58
( 46 )
CHAPTER XIII.
Foreign Attachment.
LXXIX. Proceedings by foreign attachment may be taken in manner hereafter See Ordinance mentioned in all suits on contracts or for Detinue or Trover provided that the cause of No. 9 of 1855. action arose within the Colony.
As to "cause of Action" see
clause
2 Upon the filing in Court by the plaintiff in any such suit of an affidavit to the Interpretation following effect, that is to say:--
a. That the cause of action arose within the Colony;
b. That the plaintiff has taken out a writ of summons against the defendant but that the defendant is absent from the Colony or that there is probable cause to believe that the defendant is concealing himself to evade proceedings;
c. That the defendant is beneficially entitled to lands or to any interest therein within the Colony, or to any monies, securities for money, goods, chattels or other property whatsoever in the custody or under the control of any person within the jurisdiction, or that such person (hereinafter called the garnishee) is indebted to the defendant;
the Registrar may issue a writ of general attachment against all the property moveable and immoveable of the defendant which shall be called a writ of "Foreign Attachment" and shall be made returnable not less than fourteen days after the date thereof except by special leave of the Court.
3. Absence from the Colony shall for the purpose of proceedings by foreign attachment be taken to be absence for the time being whether the party shall ever have been within the Colony or not.
4. Before any such writ shall issue the plaintiff or some one on his behalf, shall enter into a bond with one or more sufficient sureties to be approved by the Registrar in a penal sum equal to twice the estimated value of the property sought to be attached, or in any less sun by special leave of the Court, the condition of which said hond shall be that in case the defendant shall, at any time within the period limited by this Ordinance in that behalf, cause the writ to be set aside, or any judgment which may be given in the suit to be reversed or varied, the plaintiff will pay to the defendant all such sums of money, damages, costs and charges as the Court may order and award on account of or in relation to the said suit and the said attachment or either of them: Provided that the Court shall not award a larger amount of damages than it is competent to decree in an action for damages and such award shall bar any suit for damages in respect of such attachinent.
5. The bond shall be in such form as the Court may from time to time, or in any particular case, approve and direct, and shall be entered into before, and deposited with the Registrar; and whenever it shall be made to appear. to the satisfaction of the Court upon affidavit or otherwise that under the circumstances it is expedient that the writ should issue forthwith and before the bond shall have been entered into as aforesaid the Court may order the writ to issue accordingly, upon such terms, if any, as it shall think fit, and by the same order shall limit, the time, not exceeding fifteen days from the date of the issue of the writ, within which the bond must be entered into and deposited as aforesaid; and in case of default of complying with the requirements of such order within the time thereby limited, the writ shall be ipso facto dissolved, and the Court may thereupon award costs and damages to the defendant in the manner hereinbefore provided in the case of a judgment in the suit being reversed or varied.
6. Where two or more writs of foreign attachment shall issue, at the suit of different plaintiffs they shall take priority respectively according to the date and time of the issue thereof, unless the Court shall otherwise direct.
7. Property in the custody or under the control of any public Officer in his official capacity shall be liable to attachment with the consent of the Crown; and property in custodiâ legis shall be liable to attachment with the consent of the Court.
8. Where the defendant is beneficially entitled to lands or any interest therein within the Colony, a memorial containing a copy of the writ of foreign attachment shall be registered in the Land Office established under Ordinance No. 3 of 1844 in a special book to be kept for the purpose and to be called the "Foreign Attachment Book;" and the date and hour of such registration shall be duly noted and entered in the said book; and in case such writ of foreign attachment shall be dissolved, or the judgment in the suit shall be satisfied, a certificate to that effect under the hand of the Registrar and the seal of the Court may be filed at the Land Office and thereupon the memorial shall be deemed to have been cancelled.
(47)
9. From the time of the registration in the Land Office of the memorial of a writ of foreign attachment, all lands within the Colony or any interest therein to which the defendant mentioned in such writ is beneficially entitled whether solely or jointly with others, shall to the extent of his interest therein and subject to crown debts and to any bond fide prior title thereto or lien or charge thereon and to the rights and powers of prior incumbrancers, be attached to satisfy the claim of the plaintiff.
10. From the time of the service upon the garnishce of a writ of foreign attach- ment, all property whatsoever other than lands or any interest therein, to which the defendant mentioned in such weit is then beneficially entitled, whether solely or jointly with others and which is in the custody or under the control of the garnislice, and all debts then due or accruing due by the garnishee to the defendant shall to the extent of the defendant's interest therein and subject to crown debts and to any bonû fide prior title thereto, or lien or charge thereon, and to the rights and powers of prior incumbrancers, be respectively attached in the hands of such garnishee, to satisfy the claim of the plaintiff.
11. The Court may at any time before judgment upon such grounds as it shall deem sufficient order any property, other than lands or any interest therein, attached nder such writ to be sold in such manter as it shall direct and the net proceeds to be paid into Court.
12. Auy garnishee who shall without leave or order of the Court at any time after the service of the writ and before the attachment shall be dissolved, knowingly and wilfully part with the custody or control of any property attached in his hands, or remove the same out of the jurisdiction of the Court, or sell or dispose of the same, or pay over any debt dug by him to the defendant excepting only to or to the use of the plaintiff, shall pay such damages to the plaintiff as the Court shall award not exceeding such an amount as the Court could decrée in an action for damages and shall be deemed guilty of contempt of Court,
13. In all cases where there shall be reasonable cause to believe that any property attached is in danger of being removed out of the Colony or of being sold or otherwise disposed of the Court may direct the Sheriff to seize and detain such property until further order, and the costs incurred by such seizure and detention shall be costs in the suit.
14. Notice of the issue of the writ of foreign attachment shall be inserted twice in the Gazette and not less than three times in some local newspaper, unless the Court shall, by reason of the defendant having entered an appearance or upon any other ground, dispense with the publication of such notice.
15. In cases where the place of residence of the defendant out of the jurisdiction, shall be known, the Court may if it shall think fit, upon the application of the garnishee, or of any friend, or agent of the defendant, or of its own motion, and upon such terms as it may deem reasonable, order that notice of the writ be served upon the defendant out of the jurisdiction and that further proceedings be stayed until further order, but without prejudice to the attachment under the writ.
16. After the issue of the writ of foreign attachment, (but subject to the provisions of the last preceding paragraph) the plaintiff may forthwith file his petition and upon such day after the return of the writ as the Court shall appoint may proceed to establish his claim as in ordinary suits in which there has been due service of the petition, or leave has been obtained to proceed ex parte.
17. Upon the hearing of the petition the Court shall proceed to enquire and determine whether in fact the plaintiff's case is within the provisions herein contained relating to foreign attachment and whether the plaintiff has established his claina and shall pronounce judgment accordingly; and if the plaintiff shall obtain a judgment the Court may at the same or any subsequent sitting examine or permit the plaintiff to examine the garnishce and any other persons, and determine what property moveable or immoveable is subject to attachment under the writ or writs issued.
18. The Court may of its own motion or at the instance of any person interested in the enquiry summon any person whom it may think necessary and examine him in relation to such property and may require the garnishee as well as the person summoned as aforesaid to produce all deeds and documents in his possession or power relating to such property.
19. If the plaintiff shall obtain judginent the Court may at the time of pronouncing the decree in favor of the plaintiff or at any subsequent sitting order that execution do issue against all or any part of the property attached which the Court shall have
Page 60Page 61
No comments yet.
Private notes are available after approval.