CO129-164 - Sir Kennedy - 1873 [7-9] — Page 41

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(8)

Guardian for Purpose of Suit.

XV. Where on default made by a defendant in cutering an appearance to the S. R. 278, suit after due service of the writ of summons, it appears to the Court that he is an infant or a person of weak or unsound mind (not so found by inquisition), so that he is unable of himself to defend the suit, the Court may, on the application of the plaintiff, or of its own motion, appoint some fit person to be guardian of the defendant for the purposes of the suit, by whom he may defend the same.

2. But no such order shall be made except on notice, after expiration of the time for appearance and four days at least before the day named in the notice for the hearing of the application; such notice shall be left at the dwelling-house of the person with whom or under whose care the defendant was at the time of service of the writ of summons, and also, in the case of an infant not residing with or under the care of his father or guardian, served on or left at the dwelling-house of such father or guardian, unless the Court thinks fit in any case to dispense with such last-mentioned service.

CHAPTER II.

ARREST OF ABSCONDING DEFENDANT-INTERIM ATTACHMENT INJUNCTIONS-- DETENTION OF SHIPS.

Arrest of Absconding Defendant.

XVI. If in any suit, not being a suit for land or other immoveable property, the 1. C. 74-80. defendant, with intent to avoid or delay the plaintiff, or to obstruct or delay the execu tion of any decree that may be passed against him, is about to leave the jurisdiction of the Court, or has disposed of or removed from the jurisdiction of the Court his property or any part thereof, the plaintiff may, either at the institution of the suit or at any time there- after until final judgment, make an application to the Court that security be taken for the appearance of the defendant to answer any judgment that may be passed against him in the suit.

2. If the Court, after making such investigation at it may consider necessary, shall be of opinion that there is probable cause for believing that the defendant is about to leave its jurisdiction with the intent of avoiding or delaying the plaintiff, or that he has disposed of or removed from the jurisdiction of the Court his property or any part thereof with the intent to obstruct or delay the execution of any decree, it shall be lawful for the Court to issue a warrant to the proper Officer, enjoining him to bring the defendant before the Court, that he may show cause why he should not give good and sufficient bail for his appearance.

3. If the defendant fail to show such cause, the Court shall order him to give bail for his appearance at any time when called upon while the suit is pending, and until execution or satisfaction of any decree that may be passed against him in the suit; and the surety or sureties shall undertake, in default of such appearance, to pay any sum of money that may be adjudged against the defendant in the suit, with

costs.

4. Should a defendant offer, in lieu of bail for his appearance, to deposit a sum of money or other valuable property sufficient to answer the claim against him, with the costs of the suit, the Court may accept such deposit.

5. In the event of the defendant neither furnishing security nor offering a sufficient deposit, he may be committed to custody until the decision of the suit, or if judgment be given against the defendant until the execution of the decree if the Court shall so order.

6. If it shall appear to the Court that the arrest of the defendant was applied for on insufficient grounds, or if the suit of the plaintiff is dismissed, or judgment is given against him by default or otherwise, and it shall appear to the Court that there was no probable ground for instituting the suit, the Court may (on the applica- tion of the defendant) award against the plaintiff in its decree such amount, not exceeding the sum of one thousand Dollars, as it may deem a reasonable compensation to the defendant for any injury or loss which he may have sustained by reason of such

1. C. 74-90. R. J. C. 15.

arrest:

(9)

Provided that the Court shall not award a larger amount of compensation under this section than it is competent to such Court to decree in an action for dama- An award of compensation under this section shall bar any suit for damages in respect of such arrest.

ges.

7. If in any suit the defendant is about to leave the colony with intent to remain absent so long that the plaintiff will or may thereby be obstructed or delayed in the execution of any decree that may be passed against the defendant, the plaintiff may make an application to the Court to the effect and in the manner aforesaid, and the procedure thereupon shall be in all respects the same as hereinbefore provided.

of

Interim Attachment.

XVII. If the defendant, with the intent to obstruct or delay the execution any decree that may be passed against him, is about to dispose of his property or any part thereof, or to remove any such property from the jurisdiction of the Court, the plaintiff may apply to the Court, either at the time of the institution of the suit or at any time thereafter until final judgment, to call upon the defendant to furnish sufficient security to fulfil any decree that may be passed against him in the suit, and, on his failing to give such security, to direct that any property moveable or immoveable, belonging to the defendant, shall be attached until the further order of the Court.

2. The application shall contain a specification of the property required to be at- tached, and the estimated value of each article or item thereof; and the plaintiff shall, at the time of making the application, declare that the defendant is about to dispose of or remove his property with such intent as aforesaid.

3. If the Court, after making such investigation as it may consider necessary, shall be satisfied that the defendant is about to dispose of or remove his property, with intent to obstruct or delay the execution of the decree, it shall be lawful for the Court to issue a warrant to the proper Officer, commanding him to call upon the defendant, within a time to be fixed by the Court, either to furnish security in such sum as may be specified in the order, to produce and place at the disposal of the Court when required the said property or the value of the same or such portion thereof as may be sufficient to fulfil the decree, or to appear and show cause why he should not furnish security. The Court may also in the warrant direct the attachment until further order of the whole or any portion of the property specified in the application.

4. If the defendant fail to show such cause or to furnish the required security within the time fixed by the Court, the Court may direct that the property specified in the application, if not already attached, or such portion thereof as shall be sufficient to fulfil the decree, shall be attached until further order. If the defendant show such cause or furnish the required security, and the property specified in the application or any portion of it shall have been attached, the Court shall order the attachment to be withdrawn.

5. The attachment shall be made according to the nature of the property to be attach- ed, in the manner hereinafter prescribed for the attachment of property in execution of decree for money.

6. In the event of any claim being perferred to the property attached before judg- ment, such claim shall be investigated in the manner hereinafter prescribed for the investigation of claims to property attached in execution of a decree for money.

7. In all cases of attachment before judgment, the Court shall at any time remove the same, on the defendant furnishing security as above required together with security for the costs of the attachment.

8. If it shall appear to the Court that the attachment was applied for on insufficient grounds, or if the suit of the plaintiff is dismissed or judgment is given against him by default or otherwise, and it shall appear to the Court that there was no probable ground for instituting the suit, the Court may (on the application of the defendant) award against the plaintiff in its decree such amount, not exceeding the sum of one thousand Dollars, as it may deem a reasonable compensation to the defendant for the expense or injury occasioned to him by the the attachment of his property: Provided that the Court shall not award a larger amount of compensation under this section than it is competent to such Court to decree in an action for damages. An award of com pensation under this section shall bar any suit for damages in respect of such attachment. 9. Attachments before judgment shall not affect the rights of persons not parties to the suit, nor bar any person holding a decree against the defendant from applying for the sale of the property under attachment in execution of such decree.