or declared null and void. As the judgment creditor cannot be regarded as an assignee of the agree ment he is not entitled to notice, and, in any event, notice to Withers seems to be all that is required under the provisions of the cancellation.

1905

Judgment.

PERDUE, J.

It was also contended by the plaintiff that the provisions for terminating the agreement upon default were of the nature of a forfeiture, the same penalty being meted out for a trifling default as for a serious one. Re Dagenham Dock Co., L.R. 8 Ch. 1022, and Hudson's Bay Co. v. MacDonald, 4 M.R. 480, were relied on in support of this proposition. It was claimed that a Court of equity would relieve against such a forfeiture. If the default on Withers' part included, as Houghton states, failure to fulfill the conditions as to cropping and failure to do the breaking of the land as agreed, it might be questionable whether the Court would, on the evidence offered in this case, relieve and, if it decided to do so, upon what terms it would grant the relief. But the plaintiff is not an assignee of the agreement or entitled to perform it. He cannot, therefore, claim relief against the alleged forfeiture. The only person who can claim such a remedy is Withers, and he appears to have concurred in or accepted the cancellation of the agreement.

The County Court judgment was in existence and the certificate registered against Withers before and at the time the agreement was entered into. There can be no contention that it charged when registered an existing interest in him. It is sought to charge with the judgment his after acquired interest and this at the expense of Houghton, who had innocently entered into an agreement to sell land, on deferred payments and on crop conditions, to a man then actually burdened with a judgment. In this aspect of the case, the merits can scarcely be said to be with the plaintiff.

There were some other points raised in the case with which it does not seem necessary to deal.

The appeal should be dismissed with costs.

Appeal dismissed with costs.

1905

WALKER V. ROBINSON.

Before PERDUE, J.

Practice-Motion to rescind order not made ex parte-Jurisdiction of Referee in Chambers-King's Bench Act, Rules 442, 449— Dismissal of action-Entering judgment for defendant-Appeal from Referee.

1. The referee in chambers has no power to rescind his own order not made ex parte.

Re St. Nazaire Co. (1879) 12 Ch. D. 80. and Preston v. Allsup, (1895) 1 Ch. 141. followed.

2. An appeal will not lie from the refusal of the referee to rescind such an order.

3. The referee has no jurisdiction, under Rule 449 of The K. B. Act or otherwise, even with the consent of the parties, to make an order for the entry of judgment for the defendant, after the action has been entered for trial. Such a judgment can then only be pronounced by a Judge sitting in Court.

4. The referee would have power, under Rule 422 (d) of the Act, to dismiss an action by the consent of the parties.

5. When the judgment entered in an action is unauthorized and unsupported by any order or pronouncement of the Court, an appeal will lie from the refusal of the referee to set it aside on motion before him, although such motion also included an application to him to rescind his own order previously made not ex parte in the same action.

ARGUED: 9th March, 1905.

DECIDED: 13th March, 1905.

APPEAL from the referee.

The action was commenced by two plaintiffs, a brother Statement. and sister, against their father to compel the administration of the estate of his deceased wife.

A defence was put in and notice of trial given. Then a præcipe order was obtained changing the solicitor for plaintiff Walker to Huggard and another changing the solicitor for plaintiff Robinson to Haney. These were

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