A judgment creditor had obtained a charging order nisi but before it was made absolute a decree was made for the administration of the debtor’s estate. An injunction was sought in order to restrain further proceedings by the judgment creditor, but that was refused on the basis that the charging order nisi having been made, it could only be defeated by something prior to it. The Master held that the charging order nisi was not to be regarded as something different from the charging order absolute.
Held: A charging order absolute takes effect from the date of the charging order nisi. Page Wood LJ said ‘I do not think that such a case can be treated as one in which the creditor’s title is incomplete.’ Selwyn LJ: ‘The language of the [Common Law Procedure Act 1852] appears to me quite opposed to this view, it speaks of one order which is at first an order nisi and is afterwards made absolute.’
Judges:
Page Wood LJ
Citations:
(1868) 3 Ch App 452
Jurisdiction:
England and Wales
Cited by:
Overruled – Clarke v Coutts and Co CA 17-Jun-2002
The respondent bank had obtained a charging order nisi against the applicant’s property. The applicant then obtained an order under s252 of the act requiring any further action against his estate to be stayed. The bank nevertheless obtained an order . .
Cited – Brereton v Edwards 1888
Money in the control of the Court may be the subject of execution with the leave of the Court. The Judgments Acts did not apply to money held in Court. Lord Esher MR said: ‘section 14 does not apply to money . . it applies only to Government stock, . .
Lists of cited by and citing cases may be incomplete.
Insolvency, Litigation Practice
Updated: 10 June 2022; Ref: scu.182280
